Report No. 42
3.11. Outline of separate legislation recommended.-
While we consider that this system with the necessary modifications should be adopted and tried, we do not suggest any textual amendment of the Code for implementing it straightaway, as we are conscious that it cannot be worked without a host of provisions dealing with various administrative matters. Here we indicate, very broadly, the features of the punishment which we have in mind, and recommend that appropriate legislation should be undertaken separately on the subject.-
(1) Corrective labour, without deprivation of freedom, is intended to be a substitute for short term imprisonment, so that the defects of jail administration, like contamination by association with hardened criminals, may be avoided.
(2) The essence of the punishment will be working on reduced wages at a public work centre.
(3) The punishment will be awarded by the court, and not by the executive government or by prison authorities.
(4) This will be different from "work-release" (as employed in the U.S.A.), or "semi-liberte" (as in force in France or Belgium), under which the prisoner is released from confinement during specified hours of the day, usually for the purpose of private employment1 He returns to confinement during non-working hours. It is a mode of punishment for persons convicted of minor offences and sentenced to short-term imprisonment. Used as a sentencing procedure, work-release occupies a position somewhere between probation and full-time incarceration. The corrective labour system, however, involves no deprivation of freedom, whether total or partial.
(5) The punishment of corrective labour will be primarily suitable for persons belonging to the labouring classes.
(6) Offences punishable with death, imprisonment for life or imprisonment for a term exceeding 7 years should be excluded from this punishment.
(7) The maximum period of corrective labour will be one year and the minimum one month.
(8) There will be no deprivation of freedom. Work shall be assigned in accordance with the judgment of the court, either at the place of work of the convicted person, or in any place determined by the agencies in charge of administration of the law, but, as far as possible, in the convicted person's district of residence.
(9) Deductions from the wages of the person sentenced to corrective labour will be made at a rate laid down by the judgment of the court and credited to the State. The rate may be between 5% and 20% of the wages.
(10) If the convicted person evades correctional labour at the assigned place of work, then the court may direct him to undergo corrective labour at places determined by the agencies in charge of administration of this punishment, and if he evades this also, then the court may punish him with imprisonment in default.
(11) The period of imprisonment in default will be so calculated that for every three days of the unserved term of corrective labour, there shall be not more than one day of imprisonment in default. The actual period will be fixed by the court on an application made to it after disobedience by the convict.2
1. Stanley Group, "Work Release for short-term Offenders in France and the United States" (July 1963), 10 Canadian Journal of Corrections, No. 3, p. 490.
2. Legislation on the lines indicated above could be undertaken either by the Centre under entry 1 (Criminal Law) of the Concurrent List or by the States under entry 4, (Prisons, reformatories, Borstal institutions and other institutions of a like nature and persons detained therein) on the State List.
3.12. Compensation for injury caused.-
Reparation to the victim of an offence has been receiving increased attention in recent times. In part, this is due to a realisation that mere punishment of the offender, though it may exhaust the primary function of the criminal law, is not total fulfilment of the role of the law. It has been observed1.-
"The injured party is not always adequately served by civil courts, and in the criminal law he often takes a back seat. Having given his evidence, he stands aside and watches the offended majesty of public justice being satisfied by conviction and sentence. He himself is fortunate if he gets compensation, or even his expenses. Often, he must have recourse to the civil courts to reclaim his property, and, not infrequently, may have suffered a loss or injury for which he cannot be recompensed."
At one time in the evolution of criminal jurisprudence, the idea of reparation of the victim of the wrong occupied a major place in most legal systems. The punitive or criminal aspect of the wrong gradually claimed recognition and, for some time, the two were mixed or combined in the same proceedings. Later, the civil or reparation aspect became subordinate, and the criminal courts concerned themselves almost wholly with the punitive aspect. In recent times, however, the compensation aspect is regaining its importance, not of course as the principal aim of criminal proceedings, but as a recognised ancillary thereto.
1. Note "Crime and Punishmen.-Reparation to the Victim", (1959) 227 Law Times 117.
3.13. Three patterns of compensation.-
Three patterns of compensating the victim of a crime can be noted. The State may take upon itself this responsibility in defined classes of cases. Secondly, the offender can be sentenced to pay a fine by way of punishment for the offence and, out of that fine, compensation can be awarded to the victim. Thirdly, the court trying the offender can, in addition to punishing him according to law, direct him to pay compensation to the victim of the crime, or otherwise make amends by repairing the damage done by the offence.
3.14. Opinion in favour of proposal.-
The question whether this direct method of compensating the victim of a crime should be adopted and provided for in the Penal Code was included in the questionnaire. Objection to this suggestion was voiced by a number of persons consulted, principally on the apprehension that it might convert the criminal trial into a protracted 'inquiry into matters of a civil nature. There was however a large body of opinion in favour of the proposal.
3.15. Provision for compensation in other legal systems.-
We notice that in some European countries provision is made for payment of compensation to the victim of the crime in the course of the criminal proceedings. In France, they can be combined with the criminal prosecution, a clai.-actione civil.-by the injured part.-partie civil.-for compensation1. The guiding principle of the actione civile is that, as far as possible, the injured party should be put back into the position which he occupied before the offence took place. Damages are awarded to cover not only the loss actually sustained, but also potential loss or loss of profit consequential upon the injury.
The damages must not, however, exceed the loss which they are designed to repair. Remedies other than the award of damages are also envisaged, such as the restitution of stolen property, closing of the premises where a trade has been carried on illegally, advertising the findings of the Court in suitable newspapers at the expense of the accused, and payment of the costs of the prosecution. While the actione civile can be brought only by the injured party, other persons concerned besides the accused, may be joined as defendants. It has been stated that a certain measure of immediate personal interest in setting the machinery of criminal law in motion can supplement the inadequacy of public action, that civil proceedings are costly compared with the criminal prosecution, and that to allow the victim to intervene is an expedient procedure2.
Under the German Code of Criminal Procedure3, the injured person or his heir may, in the criminal proceedings, assert against the accused a claim 'involving property rights arising out of the offence'. To facilitate the filing of such claim, the law provides that the injured party should be notified of the filing of the criminal proceedings. The claim can be made by oral or written motion and has the same effect as bringing an action in civil litigation. The injured party, or his representative is entitled to participate in the main trial.
In Russia, one of the punishments prescribed in the Criminal Code is 'imposition of the duty to make amends for the harm caused.4 Execution of this duty consists in (i) direct elimination, by one's own resources, of the harm caused, or (ii) compensation, with one's own means, for material loss, or (iii) a public apology before the victim or before members of the collective in a form prescribed by the court. Punishment in the first form may be assigned when the court considers that the offender is capable of making amends in the indicated manner.
Punishment in the second form may be assigned if the loss caused does not exceed one hundred roubles. Punishment in the third form may be assigned if there ha, been an infringement of personal integrity or dignity or a violation of the rules of socialist communal life not causing material loss. If the convicted person fails to carry out the court's order within the specified period, the court may replace this punishment by correctional tasks, or a fine or dismissal from office, or social censure5.
1. French Code of Criminal Procedure, Articles 2, 3, 85 to 91, 114 to 121, 371 to 375.
2. Views of French Commentator Vabres, Traite de troit, Criminal et de Legislation, Penal Comparee, 3rd Edn., paras. 1091, 1128, referred to by Howard in (1958) 21 Modem Law Review 387.
3. Sections 403 to 406a, German Code of Criminal Procedure.
4. RSFSR Criminal Code (1960), Article 21.
5. RSFSR Criminal Code (1960), Article 32.