The history of the "public works" institution origin and development in the lawful doctrine and legal system

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The history of the «public works» institution origin and development in the lawful doctrine and legal system

The scientific article is devoted to the research of the public works since the ancient times till nowadays. It characterises the nature of the public works, their necessity and the way of their application in different countries, especially in Ukraine beginning from the ancient times.

The public works as a way of punishment and periods of their development are monitored in chronological sequence.

The public works main functions and the strategic aims of their use are defined.

The article analyses the expediency of the public works introduction to the punishment system.

The public works as a way of an administrative punishment is practically an innovation of administrative and tortious law, that's why it's reasonable to study the development history of this institution.

The author defines the aspects of the public works formation as a kind of an administrative punishment, he also defines the periods of their development.

The attention is paid to the public works history beginning from the civilizations of Ancient Egypt, Babylon, the Roman Empire and other countries. Different kinds of the public works application in these countries and various aims of this way of punishment are studied in the article.

The public works importance and their influence on the economic development of the country are defined in this scientific article. The positive and negative consequences of the public works application as a way of punishment during different historical periods are analysed.

The punishments connected with labour service existed in the Old Rus law (the VI^th - the middle of the XIV^th century), the main written source of which was the Ruska Pravda. The public works development is being analysed in the home-country law.

A great attention is paid to the official documents fixing the cases of the public works application.

The history of the legislative consolidation of the public works institution as a way of punishment and penalty in independent Ukraine is studied beginning from the Criminal Code of Ukraine. The procedure of the punishment execution firstly was regulated in all details by the Corrective Labour Code of Ukraine (Chapter III-B), and since 2004 by the Chapter 8 of the Correctional Code (articles 36-46). In the administrative law the public works as a way of an administrative penalty appeared not so long ago. The author conducted a chronological analysis of the public works in Ukraine.

Human history, beginning from the Ancient Egypt, Babylon, antique cities-states, the Roman Empire, knew enough examples of society mobilisation for executing common national works. Practically they were the variants of the public works organisation and execution.

O.F. Skakun notes that in the countries of Ancient East, Asia and Africa (the east, Asiatic way of the origin of State) first states appeared in the zones of irrigated cropping during the Bronze Age. The execution of great public works connected with constructing channels and other irrigating booms contributed to keeping rural commune and collective ownership of land.

In Europe (the European way of the origin of State) the main factor of the state formation was society division into classes connected with the formation of private ownership of lands, cattle, slaves. In South Europe states appeared during the Iron Age. There wasn't any need in such public works as in the case of the east (Asiatic) way of the origin of State [1, p. 30-31].

But the «Public works» institution remained in the Ancient Rome. As I.D. Mudrak points, the censor gave contracts on the public works on behalf of the state, controlled the quality of their execution, farmed out tax collection and controlled customs duties, income taxes from province [2, p. 36].

Taking into account natural similarity of the «public works» institution in the criminal and administrative law, it's reasonable to consult the origin and development history of the public works as a way of a criminal punishment in the criminal and administrative law. Especially O. Yu. Salmanova thinks that the essential difference between «public works» as an administrative punishment and as a criminal penalty is in the terms fixed by current legislation [3, p. 206].

As V.A. Mozgova notes, «a punishment similar to the modern public works was already fixed in the history of the home-country criminal code.» In different times and in different regulatory legal acts public works had as the same as other names: «compulsory labour», «community-required works», «compulsory public works» «community service», «compulsory labour without imprisonment». However, punishments connected with labour service existed already in Old Rus law (VI - The middle of XIV century), the main written source of which was Ruska Pravda. This way the norms of Ruska Pravda (the articles 56-62, 64) defining legal state of «zakup» s - persons having debts instruments - provisioned that they had to live at court of a lender, work at his farm and use his inventory until they worked a debt out. By the way, in the article 44 of the Ruska Pravda there was a norm: if a thief can't recover the amount of stolen objects, he must work it out counting - half a grivnya per a year of work [4, p. 545].

Similar provisions were provided for in Lithuanian Statutes - great sources of low in Ukrainian territories of Lithuanian and Polish period (the second half of XIV century - the middle of XVI century). The first Lithuanian Statute dated 1529 (chapter 11, article 6) provisioned: if a free man condemned for a crime to settling a certain amount of money he wasn't able to pay, this person had to work this amount out according to the calculations pointed to in the article. And if a guilty person couldn't work the entire amount out during his life, his children had to work the rest of the amount out. The Lithuanian Statutes of 1566 and 1588 contained the same provisions.

In Zaporizka Sich punishments connected with the public works weren't practiced, because executing certain unpaid work in favour of the whole commune of Cossacks was one of their duties. By the way, there was no possibility of establishing any personal dependence of a lawbreaker on a victim in Zaporizka Sichpenalties were imposed only on lawbreaker's property.

«The short mandative process of 1734» (short name) is one of the first codified acts of the Hetmans' State period, in the article 12 it was fixed: if a person convicted of theft for paying money sanctions wasn't able to pay them, he might be forced to work the sanctions out in favour of a victim [4, p. 545].

Thus, in these historical documents involving in the public works was faster a way of the damage or debt compensation, but not a way of punishment, because sentencing to work was just alternative to money sanctions in case of insolvency of a guilty person, and working hours were accounted as a payment of these sanctions. Besides, such works didn't have any socially useful character, but they must have been executed in favour of a victim

During the XIXth - the beginning of the XXth centuries social and legal relations of the biggest part of Ukrainian territories were defined by regulatory legal acts of Russian Empire. The main sources of the Criminal Code in Ukrainian territories that were a part of Russian Empire were the 15^th volume of the Russian Empire Code of Laws dated 1832 (later - Code of criminal laws), the Regulations of criminal and corrective punishments (three redactions: 1845, 1866 and 1885) and the Statute about punishments awarded by magistrates dated 1864. The further development of the punishments connected with compulsory labour without any social isolation of a person is connected with these legal acts. This way, the Code of Laws of 1832 (it get effective during 1840-1842 in Ukraine) provided involving in certain kinds of works as a way of punishment. In the edition of 1842 the Code provided the so-called «labour punishment» among others penalties (the article 16). The article 34 defined the variants of this punishment. Besides, paragraph 7 of article 34 provisioned that a person could be convicted to urban works or works for a private person instead of being held in a working house. However, such replacement took place only if there were no working houses in the territory and it concerned only the third estate representatives. Besides, condemning to works on private persons took place only by private persons' will (p. 52).

The preparations of the Regulations of criminal and corrective punishments began straight after the edition of the Code of Laws of 1832. It was a part of the systematization process of Russian legislation, held under Mukola I. The Regulations of criminal and corrective punishments of 1845 completed this systematization in the field of the criminal law and it was the first codified source of the criminal law in the Russian Empire. The article 90 provisioned that if the convict wasn't able to pay the imposed money sanctions, he would be jailed, but under certain conditions the law-court could prescribe him public works instead of imprisonment, in this case all the money earned by the convict were used to pay these sanctions. The article 89 provisioned another case of the punishment replacement. It allowed judges to replace a short term arrest (for the persons who weren't released from corporal punishments) by public or other determined by the government works».

In V.A. Mozgova opinion, these Regulations are important for studying the history of the public works development, because they are used not only as a way of providing money sanctions or dept payment. The public works are already presented as an alternative to the punishments connected with social isolation of a person [4, p. 545-546].

652 articles concerning minor crimes and offences were removed from the Regulations of 1864 in a result of the Judicial Reform of 1864. Many of them (being paraphrased) were moved to the Statute about punishments awarded by magistrates. The article 9 of the last one provisioned a possibility to replace money sanctions by the public works for insolvent peasants and lower middle class citizens. This replacement could concern the representatives of other classes only «by their request». However, replacing money sanctions by the public works one should be guided by the norms of the acts adopted before, sent to by the article 8 of the Statute. This way, the paragraph 2 of the article 188 of the General regulations about peasants dated 19.02.1861 provisioned that village commune could send slow payers of the «state and community duties» (or their families members) to the public works or earnings to the same or neighbouring district (in exceptional cases to the other governments), in order the earned money come into the «community fund». The term of the works wasn't indicated, so one had to work until he worked the debt out. The article 651 of the Statute about duties said about the analogical measures for the lower middle class citizens. Besides, in the interpretation of certain provisions of the article 8 of the Statute dated 1864 made by the criminal cassational department of the «Governing senate» there was a statement: «A judge can, in cases concerning the felling must condemn to the social works for a violation of the Shteysky or other Statutes of the state government. A magistrate had to adjust the infliction of this punishment with village commune, which could direct to the public works.

The mentioned provisions of the article 8 of the Statute about punishments awarded by magistrates dated 1864 about insolvent to pay the money sanctions were duplicated in the article 85 of the Regulations of criminal and corrective punishments [4, p. 546].

There was the third redaction of the Regulations of criminal and corrective punishments of 1845 in 1885 (the second one was in 1866). The practice of condemning to the works not connected with social isolation of a person as an alternative way of punishment that was allowed before by the article 89 of the Regulations of 1845, was continued in it. This way, the article 45 of the Regulations dated 1885 provisioned that the persons condemned to be sent to the correctional prison divisions for a certain time could be used for executing some urban and other kinds of works. The article 83 allowed condemning persons, who had to be sentenced to a short-term arrest, to the public or other works set by the government for the term of the arrest.

In such a way V.A. Mosgova makes a conclusion that there was a punishment similar by its nature and its name to the modern public works in the home-country law of that period, which was determined by the acts of the Russian Empire. It was provisioned in regulatory legal acts of that period. However the public works weren't an independent kind of punishment as it was applied as an alternative punishment and only in the legally provided cases [4, p. 545-546].

The public works took the further development and new legal regulation during the first years after the October Revolution of 1917. Firstly they were called «obligatory public works», in the later legislative acts - «compulsory labour without sending to the places of confinement», «compulsory labour without holding under arrest». Their historic and legal development became the basis for the modern public and corrective works introduction to the criminal law of our country.

Analysing the history of the public works development in the home-country criminal law after 1917, V.A. Mozgova says: «the basis of the home-country law, including criminal law, during the Soviet period was the law of the RSFSR, later it was the general law of the USSR. One of the first regulative legal acts determining the public works as a way of punishment was the Regulations of the people's commissariat of justice dated 19.12.1917 to the revolutionary tribunals. It contained the list of the crimes that can be judged by the revolutionary tribunal, also the list of the punishments that can be applied to the convicts. But despite the fact that most crimes were quite grave, the people's commissariat of justice could sentence the convicts to the obligatory public works (part 2, paragraph 8). However neither terms nor form of serving this punishment were established» [4, p. 546-547].

On the 23 th January 1918 the People's Commissariat of the Ukrainian Soviet Socialist Republic issued the analogical by its content document named «the Regulation about revolutionary tribunals».

By the way the practice of sentencing to the public works and some other ways of punishment didn't stop before adopting the Regulation. So, the decrees of the Council of People's Commissars «About courts» №2 (dated 15th February 1918) (p. 8) allowed city judges to consult the laws of previous governments if «they weren't cancelled by the revolution and don't contradict the revolutionary conscience». «…don't contradict the revolutionary conscience of the working class» when taking decisions and bringing in verdicts. Sentencing to the public works contradicted neither the legal conscience of the working class, nor the principle of socialistic humanism and the ideas of compulsory educative character of the criminal law proceedings, that ran through all the legislative acts of the first years after the October Revolution [4, p. 547].

In January 1918 the People's Commissariat of the Ukrainian Soviet Socialist Republic adopted the decree «About introduction of the people's court» that practically contained the content of the decree «About court» №1. On 20^th June 1918 the decree «About court» №3 was adopted, it provisioned that the deprivation of liberty by applying the public works for a term under three months was applied without imprisonment (article II) [5, p. 47]. So the public works were used as an alternative to the punishment connected with social isolation of a person.

The further development of the home-country public works institution is represented in the first Criminal Code of the USSR of 1922. The article 32 of the Criminal Code provisioned compulsory works without imprisonment among other ways of punishment, the article 35 divided them into: 1) occupational works when the convict continue working within his specialty with reduction if his wage category, obligatory overtime works and placing to another establishment or to another region; 2) common or unskilled labour. This article defined also the term of this punishment - from seven days to a year. The articles 51 and 52 regulated the procedure of this punishment executing.

This way V.A. Mozgova makes a conclusion that during the Soviet period the public works were first used as an independent way of punishment that was equal for the representatives of all the classes; they were unpaid and mostly common labour [4, p. 547-548]. The punishment had to be used in correctional aims but, as I.G. Bogatyriov said, «the economic rationality was always more important than correctional education of the convicts under conditions of keeping the adequacy of a crime and a punishment» [6, р. 27]. By the way, in the home - country criminal penalties system of the Soviet period the public works had the last legal approval in the Criminal Code of the USSR of 1927.

The legislative revival of the public works in the home-country law began after the proclamation of independence of Ukraine in 1991. Having joined the Council of Europe in 1995, Ukraine began bringing the norms and standards of our country internal policy, including the field of criminal penalties, to the conformance with the norms of international law. Maintaining the world policy of the penalty system reformation in the direction of more widespread applying sanctions without social isolation of a person in the new Criminal Code of Ukraine (2001), it introduced four new ways of punishment that weren't connected with social isolation of a person. They contained also the public works.

This way, V.A. Mozgova makes a conclusion «it was the first time after a long break when the public works began being used as a way of a criminal penalty on 1^st September 2001, when the Criminal Code get validity [4, p. 548].

The public works definition is informative in historic contest in the encyclopaedia of F.A. Brokuauza and I.A. Yefronya: «The public works are the occupations given to the unemployed by the state or local authorities for improving their difficult situation. Especially often this method of help is practiced in case of great disasters, such as a bad harvest, a war, a revolution, an industrial crisis. In ancient Egypt people were involved in great social building works in case of public famine. We possess evidences about great agricultural works introduced by the government of pre-reform France when there was a bad harvest. In times of revolutions the governments often organised some occupations for the unemployed who were turned out because of distempers and depression of industry. In 1789 agricultural works were organised in Paris; in December of 1790 the national assembly assigned 15 million francs for the public works connected with building channels and quays, forestry etc. The things went so bad and the costs became so high that the government had to take emergency measures for reduction the number of workers. In 1848 the provisional government organised public works - so-called national ateliers. In France the unemployed were engaged for shovelling snow and breaking ice, repairing high and block-stone roads, mining and breaking stone in winter. In England the unemployed were hired for cleaning the streets and building the roads. In Ireland they did irrigating and draining works.

In Russia taking into account the agricultural character of the population, the public works were organised mainly for mitigation of disasters happening as a result of serious crop failure, it means that the public works were used for providing earnings for mostly rural population. The social works of the period of extreme crop failure of 1891-92 were especially grandiose. During that period the Social Works Department was established, its head was the general M.N. Annenkov. Different mostly agricultural works were organised in the regions that suffered from crop failure. In the south-east of Russia irrigating works were carried out (in the Irgiz river basin, in the Upper Dnieper, in the region of Ural), 1117000 roubles were assigned for these works: ponds and wells were dug, water sources were cleared away, ravines were afforested and strengthened, dams were built on the banks of little rivers. The great highway works were started in the North Caucasus. The local public works (filling up the ravines and ponds, strengthening the quays etc) were organised in many cities. The public works are the palliative means for mollification of famine caused by unemployment mostly during the period of great public calamities. If we don't take into account the root reasons of all the calamities we can say that the public works are used only for facilitating the life of people in need. No doubt, helping the able-bodied citizens is the most rational when it is connected with carrying the work out.

At the same time, it is said that labour didn't have to be fully paid, but the payment of labour had to be enough for providing necessary subsistence; it is also provisioned that those who want to get a help will make more efforts for finding another activity that would be fully paid. There is one more requirement to the public works, they must be easily carried out by any worker without any previous education; otherwise they stopped being publicly available. The most usual kind of such works was different kinds of agricultural works. Being justified during the years of particular calamities, the public works cause serious denial when they become systematically organised; in this case it would be more correct to pay attention to removing the causes of unemployment. From the entrepreneurial standpoint the public works are mostly unprofitable as a result of low labour productivity.

This way, the historical experience of carrying the public works out studied in the article shows us possible variants of the public works that can be applied to lawbreakers and indicates the problems of low labour productivity during carrying the public works out. All the more in the contest of this research the public works are a penalty that aren't paid at all, this fact only strengthens the problem of their productivity.

To make a research full we must mention the development history of the «public works» institution in the field of social employment and fight with unemployment, however it is necessary to consult the list of the public works of the state employment agency in order to choose the kind of works for carrying out as an administrative penalty.

The XX th century with its social cataclysms: wars, revolutions and economic changes connected with them fully demonstrated all the things that accompanied labour market during the period of change. Taking measures for solving the problem of unemployment, the Central Rada adopted the statute about the public works on 2^nd March 1918. In the first paragraph it was said: «This statute about necessary for the State and society works organisation is issued for fighting with the rise of unemployment and also for employing workers that lost their work in a result of the industry and army demobilisation. There was established the Council headed by the minister or his deputy at the Ministry of labour, it had to coordinate the local activities.

Every following authority inherited the same problems caused by war, political changes and national economy breakdown.

In March 1922 the People's Commissariat of Internal Affairs of USSR sent the circular concerning the public works organisation to guberniya departments of public service that were a part of NKVD: «The rising unemployment and workers movement from guberniyas suffering from hunger will cause in the nearest future the necessity of organisation local common useful works for involving the unemployed. The Principal public service offers to occupy working the public works out program. The minimal quantity of materials and hardware with a wide application of common labour must be used at these works. It is necessary to find resources at the local level by imposing target taxes on the population and enterprises interested in working force» [7].

Nowadays the public works organisation is directed by the Regulation about the procedure of organisation and carrying the remunerative public works out, the Regulation is ratified by the Decree of the Cabinet of Ministers of Ukraine dated 10^th September 2008 №839 [8].

Let's consider the legislative consolidation history of the institution of the public works as a way of punishment and penalty in independent Ukraine. Thus, the public works were introduced to the home-country penalty system by the Criminal Code of Ukraine 2001. The procedure of application of the public works as a way of punishment in al details was firstly regulated by the Corrective labour code of Ukraine (Chapter III-B), and since 2004it is regulated by the 8^th Chapter of the Criminal executive code of Ukraine (the articles 36-40). The public works as a way of an administrative punishment were introduced to the administrative law not so long ago. So, the Administrative Offences Code of Ukraine was supplemented by the chapter 30-A «The order about the public works execution proceeding» by Ukrainian Law dated 24^th September 2008 «About amending some legislative acts of Ukraine that concern improving the road traffic safety regulations». Consequently, an alternative way of an administrative punishment was offered in a number of articles of the Code.

Later, on 2^nd December 2010 a number of amends were made in the Administrative Offences Code of Ukraine. The Supreme Council of Ukraine supplemented the list of sanctions for disorderly conduct, domestic violence, non-execution of protective provisions or non-passage of the correctional program, drinking beer, alcohol or low-alcohol beverages at the places where it is forbidden by law or being drunk in public places by the public works [10].

The procedure of the public works as a way of an administrative penalty execution is regulated by the order of the State Department for the Execution of Sentences dated 25^th February 2009 №3, which ratified the Instruction about the procedure of the public works as an administrative penalty execution [11].

This way, the scientific analysis of the origin and development history of the public works institution allows making a conclusion that the public works as a way of an administrative penalty are practically an innovation in the administrative law, but all the historical roots of the public works are in the field of criminal and criminal executive (penal) law [12, р. 174-175].

Such periods of the public works development as a penalty (punishment) can be defined: 1) formation (VI-XIX centuries), 2) development (XIX - the beginning of the XXth century), 3) formation as an independent punishment (the first years after October 1917-1960), 4) absence of the public works as a penalty (punishment) in the home-country law (1960-2001), 5) recovery and development of the public works institution as a way of criminal punishment in the new Criminal Code of Ukraine (2001 - till nowadays); 6) the public works as a new way of an administrative penalty introduction and development in the Administrative Offences Code of Ukraine (2008 - till nowadays). The public works appeared as a way of an administrative penalty in the XXI^st century when the Law of Ukraine dated 24^th march 2008 «About amending legislative acts of Ukraine that concern improving the road traffic safety regulations, that supplemented the Administrative Offences Code of Ukraine by the article 30-1 «The Public Works» and the Chapter 30-A «The execution of the order about the public works proceeding». It means that their development history should be studied since the XXI^st century.

References

community service punishment legal

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7. The public works - their history and actual state [Electronic resource]. - Access mode: http://www.pechersk.kyiv-city.gov.ua/ukr/? mode=news&need_id=333

8. About ratification of the Regulation of the organisation and execution procedure of the remunerative public works and nullifying some acts of the Cabinet of Ministers of Ukraine [Electronic resource]: the Decree of the Cabinet of Ministers of Ukraine dated 10^th September 2008 №839. - Access mode: http://www.rada.gov.ua

9. The Administrative Offences Code of Ukraine: existing legislation with some supplements and amends dated 15^th February 2011: [according to the official text]. - K.: Alerta; Educational Literature Centre, 2011. - 216 p.

10. About Amending the Administrative Offences Code of Ukraine for aggravating the responsibility for some offences [Electronic resource]: the Law of Ukraine dated 2^nd December 2010 №2744-VI. - Access mode: http://www.rada.gov.ua

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12. Alimov K.O. Historical origins of the public works institution and its development perspectives in the law field / K.O. Alimov // the Herald of Zaporizhzhya national university. - 2011. - №1. - Р. 169-175.

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