Post-Penitentiary Probation: Conceptual Principles

Introduction: the article considers post-penitentiary resocialization as a state policy direction on adapting convicts who have served their sentence or have been released from serving it to the conditions of life in society (social adaptation), protecting rights and interests, resolving social conflict caused by crime, and preventing new crimes. Purpose: based on the study of the legal nature and social conditionality of post-penitentiary probation, to identify its conceptual foundations (principles), solve the problem of their compliance with the legislative regulation of probation. Methods: the research is based on a dialectical approach to the study of social processes and phenomena. It uses traditional methods for the sciences of criminal law and criminology – analysis and synthesis; comparative legal; retrospective; formal legal; logical; and comparative. Private scientific methods are also used: legal-dogmatic and the method of interpreting legal norms. Results: the author describes doctrinal origins of the post-penitentiary probation concept as an alternative to punishment, criminal prosecution, and an important stage of adaptation of a convicted person to life in society, defined as resocialization, social adaptation and social rehabilitation in the Federal Law No. 10-FZ of February 6, 2023 “On Probation in the Russian Federation”. It is noted that when the developer of both the federal law and subordinate regulatory legal acts supplementing it do not have these or similar principles in their arsenal, this leads to conceptual shortcomings. As an example, we can draw attention to the fact that Article 3 of the above-mentioned federal law contains conflicting principles: coercion and voluntariness. The problem of uncertainty of the status of probation is noted, since, on the one hand, its application falls within the competence of the penal system, and on the other hand, there is not only regulation, but even mention of probation in criminal and penal legislation. The article argues that foreign experience in the application of probation should be combined with domestic characteristics of public relations covered by the field of probation. Conclusion: it seems that probation is an institution that, on the one hand, is not a punishment, and on the other hand, provides an opportunity to work with a convict, including after serving a sentence, returning him/ her to society and adapting him/her to life in it. The author has developed four conceptual principles of probation: rejection of stigmatization, voluntary probation, focus on the return of a culprit to normal life in society (re-socialization), participation of the society in re-socialization of convicts. Shortcomings and contradictions of the legal regulation of probation are revealed.