Features of deferment of serving sentences for pregnant women in Russia Criminal lawyer

Concept

One of the penalties prescribed by the Criminal Code of the Russian Federation is the replacement of suppression of freedom with a temporary reprieve.

This measure is connected with the court’s refusal to compulsorily deprive of liberty, due to the inappropriateness of the decision taken at the moment in connection with certain conditions.

In the early 90s, an article was introduced into domestic legislation on the replacement of real punishment with a suspended one or its temporary deferment for women who have small children or are in a situation.

The decision raised a lot of questions regarding how to correctly interpret this verdict.

Is it possible to consider a reprieve for pregnant women as a measure of inevitable punishment, or is this one of the ways to avoid real punishment.

In 1996, Article 82 of the Criminal Code of the Russian Federation appeared , detailing this punishment.

The purpose of this measure is the safe birth and upbringing of a child.

This article does not apply to women sentenced to a term of at least five years for grave and especially grave crimes against the person.

Dismissal of a pregnant employee: rights and obligations of the employer

Basic Rule

The general procedure for interaction between an employer and a pregnant employee is prescribed in Chapter.
41 of the Labor Code of the Russian Federation “Features of regulation of the labor of women and persons with family responsibilities.” It specifies guarantees for pregnant women regarding vacations, business trips, overtime and dismissal. In particular, it states that termination of an employment contract with a pregnant woman at the initiative of the employer is not allowed. Effect of Part 1 of Art. 261 of the Labor Code of the Russian Federation applies to all women, including heads of organizations, athletes, coaches, civil and municipal employees - those whose work is regulated by special labor law norms (clause 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1). The only possible exception is formulated in the same article. 261 of the Labor Code of the Russian Federation: it is possible to dismiss a pregnant woman at the initiative of the employer only in the event of liquidation of the organization or when the individual entrepreneur ceases to operate. It would seem that everything is correct: pregnant women cannot be fired. However, in practice, employers find legal ways to part with such employees.

Dismissal on your own or by agreement of the parties - what to choose?

Labor legislation does not in any way restrict a pregnant employee’s right to leave her employer on her own initiative. And for the leader this is a chance to resolve the issue peacefully. When agreeing with an employee on such a dismissal, the manager can meet her halfway and let her go without the obligatory two-week “work off”. It is important to remember here that the employee must write a letter of resignation independently, of her own free will; threats and coercion from the employer are unacceptable and are punishable by law.

Another option to separate peacefully is dismissal by agreement of the parties (Article , Labor Code of the Russian Federation). In this case, initially the initiator can be either the employee or the employer. In this case, the employment contract can be terminated at any time determined by the parties (Article of the Labor Code of the Russian Federation, paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

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The employer and employee sign an agreement, where they express their mutual desire to part ways, indicate the amount of payments, including compensation transferred by the company, the deadline for completing the cooperation and other conditions that are important for the parties. In this case, the employee does not have to write a letter of resignation; one agreement is enough.

Please note: if a woman agrees to resign on her own, she does not receive any additional payments other than calculation and compensation for unused vacation.

Also, by mutual agreement, the agreement can be canceled (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). But the employee may refuse to fulfill the agreement unilaterally if she learned about her pregnancy after signing the agreement. This is one of those pitfalls that employers should always be aware of.

What if the employment contract has expired?

The end of the employment contract (clause 2, part 1, article of the Labor Code of the Russian Federation) is not the most difficult reason for dismissing an employee, but only if we are not talking about a pregnant woman. In order for an employer to dismiss such an employee, two conditions must be met (Part 3 of Article 261 of the Labor Code of the Russian Federation):

- the employment contract must be concluded only for a certain period - for the duration of the duties of another (absent) employee;

- transfer with her consent to another job available to the employer and not contraindicated for health reasons should be impossible.

Before dismissal, the manager is obliged to offer the pregnant employee other work: vacant positions that correspond to her qualifications, as well as lower positions or lower-paid work that the woman can perform taking into account her state of health.

Important! Vacancies must be located in the same area, unless otherwise provided by the collective agreement or other internal documents (Part 3 of Article 261 of the Labor Code of the Russian Federation).

If a pregnant woman agrees to one of the proposed vacancies, the employer extends the term of her employment contract until the end of the pregnancy, regardless of the reason for its end: birth of a child, early miscarriage, termination for medical reasons, etc. (Part 2 of Article 261 Labor Code of the Russian Federation, paragraph 1, 3, paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1). A woman must confirm her pregnancy with a medical certificate at the first request of the manager, but no more than once every three months.

Is it possible to fire a pregnant part-time worker?

Another difficult case is if a pregnant woman works part-time. Often this is a temporary solution and the employer plans to hire a permanent employee for a combined position. Article 288 of the Labor Code of the Russian Federation provides that an employer can terminate an open-ended employment contract with a part-time worker when a new person is hired for this position, for whom this position will be the main one.

What to do with a pregnant woman? She cannot be fired, since labor legislation clearly interprets this situation as dismissal at the initiative of the employer, which means that she falls under Part 1 of Art. 261 Labor Code of the Russian Federation.

How to change the terms of a contract with a pregnant woman?

Prohibition to terminate an employment contract with pregnant employees, established by Part 1 of Art. 261 of the Labor Code of the Russian Federation, applies to cases of dismissal at the initiative of the employer. The employee’s reluctance to continue working in the organization because the terms of the employment contract have changed (clause 7, part 1, article of the Labor Code of the Russian Federation) does not apply to such cases. However, the employer must be prepared to prove that organizational or technological changes were necessary and the new working conditions did not worsen the employee’s situation. The absence of such evidence makes dismissal under clause 7, part 1, art. The Labor Code of the Russian Federation is illegal (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

We have already written in detail about the procedure for making changes to an employment contract in our magazine. Let us only add that the procedure is the same for all employees without exception.

Are pregnant women subject to redundancy?

Reducing the staff of an organization is the initiative of the employer, which means that dismissal of a pregnant woman on this basis is impossible; such mistakes are punishable by fines in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. In addition, for the unjustified dismissal of a pregnant woman, Art. 145 of the Criminal Code of the Russian Federation provides for criminal liability.

What if the company is liquidated?

This is the only basis for dismissing a pregnant employee if the initiative comes from the employer. And in this matter, the procedure will be no different from the dismissal of other employees.

If an organization plans to curtail its activities, it is obliged to inform all its employees about this two months in advance, in writing, signed. And on the last day of their work, pay monetary compensation for all unused vacations (Part 1, Article 127 of the Labor Code of the Russian Federation), as well as severance pay in the amount of average monthly earnings (Part 1, Article 178 of the Labor Code of the Russian Federation). Within two months (in exceptional situations - three) after dismissal, each employee receives from the former employer a benefit in the amount of average monthly earnings.

Important! Do not confuse the closure of a branch and the liquidation of an enterprise. If the employer ceases the work of a department, he is obliged to offer the pregnant employee a transfer to another department or head office.

What if a pregnant woman abuses her position?

Pregnancy does not reduce the employee’s workload or relieve her from the need to comply with the organization’s internal labor regulations and labor legislation. If the expectant mother violates discipline, she can, like any other employee, be subject to disciplinary action - a reprimand or reprimand. But it is impossible to fire such an employee, even if we are talking about multiple/gross violations of labor discipline: absenteeism, tardiness, failure to fulfill work duties, etc.

And this is the very case when the employer may find itself in a hopeless situation. The only measures of influence available to him are a reprimand and a reprimand. To bring a pregnant woman to justice, it is necessary to record a violation, receive a written explanation from the employee (or draw up an act of refusal of explanation with the signatures of three witnesses), assess the severity of the offense and its circumstances, and only then determine the type of punishment and issue an order.

In addition, the HR specialist can enter absenteeism and serious lateness without good reason into the time sheet, then this will be reflected in the violator’s salary and the amount of benefits. But for this, the manager must promptly, in the presence of witnesses, draw up a report on the employee’s absence from the workplace. And do this for each of the absences.

We do not encourage you to look for loopholes in the law to break up with a pregnant employee. We tell you: yes, there are options to do this legally and peacefully, but be extremely careful. Indeed, in the event of an unjustified dismissal of a pregnant woman, the employer faces liability, including criminal liability. Negotiate with employees, look for compromises and complete all documents correctly.

Kinds

There are the following types of deferment of serving a sentence :

Replacement of real punishment for pregnant women and women with young children under 14 years of age. The purpose of the delay is the full upbringing of the child by the mother and his development. We can say that this measure is a suspended sentence.
Respite for persons with drug addiction. These persons are sent to inpatient treatment for a real period of time, and only if they refuse it or completely avoid it, are they sent to a place appointed by the court to serve their sentence.

Deferment of execution is not granted :

persons found guilty of crimes of a terrorist nature or who have committed activities related to crimes of this nature;
persons sentenced to a term of more than five years for especially serious and serious crimes against the person.

Court decisions

Problems with the travel agency
Compensation for damages in favor of the buyer

The case of purchasing dietary supplements on credit

Cheating in a beauty salon

A diet that only makes your wallet thin

Furniture store paid for late payment

When is it used?

This penalty replacement measure is applied if a woman is pregnant or has a child under 8 years of age.

Pregnancy is a condition when a woman requires additional care and qualified assistance, and in case of possible complications, immediate medical intervention.

If the previous Criminal Code considered the possibility of deferment only at the time the woman served her sentence, today the law comes into force both at the time the sentence is served and the sentence is pronounced.

The legislation of the Russian Federation provides for two clauses giving the right to receive a deferment :

Presence of pregnancy. Moreover, the deferment comes into force from the moment pregnancy is established and amounts to the duration of the pregnancy plus the time until the child reaches a certain age.
A woman should not be sentenced to a long term, namely, more than five years.

Reasons for seeking legal assistance

Practice shows that it is very difficult to prove the involvement of medical staff in causing an obstetric injury - special examinations are required, and the issue lies more in the plane of medicine than jurisprudence. Our specialists have experience in solving such cases and know in which cases it is worth seeking help. We have compiled a list of the most common violations by obstetricians.

When monitoring pregnancy:

Rude attitude.
Negligence – refusal to order tests or additional examinations.
Incorrectly chosen treatment, which leads or has already led to the appearance of congenital pathologies in the fetus.
Poorly performed diagnostics, which should have revealed the presence of abnormalities, but did not reveal them. The result is an incorrect method of delivery, severe injuries to the mother and baby.
Lack of direction to continue pregnancy for medical reasons, which led to severe complications or miscarriage.

During childbirth:

Rude and sometimes cruel attitude on the part of doctors and medical staff.
Superficial examination of the mother and child.
Unnecessarily the presence of strangers - medical students or other people - at the examination or during the birth. In this case, the woman in labor receives psychological trauma, because this is too intimate a process.
Conducting examinations not in a separate room, but in the aisle of the maternity ward.
Unreasonable referral for caesarean section when, according to medical conditions, the woman in labor can give birth on her own.
Postpartum complications caused by incorrect diagnosis, negligence of medical staff or incorrectly prescribed treatment.

Cancel

Deferred punishment is replaced by real punishment in the following cases :

c

the commission by a woman of a grave or especially grave crime against a person, as well as by a woman sentenced to a term of more than five years;
participation of women in activities related to the commission of terrorist acts;
cancellation of the deferment may occur if the woman commits another crime at the time of her action;
Abortion, miscarriage or death of a child at the time of the delay may cause its replacement for a real term. In addition, these situations are considered separately in each case, and sometimes the penalty imposed at the court hearing can be replaced with a more lenient one.

Thus, the replacement of real punishment for pregnant women has its own nuances and is valid only under certain conditions by court decision.

In some cases, a deferment can be interpreted as replacing a real term with a conditional one.

However, it is worth remembering that there are cases when applying a deferment is considered impossible .

Why us?

Our lawyers have invaluable experience in protecting the rights of women in labor. The company's lawyers know the specifics of civil and criminal proceedings in which medical institutions participate. This allows you to develop the right tactics of behavior and achieve objectivity. Just recently, several victims have contacted us, and we are working on the following situations:

In the perinatal center of St. Petersburg, a woman in labor contracted an infection during a caesarean section. The woman was transferred to another medical facility, where the uterus was removed. In this case, the caesarean section and subsequent surgery were performed by the same doctor.
During pregnancy management, the obstetrician decided on a planned caesarean section. At the hospital, doctors stimulated labor; as a result, the placenta separated, the child began to choke and died in intensive care due to severe brain damage caused by oxygen deprivation.
During paid childbirth, doctors made several serious mistakes, due to which the woman in labor lost her legs from the anesthesia.

If you are faced with rudeness, violence or unprofessional work of doctors during pregnancy or childbirth, contact our lawyers for help. During the preliminary consultation, we will jointly develop an action plan. In some cases, you need to correctly write a complaint against the doctor, in others - an application to the prosecutor's office. We will make sure that the appeal is considered and an objective decision is made on it. If the actions of the medical staff show signs of a criminal offense, we will help you defend your rights in court, and also achieve compensation for the physical and mental suffering caused!

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Gratitude from gr. Tiuntsova G. A. I asked for advice from your “Legal Agency of St. Petersburg” - regarding deception by one person who presented himself as an employee of Rospotrebnadzor of the Krasnoselsky district, Novichkov A. A. Offered me a service - before the New Year, go on a tourist trade union voucher to Moscow on the Sapsan railway transport. I refused due to the manipulation of the placement of seats - in different trains, and then by car. Lawyer Sergei Vyacheslavovich Mavrichev handled this case and provided consultations. I thank you for such a sensitive and attentive attitude in office work, which was denied at the 58th police department of the Vyborg district, under Art. 24, 144, 145 of the Code of Criminal Procedure of the Russian Federation, I now have the right to appeal the conclusion and will send an application for further investigation to the district prosecutor's office.

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