LEGAL INTERESTS OF CONVICTS SENTENCED TO DEPRIVATION OF LIBERTY FOR A FIXED TERM AS A SUBSTANTIVE ELEMENT OF THEIR LEGAL STATUS

Abstract

The article defines the legal interests of convicts sentenced to deprivation of liberty for a fixed term in а system of their legal status. According to the results of studying legal interests of convicts sentenced to deprivation of liberty for a fixed term in a system of their legal status, the main difference between a legal interest and a subjective right of a convict is singled out – a convict can acquire a legal interest through his/her law-abiding behavior on a basis of a legally enforceable decision of an administration of a body or institution for execution of punishments or another authorized person subject. In order to obtain a subjective right, these two conditions are unnecessary. A convict enjoys a corresponding right a priori on a basis of being in a legal status of a convict sentenced to deprivation of liberty for a fixed term, regardless of his/her behavior and a results of its assessment by an administration of a correctional colony. From such positions, at a level of analysis of relevant laws, such institutes are delimited. For example, if the legislator uses an imperative construction with the words «applied», «provided», «transferred», etc., then this presupposes corresponding duty of an administration of a body or institution for execution of punishments to ensure a corresponding right of a convict, and if the words «may be applied», «can be provided», «can be transferred», etc., then this is a legal interest, which requires convicts to take certain lawful actions, and an administration – to assess such actions and make an appropriate law enforcement decision. In any case, a right of a convict is a priori guaranteed to him/her by law and is ensured by an administration of a body or institution for execution of punishments, a social good of both a material and immaterial (spiritual) nature, and a legal interest is a prospective social good by which a convict as a general rule, they do not own (possession of it is always one-time or temporary), but which they can acquire by means of committing lawful actions. The author’s modernized classification of legal interests of convicts sentenced to deprivation of liberty for a fixed term is proposed. In order to align norms of the criminal and executive legislation regarding correlation between the right of convicts, enshrined in Part 1 of Art. 108 of the Criminal and Executive Code of Ukraine, and the legal interest provided for in a form of corresponding incentive measure, it is proposed Paragraph 11 of Part 1 of Art 130 of the Criminal and Executive Code of Ukraine to exclude.