Ensuring Legality, Reasonableness and Fairness of Criminal

Punishment through Criminal Law Sanctions

Ruslan V. Zakomoldin

, Vladimir K. Duyunov

and Inna A. Podroykina

Togliatti State University, Togliatti, Russia

Rostov Branch of the Russian Customs Academy, Rostov-on-Don, Russia

Keywords: criminal law impact, punishability, criminal punishment, system of criminal punishments, individualization

of criminal punishment, justice of criminal punishment, criminal law sanction.

Abstract: The article is devoted to the analysis of the correlation between criminal law sanctions and criminal

punishment. It is noted that the criminal law impact is expressed, among other things as a special activity of

the state in the punishability of criminal behavior. At the same time, punishability has two forms of expression

- dispositive form (foreseeing behavior as a crime in the criminal law) and sanctions (establishing a

threatening punishment). Sanctions express a qualitative and quantitative assessment of prohibited acts and

determine the measure of the state's reaction to their commitment. It is concluded that sanctions are an integral

element of the criminal punishment system and contribute to the achievement of both its goals and the

conditions that are necessary for it and its inherent properties and qualities. In particular, these minimum

requirements are legality, reasonableness, and fairness. At the same time, it is noted that the sanctions

themselves must also comply with these characteristics. Thus, it is stated that the establishment of criminal

law sanctions and the appointment and application of criminal punishment are closely interrelated and

interdependent and provide an effective criminal law impact in the aggregate.

1 INTRODUCTION

Criminal law influence is a special activity of state

bodies associated with the provision of the necessary

preventive, punitive and educational influence on the

behavior of persons who have committed a crime and

other unstable persons with the help of the resources

of criminal law. In general, we are talking about the

state's response to certain crimes and crime as a

phenomenon. At the same time, this reaction is a

complex dynamic process, including doctrinal

comprehension, normative regulation and practical

implementation (Podroykina, I.A., Duyunov, V.K.,

2020, Дуюнов, В.К., 2021, Дуюнов, В.К., 2020,

Дуюнов, В.К., Закомолдин, Р.В., 2020).

The "criminal law impact" category is closely

related to the phenomenon of punishment.

Punishment is a complex and ambiguous

phenomenon that has a moral, ethical, social and legal

content. In the broadest sense, it is a kind of social and

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legal phenomenon. Punishability has a broad and

narrow meaning in criminal law. In a broad sense,

punishability is an inherent property (consequence) of

wrongfulness, i.e. the prohibition of criminal

behavior as such. In a narrow sense, this category

means precisely a certain reaction of the state to the

corresponding criminal behavior. Thus, criminal law

punishability has two forms of expression -

dispositive form (foreseeing behavior as a crime in

the criminal law) and sanctions (establishing a

threatening punishment) (Guzeeva, O.S., 2020,

Tagantsev, N.S., 1994).

2 METHODOLOGY

The study used both general scientific and specific

scientific methods of cognition of social phenomena

and processes (induction, analysis, synthesis,

comparison, systemic, etc.).

Zakomoldin, R., Duyunov, V. and Podroykina, I.

Ensuring Legality, Reasonableness and Fairness of Criminal Punishment through Criminal Law Sanctions.

DOI: 10.5220/0010661700003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 50-53

ISBN: 978-989-758-598-2

3 RESULTS AND DISCUSSION

There is a fundamental discrepancy in criminal law

theory and law enforcement practice between the

categories of "criminal punishment", "punishment

provided for by the criminal law" and "punishment

imposed by a court verdict" (Guzeeva, O.S., 2020).

The first has a doctrinal fundamental nature. The

second is of a normative constructive nature and is

expressed through the sanctions of the criminal law

norms of the Special Part of the Criminal Code. The

third is of an applied nature and is implemented in law

enforcement. Of course, these categories are closely

interrelated and interdependent, which is natural,

since the system of criminal punishments, being

complex and integral, is not limited by the provisions

of Article 44 of the Criminal Code alone, and is

regulated by the whole complex of criminal law

norms and provisions on punishment, which includes

both the types of criminal punishment themselves,

general and special rules for its appointment, and the

sanctions of articles of the Special Part (Duyunov,

V.K., 2010, Duyunov, V.K., Zakomoldin, R.V.,

2011). It is the integrity of the system that implies that

all of its elements are closely interrelated and

interdependent, and a change in one, inevitably and

naturally causes a change in all the others (Studies in

the general theory of systems: a collection of

translations, 1969). Therefore, the effective

functioning of only one element of the system in

isolation from the others is impossible, since in this

case, it is impossible to achieve the goals facing the

entire system (Valeeva, L.R., 2012).

Sanctions directly fix the qualitative and

quantitative measure of the state's reaction to a crime,

which is why it is appropriate and logical to classify

them as a part of a punishment system. As L.R.

Valeeva rightly notes, their real role in criminal law

is realized only in connection with the criminal

punishment. Therefore, sanctions act as a

measurement tool for a "measure" in this system

(Valeeva, L.R., 2012).

Initially, the individualization of punishment is

aimed at establishing a measure of the state's response

to a crime in sanctions, and then in imposing a

punishment in each specific case in the process of

applying the corresponding norm and its sanctions. In

this regard, as O.S. Guzeeva correctly points out, “it

is necessary to clearly distinguish punishment as an

element of a sanction reinforcing a particular legal

prohibition on the one hand, and punishment as a real

measure of state influence imposed by a court verdict

on the other hand, or in other words, to distinguish the

establishment of criminal punishment and the

application of criminal punishment" (Guzeeva, O.S.,

2021)

We believe that in the context and within the

framework of punishability, criminal punishment and

sanction are correlated as content and form, as a

means and measure (Doctrinal and legislative

concepts in modern criminal law of Russia, 2013).

With the help of a sanction, the legislator measures

from the generally envisaged criminal punishment

that of its variety, term, and scope that correspond to

a specific crime. A sanction expresses a state-

imperious reaction to a crime, its assessment, which

provides both preventing (through a hypothetical

fixation of the punishment in a sanction), and

counteraction (through the actual application of the

punishment by the court provided for in the sanction).

We should distinguish between the concepts of

"punishment" and "penalization" in the context of our

research. We assume that they relate as a whole and

as a part. As K.V. Chemerinsky notes, “penalization

is the process of establishing the punishability of a

criminal act, expressed through the establishment in

the sanction of an article of the Special Part of the

Criminal Code of the Russian Federation of the type

and amount of punishment that can be chosen by the

court when convicted for this crime” (Russian

Criminal Law. General and Special parts, 2015). At

the same time, we agree with the author that the

application of punishment is outside the scope of

penalization. Although there is a different opinion,

which is expressed, for example, by A.I. Korobeyev

that penalization is both the process of determining

the nature of the punishability of acts and their actual

punishability (Full course of criminal law. Crime and

Punishment, 2008). We believe that when applying

punishment it is more correct to talk not about

penalization, but the individualization of punishment

as an independent stage within a broader category -

punishability. Thus, criminal law sanctions are a

formal expression of penalization.

It is generally agreed that the punishment should

be lawful, reasonable and fair, which is associated

with the sanctions that are predetermined by the

legislator and applied when imposing a punishment.

At the same time, these processes are interrelated and

interdependent, since the establishment and

application of sanctions, in turn, are dictated by the

need to ensure the legality, justification, and fairness

of criminal punishment.

Needless to say, that the category of justice is very

relative. However, in Article 6 of the Criminal Code

of the Russian Federation, the legislator made an

attempt to identify guidelines for the fairness of

criminal punishment, pointing out the need for its

Ensuring Legality, Reasonableness and Fairness of Criminal Punishment through Criminal Law Sanctions

compliance with the nature and degree of public

danger of the committed act. Therefore, sanctions are

an expression of the final assessment of the prohibited

acts from the standpoint of their public danger. Thus,

through the application of sanctions, the

implementation of the principle of justice laid down

in them by the legislator is ensured. For these

purposes, the sanctions must be balanced, i.e. they

must comply with certain requirements for their

content and design in terms of their internal qualities

and properties (Podroykina, I.A., 2021). In particular,

these minimum conditions are:

a) alternative, providing a choice (Lipinsky, D.A.,

Musatkina, A.A. Chuklova E.V., 2018);

b) commensuration (proportionality) to the nature

and degree of public danger of the deed (Burmagin,

S.V., 2021);

c) internal consistency (Banchikova, M.V., 2021).

Any criminal law sanction must be justified. And

we are talking about both social and dogmatic

justification. Social rationale is dynamic and based on

social processes, when regulations change under the

influence of changing external circumstances. The

doctrinal rationale, on the contrary, is static, since it

is focused on the formal component - the compliance

of legislative provisions with the rules of an

established legal technique (Valeev, M.T., 2019).

Both components are necessary and significant, since

they provide dynamic stability of criminal legislation

- a combination of its stability of variability in general

and the effectiveness of criminal law impact in

particular (Duyunov, V.K., Zakomoldin, R.V.,

Butenko, T.P., Galoyan, A.R., 2020).

Thus, the opinion of L.L. Kruglikov, that criminal

law sanctions should be considered not as just an

element of criminal law and an article of criminal law,

but as a legal structure that must comply with certain

rules and requirements for both form and content, is

quite fair. At the same time, without a doubt, the

construction of criminal law sanctions should be

based on the system of criminal punishments and the

system of the bodies of crime (Kruglikov, L.L.,

2013).

However, at present, in a crisis of criminal policy,

as experts rightly point out, sanctions are often

proper scientific (first of all, criminal law and

criminological) substantiation. As a result, they are

generally unsystematic, casuistic, and in many cases

do not meet any of their minimum requirements

(Golenko, D.V., 2020).

4 CONCLUSION

Thus, the effectiveness of criminal law in terms of

punishability depends both on the establishment of

criminal punishment in sanctions and on its practical

implementation, that is, it is ensured by the

coordinated, interdependent, systemic work of the

legislator and law enforcer. In this regard, it is

appropriate to talk about the dynamic stability of

criminal legislation, that is, a reasonable balanced

combination of its stability and variability, as well as

the need to ensure a balance between its humanization

and repressiveness (Duyunov, V.K., Zakomoldin,

R.V., Butenko, T.P., Galoyan, A.R., 2020).

Therefore, this requires a modern science-based

criminal policy (Efremova, M.A., Rogova, E.V.,

Parkhomenko, D.A., Klebanov, L.R., Gorshenin,

A.A., 2019).

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Ensuring Legality, Reasonableness and Fairness of Criminal Punishment through Criminal Law Sanctions