Recidivism as Legal Background for the Differentiation of Criminal Liability: Conceptual Approaches of Russian and Foreign Legislators

Abstract

The authors examine key stages of the development of theoretical views and concepts of the essence of recidivism lying at the basis of the emergence of professional and organized crime, whose genesis trends pose a special danger for the global community in the 20th and the 21st centuries. It is noted that the problems of counteracting repeat offences were discussed by scholars of different periods of the development of criminological and criminal law doctrines. Besides, the authors state that in contemporary lawmaking practice in the world there are several radically different approaches to the assessment of repeat offences in terms of the differentiation of criminal liability and individualization of punishment. A heightened danger of repeat offences dictates special approaches of lawmakers to the differentiation of criminal liability, to determining its limits in the norms of the Special Parts of criminal legislation in cases of recidivism. The authors describe key stages of the development of the institute of repeat offences and its influence on the differentiation of criminal liability and individualization of punishment in the Russian legislation. They examine key functional roles of the institute of repeat offences: ensuring the differentiation of criminal liability depending on recidivism, determining the limits of its use and the conditions of release; regulation of the algorithm of the individualization of punishment for repeat offences; determining the type of correctional institution to which the offender is allocated in cases of recidivism; execution of punishment. There are two key approaches to assessing repeat offences in terms of the differentiation of criminal liability and the individualization of punishment in the lawmaking practice in the world. The first approach to determining the limits of punishment in case of a repeat offence is based on assessing the personality of the offender, while the second presupposes shifting the emphasis from the personality of the offender to the committed crimes, to recidivism. The authors specifically stress that while the general role of the institute of repeat offences is positive, there are some contradictions in the system of the current Criminal Code of the Russian Federation regarding the lawmakers’ approach to its regulation that have an impact on the differentiation of criminal liability. These contradictions are connected with considerable changes in the contents of Part 2, Art. 68 of the Criminal Code of the Russian Federation introduced by the Federal Law of Dec. 8, 2003 № 162-ФЗ. It states that the term of punishment of any type of repeat offence cannot be under one third of the maximum term for the strictest type of punishment, and it should be restricted by the limits of the sanction in the corresponding article of the Special Part of the Criminal Code of the Russian Federation. Consequently, the introduction of this criminal law norm in the legislative system neutralized the requirement of Part 5, Art. 18 of the Criminal Code of the Russian Federation, according to which repeat offences lead to stricter punishments on the basis and within the limits provided in the Code, while the preventive role of the analyzed criminal law norm that it played in the previous version is lost. In this connection, the authors formulate recommendations on improving the contents of Part 2, Art. 68 of the Criminal Code of the Russian Federation and present its version.