ST 47 of the Criminal Code of the Russian Federation.
1. Deprivation of the right to hold certain positions or engage in certain activities consists of a prohibition to hold positions in the civil service, in local government bodies, or to engage in certain professional or other activities.
2. Deprivation of the right to hold certain positions or engage in certain activities is established for a period of one to five years as the main type of punishment and for a period of six months to three years as an additional type of punishment. In cases specifically provided for by the relevant articles of the Special Part of this Code, deprivation of the right to hold certain positions or engage in certain activities is established for a term of up to twenty years as an additional type of punishment.
3. Deprivation of the right to hold certain positions or engage in certain activities may be imposed as an additional type of punishment and in cases where it is not provided for by the relevant article of the Special Part of this Code as a punishment for the relevant crime, if, taking into account the nature and degree of public danger of the crime committed and the identity of the guilty person, the court finds it impossible to retain his right to occupy certain positions or engage in certain activities.
4. If this type of punishment is imposed as an addition to compulsory labor, correctional labor, restriction of freedom, as well as in the case of a suspended sentence, its term is calculated from the moment the court verdict enters into legal force. If deprivation of the right to hold certain positions or engage in certain activities is imposed as an additional type of punishment to arrest, detention in a disciplinary military unit, forced labor, or imprisonment, it applies to the entire period of serving the specified main types of punishment, but its term is calculated from the moment their departure.
Commentary to Art. 47 Criminal Code
1. Deprivation of the right to hold certain positions consists of a prohibition to hold positions only in the civil service or in local government bodies. The specific type of such positions must be indicated in the sentence.
2. When imposing a sentence in the form of deprivation of the right to engage in certain activities, the sentence specifies the type of such activity (pharmaceutical, teaching, managing public or private transport, providing legal services, etc.). An activity of the same nature, depending on the circumstances, can be professional or other (for example, driving a vehicle).
3. Deprivation of the right to hold certain positions or engage in certain activities may be imposed as both a primary and an additional type of punishment. The court has the right to apply to a person who has committed a crime in connection with his position or while engaging in certain activities, as an additional type of punishment, deprivation of the right to occupy certain positions or engage in certain activities, regardless of the fact that this type of punishment is not provided for by the sanction of the law under which the perpetrator was convicted , citing in the descriptive and motivational part of the verdict the reasons for the decision made. It does not matter whether the person performed the relevant duties permanently or temporarily, by order or direction of the relevant official. The fact that at the time of sentencing a person did not hold a certain position or was not engaged in certain activities does not deprive the court of the right to impose this punishment.
4. The period of deprivation of the right to hold certain positions or engage in certain activities does not count the time during which the convicted person held positions prohibited for him or was engaged in activities prohibited for him (Article 36 of the Penal Code of the Russian Federation).
Comments on the article
The commented article essentially regulates two independent punishments:
- deprivation of the right to hold certain positions;
- deprivation of the right to engage in certain professional or other activities.
Deprivation of the right to hold certain positions consists of a prohibition to hold positions only in the civil service or in local government. The specific type of such positions must be indicated in the sentence.
When imposing a sentence in the form of deprivation of the right to engage in certain activities, the type of such activity (pharmaceutical, pedagogical, etc.) is specified in the sentence. An activity of the same nature, depending on the circumstances, can be professional or other (for example, driving a vehicle).
Deprivation of the right to hold certain positions or engage in certain activities may be imposed as both a primary and additional punishment. It is assigned as the main one if this type of punishment is enshrined in the sanction of the applicable article of the Special Part of the Criminal Code, as well as in the presence of exceptional mitigating circumstances (Article of the Criminal Code).
The court has the right to apply to a person who has committed a crime in connection with his position or while engaging in certain activities, as an additional type of punishment, deprivation of the right to occupy certain positions or engage in certain activities, regardless of the fact that this type of punishment is not provided for by the sanction of the law under which the perpetrator was convicted , citing in the descriptive and motivational part of the verdict the reasons for the decision made. It does not matter whether the person performed the relevant duties permanently or temporarily, by order or direction of the relevant official.
When imposing an additional punishment in the form of deprivation of the right to drive vehicles, if there are grounds for it and taking into account the circumstances mitigating and aggravating the punishment, it is necessary to decide on the advisability of its application in relation to a person for whom driving a vehicle is a profession (clause 40 of the Resolution of the Plenum Supreme Court of the Russian Federation “On the practice of imposing criminal punishment by the Courts of the Russian Federation”).
Deprivation of the right to hold certain positions or engage in certain activities cannot be imposed simultaneously as a primary and additional punishment. It should also be borne in mind that deprivation of the right to hold certain positions and engage in certain activities is not applied simultaneously for the same crime.
The fact that at the time of sentencing a person did not hold a certain position or was not engaged in certain activities does not deprive the court of the right to impose this punishment.
In Art. 47 of the Criminal Code defines the minimum and maximum terms of this type of punishment. If deprivation of the right to hold certain positions or engage in certain activities is imposed as the main punishment, its duration ranges from one to five years; if as an additional one - from six months to three years.
In cases specifically provided for by the relevant articles of the Special Part of the Criminal Code, the type of punishment in question is imposed for a term of up to 20 years as an additional punishment (for example, part 3 of article 131, part 3 of article 230 of the Criminal Code).
The methods for calculating terms depend on the order of imposition of the type of punishment in question. If it is appointed as an additional one and is added to punishments not related to imprisonment, the term is calculated from the moment the sentence enters into legal force, i.e. the terms of the main and additional punishments begin to be calculated simultaneously. If it is added to punishments associated with imprisonment, then it applies to the entire period of serving the main sentence, but its term begins to be calculated only from the moment the main sentence is served.
The period of deprivation of the right to hold certain positions or engage in certain activities does not include the time during which the convicted person held positions prohibited for him or was engaged in activities prohibited for him (Article 1 of the Criminal Code of the Russian Federation).
Second commentary to Art. 47 of the Criminal Code of the Russian Federation
1. Deprivation of the right to hold certain positions means a prohibition to hold positions in the civil service or service in local government bodies.
2. Deprivation of the right to engage in a certain activity means a prohibition to engage in a certain profession (medical worker, teacher, accountant, lawyer, legal adviser, etc.). or other (hunting, fishing, collecting medicinal plants, private transportation, etc.) activities.
3. This punishment can be applied both as a main and as an additional type of punishment.
4. As the main punishment, it may be imposed:
a) when indicated as such in the sanction of an article of the Special Part of the Criminal Code of the Russian Federation;
b) in case of their application as a more lenient punishment than that provided for this crime (Article 64 of the Criminal Code);
c) in the event of a jury verdict of leniency (Article 65 of the Criminal Code);
d) in case of replacement of the unserved part of the punishment with a more lenient one (Article 80 of the Criminal Code).
5. This additional punishment may be imposed in cases where it is not provided for by the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation, if, taking into account the nature and degree of public danger of the crime committed and the identity of the perpetrator, the court finds it impossible to preserve his right to occupy certain positions or engage in certain activities. activities.
6. This punishment is imposed as a primary punishment for a period of 1 to 5 years, and as an additional punishment for a period of 6 months to 3 years. However, in cases specifically provided for by the sanctions of the articles of the Special Part of the Criminal Code, it may be imposed as an additional punishment for a term of up to 20 years (for example, parts 3 and 4 of Article 131 of the Criminal Code).
7. When this type of punishment is imposed as an addition to compulsory labor, correctional labor, restriction of freedom, as well as in the case of a suspended sentence, its term is calculated from the moment the sentence enters into legal force. As an additional punishment to arrest, detention in a disciplinary military unit, forced labor and imprisonment, it applies to the entire period of serving these types of punishments, but its term is calculated from the moment they are served.
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Deprivation of special rights
- Part 1 47 Criminal Code
deprivation of the right to hold positions in the state/municipal service
- Part 1 47 Criminal Code
deprivation of the right to engage in certain activities
- Part 3 47 Criminal Code
may be assigned even if it is not included in the sanction article
Period of deprivation
- Part 2 47 Criminal Code
if the main punishment is imposed for a period of 1 to 5 years
- Part 2 47 Criminal Code
if the additional punishment is for a period of 6 months to 3 years
- Part 2 47 Criminal Code
up to 20 years in special cases
Calculation of the term
- Part 4 47 Criminal Code
from the moment the sentence comes into force
- Part 4 47 Criminal Code
or from the moment the main sentence is served
Plenum of the Supreme Court
— clause 8
Plenum No. 58 features of punishment in the form of deprivation of special rights
- paragraph 31
Plenum No. 55 deprivation of the right to hold office in the verdict
Deprivation of the right to operate
Deprivation of rights
Activities: selection of materials, looking for judicial errors
Article 47 of the Criminal Code. Deprivation of the right to hold certain positions or engage in certain activities
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- P.9
Plenum No. 58 deprivation of the right to hold office
1) Deprivation of the right to hold certain positions - consists of a ban on holding positions
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Only state/municipal institutions
Ban on positions
— only in state/municipal institutions
in the public service, in local governments.
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— clause 9
Plenum No. 58 deprivation of the right to engage in activities
Deprivation of the right to engage in certain activities - consists of a prohibition to engage in certain professional or other activities.
2) This punishment is established for the period:
- from 1 to 5 years as the main punishment;
Url Additional information:
— Part 2 45 Criminal Code
deprivation of rights may be an additional punishment
Maximum
Maximum term
deprivation of rights - motivation in the verdict is required
- from 6 months to 3 years as an
additional punishment;
- up to 20 years as an additional punishment, in cases specifically provided for in the Criminal Code.
Url Additional information:
— clause 10
Plenum No. 58, deprivation of rights may occur, even in the absence of a sanction
- clause 36.2
Plenum No. 24 deprivation of rights in corruption cases
- paragraph 25
Plenum No. 12 deprivation of the right to operate under
Part 3 210 of the Criminal Code
- clause 28
Plenum No. 21 deprivation of special rights under environmental articles
— clause 12
Plenum No. 25 on
Part 1 264 of the Criminal Code,
deprivation of rights and restriction of freedom
Under any article of the Criminal Code
No sanction
articles of the Criminal Code - but deprivation of rights can still be imposed
3) This punishment may be imposed as an additional type of punishment in cases where it is not provided for in the relevant article of the
Special Part of the Criminal Code , if the court, taking into account:
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— clause 1
Plenum No. 58 the nature of the hazard depends on the characteristics of the composition
Nature of the danger
The nature of public
danger, consideration when sentencing
—
the nature of the public danger of the crime,
Url Additional information:
— clause 1
Plenum No. 58 degree of danger: consequences, method, type of intent, role
Danger level
Degree of public
danger, consideration when sentencing
—
degree of public danger of the crime,
Url Additional information:
— clause 1
Plenum No. 58 information about the individual, this is characterizing data
Personality
Identity of the culprit
— health, marital status (
clause 1
of Plenum No. 58)
-
the identity of the perpetrator,
recognizes it as impossible for him to retain the right to occupy certain positions or engage in certain activities.
4) The term
of this type of punishment is calculated from the moment the court sentence enters into legal force, in the case of the appointment of this type of punishment as additional to such punishments as:
- compulsory labor;
— correctional work;
— restriction of freedom;
- as well as in case of suspended sentence,
The term of this type of punishment applies to the entire period of serving the main types of punishment, but at the same time its term is calculated from the moment they are served, if assigned as an additional punishment to such punishments as:
— forced labor;
- arrest;
— content in the disciplinary part;
- deprivation of liberty.
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Judicial practice under Article 47 of the Criminal Code of the Russian Federation
Previously, erroneous court decisions were made in terms of determining how to use the article. The verdict under paragraph a, part 5 of Art. was indicative. 290 of the Criminal Code of the Russian Federation. As part of the proceedings and decision, the court found that as a preventive measure, deprivation of the right to participate in government affairs as the main punishment and to work in the profession for 3 years would be applied. The cassation did not make any changes. The Supreme Court of the Russian Federation found that duality of punishments is unacceptable and canceled that part of the indictment where the profession was listed (Resolution of the Presidium of the Supreme Court of the Russian Federation dated July 1, 2009 N 54 P09).
Punishment may be imposed on minor citizens, allowing them to be deprived of the right to engage in a certain type of activity. It is not possible to be a civil or municipal employee of this category.
Giving or receiving a bribe is the main element of a crime for employees, after the commission of which the court decides to deprive the offender of the right to hold state and municipal positions. In this case, the refusal to testify will not be taken into account by the court.
Judicial practice mainly concerns the following issues:
- Wrong purpose.
- His appointment is at the discretion of the court.
Thus, if it is incorrect to assign an additional punishment, practitioners will establish a relationship with the Resolution of the Supreme Court of the Russian Federation, which allows the incorrect part of the sentence to be overturned.
