The Concept of Recidivism in Criminal Law: Nature and Consequences.

    Recidivism is one of the most important concepts in criminal law, characterized by an increased danger to society posed by the actions of a person who has been convicted of a previous crime with a final judgment. The existence of recidivism gives rise to more severe legal consequences compared to the offender’s initial criminal conduct. 

   Depending on the nature of the relationship between the prior and subsequent offenses, recidivism is classified as general or specific. In general recidivism, homogeneity of guilt is not required. In specific recidivism, there is a repetition of crimes of the same type, which implies an increased degree of public danger from the offender’s criminal conduct. 

   The existence of recidivism has a significant impact on criminal liability. In the legal system, several basic forms of recidivism are distinguished:

 Ñ Simple recidivism. In this situation, the perpetrator commits a new crime after having already been convicted of another, without the conditions for its more severe form being met; 

Ñ Aggravated recidivism. This is a more severe form of recidivism, for which the legislature imposes additional cumulative requirements, such as the commission of a serious intentional crime, prior convictions for serious crimes, and the absence of the required time interval between the individual offenses. This form of recidivism leads to significantly harsher penalties, including an increase in the minimum terms of imprisonment. Dangerous recidivism has a substantial impact on the extent and nature of criminal liability, such as imposing a harsher sentence within the limits provided by law; restricting the possibilities for applying a suspended sentence; and serving the sentence under stricter conditions, including under a strict regime. In cases of dangerous recidivism, stricter requirements are also introduced regarding the eligibility for conditional early release. 

  In certain cases, recidivism functions as an aggravating factor in the definition of the offense, leading to a more severe punishment, while in other cases it is considered an aggravating circumstance in determining the sentence. 

    In terms of its nature and manifestations, recidivism is further subdivided into actual, formal, and penitentiary recidivism.

Ñ Actual recidivism is characterized by the offender’s persistent negative attitude toward the established legal order and reflects a persistent criminal disposition;

Ñ Formal recidivism occurs when the multiple offenses are of a rather random nature and do not reflect a persistent criminal disposition on the part of the offender;

Ñ Penitentiary recidivism occurs when an offender commits a new crime after having already served a sentence of “imprisonment.” In such cases, the individuals have been convicted two or more times for intentional crimes. In this form of recidivism, the individual sentences are not combined into a single sentence but are served separately in accordance with the requirements of the law.

By increasing the sentence, the court imposes a harsher punishment on the offender within the limits provided by law. This limits the possibilities for a suspended sentence. Convicted repeat offenders serve their sentences under harsher conditions or under a strict regime. On the other hand, the conditions for conditional early release of a person serving a sentence of “imprisonment” are stricter.

    Set forth below are the main provisions of the legal framework applicable to the numerous crimes listed in Chapter Two, Section IV of the Penal Code.

Pursuant to Article 23(1) of the Criminal Code, “if several crimes have been committed by a single act, or if a person has committed several separate crimes before a final judgment has been rendered for any of them, the court, after determining a penalty for each crime separately, shall impose the most severe of them. The penalties of public censure and deprivation of rights under Article 37(1)(6), (7), and (9) shall be added to the most severe penalty determined. If deprivation of identical rights is ordered, the one with the longest duration shall be imposed. When the penalties are

 of different types and one of them is a fine or forfeiture, the court may combine it in whole or in part with the most severe penalty.”

     The provision of Article 24 of the Penal Code states that “when the imposed penalties are of the same type, the court may increase the determined total most severe penalty by no more than one-half, but the penalty thus increased may not exceed the sum of the individual penalties, nor the maximum amount provided for the respective type of penalty.”

In Article 25, the legislature provides that “the provisions of Articles 23 and 24 of the Criminal Code shall apply even when a person has been convicted under separate judgments. In such cases, if the sentence under any of the convictions has been served in full or in part, it shall be credited against the total sentence to be served. The probation sentence served is deducted in full from the imprisonment, and vice versa, with two days of probation counting as one day of imprisonment. Where, in respect of one or more of the convictions, the person has been exempted from serving the imposed sentence pursuant to Article 64(1) or Article 66 of the Penal Code, the question of the enforcement of the total sentence shall be resolved upon its determination.”

The cases in which the provisions of Articles 23–25 do not apply to a continuing offense are set forth in Article 26(1) of the Penal Code as follows: “when two or more acts, each of which separately constitutes one or different elements of the same offense, are committed over short periods of time, under the same circumstances, and with uniformity of guilt, whereby the subsequent acts constitute, from an objective and subjective standpoint, a continuation of the preceding ones. In the case of a continuing offense, the perpetrator shall be punished in accordance with the acts included therein, taken in their entirety, and with the overall criminal result caused by them. When the individual acts constitute different elements of the offense, the continuing offense shall be punished according to the more serious of them, taking into account the significance of the acts committed under aggravating circumstances, and the aggravating circumstances themselves, in relation to the overall criminal activity. When the aggravating circumstances do not significantly affect the gravity of the overall criminal activity, the latter is classified under the lesser offense, with the aggravating circumstances taken into account in determining the sentence. Where some of the acts have been completed and others constitute an attempt, and the completed acts do not significantly affect the nature of the overall criminal activity, the perpetrator shall be punished as for an attempt. The provisions of this article do not apply to crimes against the person of different citizens, to crimes committed after the indictment for them has been filed in court, or to crimes committed before the indictment was filed but not included in it.”

     Article 27(1) of the Penal Code regulates cases in which “a person commits a crime after having been convicted by a final judgment of imprisonment but before having served that sentence; the court shall add the sentence under the second conviction, in whole or in part, to the unserved portion of the first sentence, if it is imprisonment. The total sentence determined may not be less than the sentence under the second conviction. The sentence under the second conviction shall be added in full if it is imprisonment for more than five years or if it was imposed for a crime committed as a repeat offense or constituting a dangerous recidivism. When the person has committed a crime after and Under the provisions of Article 28 of the Criminal Code, the penalty prescribed in the special part of the Criminal Code for a repeat offense shall be imposed if the offender has committed an offense after having been convicted by a final judgment for another such offense. This provision also applies when the offenses are of the same nature and involve crimes against public or private property.” 

   Article 29 of the Criminal Code provides for more severe penalties for offenses constituting dangerous recidivism, which are imposed in the following cases:

Ñ When the offender commits the crime after having been convicted of a serious intentional crime punishable by imprisonment of not less than one year, the execution of which has not been suspended under Article 66 of the Criminal Code;”

Ñ When the offender commits the crime after having been sentenced to imprisonment on two or more occasions for intentional crimes of a general nature, provided that, for at least one of those crimes, the execution of the sentence has not been suspended under Article 66 of the Criminal Code.”

The concept of recidivism constitutes an important element of the criminal law system, the significance of which is evident in both substantive legal and criminal policy terms. When applying the aforementioned provisions, the legislature does not take into account crimes committed by a minor.                    In cases where “for a given offense, provisions for both repeat offenses and dangerous recidivism are provided, and the act fulfills the elements of both provisions, the provision on dangerous recidivism applies.”

    Pursuant to Article 30 of the Penal Code, “the provisions of Articles 28 and 29 of the Penal Code shall not apply if five years have elapsed since the completion of the sentence under the previous convictions. Rehabilitation during this period does not preclude their application. In the case of a suspended sentence and conditional early release, the period under paragraph 1 begins to run from the day on which the probationary period has expired.”

The concept of recidivism serves several functions: preventive prevention, aimed at curbing the offender’s future criminal behavior through rehabilitation and the development of a sense of justice that reduces their propensity for such behavior; general prevention aims, through stricter penalties, to send a warning to other members of society about the consequences of unlawful behavior. 

       The concept of recidivism embodies the principle of justice in criminal law. The commission of a new crime after a final conviction reflects a higher degree of culpability and a persistent criminal disposition in the offender, which justifies the imposition of a more severe punishment. In this sense, recidivism functions as a legal fact that leads to a differentiation of criminal liability. 

     It is important to emphasize the protective function of the doctrine of recidivism with respect to society. By imposing harsher penalties, the legislature aims to limit the ability of individuals with a proven criminal disposition to continue harming society, thereby ensuring the protection of public order and security.

 This article examines some aspects of the topic and does not represent full analysis of the problem. 

 Author: Petya Stoevska, Dr. Sc