THE LEGAL STATE OF PUNISHMENT

Abstract

In the science of criminal law, punishment is considered as a threat of punishment, as a property of potential criminal liability. In contrast to this approach, we believe that the legal state of punishability is an integral part of real criminal liability, the result of the implementation of state coercion, the actual restriction of the rights and freedoms of the convicted person while serving the sentence imposed on the guilty verdict of the court. The study of this legal phenomenon, which takes place while serving a sentence, has not been paid due attention in the science of criminal and penal law until now. The concepts of the legal state of punishability and the legal status of convicts do not coincide. In the legal state of punishability, two components can be considered: legal and moral. Legal consists in the restrictions and freedoms of the convicted person, which are provided for by criminal law and the guilty verdict of the court, and for the qualitative and quantitative parameters of these restrictions, the bodies and institutions authorized to execute the sentence should not proceed due to the mandatory verdict of the court. The moral component of the state of punishability is manifested in the sorrows, torments, sufferings suffered by the punished person as a result of the use of state coercion while serving his sentence. European Prison Rules, the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), proceed from the fact that the guilty verdict of the court, which provided for imprisonment, has already caused suffering, so the prison administration should not, when treating prisoners, aggravate their suffering by additional restrictions on rights and freedoms. If international documents refer to the treatment of prisoners, then the domestic penal legislation regulates the execution of punishments. The execution of punishments and the treatment of convicts among themselves do not coincide not only in form, but also in content. In Ukraine, there should be no bodies and institutions for the execution of punishments, but there should be bodies and institutions for the execution of a court verdict. The execution of punishments with the implementation of state coercion in extrajudicial activities should be replaced by the treatment of convicts, which provides for the support of persons already punished by a guilty verdict of the court; taking into account the peculiarities of different categories of offenders in order to most effectively meet their needs; providing prisoners with social assistance to facilitate reintegration into a free society upon release.