What is the difference between a suspended sentence for drugs and a deferred sentence?

Note! The information in this article may not be complete due to frequent changes in legislation. In addition, your specific situation may require more detailed study. Therefore, consult with a lawyer by phone.

When considering a suspended sentence for drugs, you need to know on what basis the court can make such a decision. Since 2011, the law has also allowed for the deferment of sentences for drug addicts, but this article is applied to a limited extent. Lawyer A.N. The boatswain, who has many similar cases in his 27-year practice, explained how these two cases differ.

When can you be given a suspended sentence for drugs?

Article 73 of the Criminal Code of the Russian Federation applies equally to all types of crimes, with the exception of those aimed at the sexual integrity of children, terrorism, and dangerous recidivism. It follows from it that when imposing such types of punishment as correctional labor, detention in a disciplinary military unit, imprisonment for a term of up to 8 years, the court may impose a suspended sentence, including under articles for drugs. These include the most common acts in this area:

• Art. 228 (parts 1,2) - storage, transportation, acquisition, production of prohibited substances;
• Art. 228.1 (parts 1,2) - suspended sentence for selling drugs, sending them, including via the Internet;
• Art. 229 (parts 1,2) - illegal movement across the border (smuggling).

As a rule, if the fact of drug use is revealed, the court may impose an additional obligation on the convicted person: to undergo drug addiction treatment. However, it terminates simultaneously with the expiration of the probationary period, which ranges from 6 months to 3 to 5 years. In addition, the duration of the treatment itself is not regulated by any document, just as no penalties are provided for in case of failure to fulfill this obligation.

How to obtain parole under Article 228 of the Criminal Code

To obtain parole, including when punished under Article 228 of the Criminal Code of the Russian Federation, the convicted person must follow the following algorithm of actions:

• when the right to parole arises, you must file a petition to the judicial institution at the place where the sentence is served;
• when considering the application, an opinion is requested from the management of the correctional institution on the advisability of release from serving the sentence;
• To consider the petition, the court is obliged to examine all the evidence presented - certificates of the convicted person’s behavior, documents on incentives and penalties while serving the sentence, etc.;
• if the petition is granted, the court releases the convicted person from serving the remaining part of the sentence while simultaneously establishing control over his behavior by the authorized government agency.

To apply parole under Article 228 of the Criminal Code of the Russian Federation, this algorithm of actions is applied on a general basis. The law does not provide special requirements for this procedure.

The mere fact of serving 1/3 or 3/4 of the assigned sentence does not mean that the convicted person will be able to be released. The application of parole rules is a right, not an obligation of the court, and depends on many additional factors and circumstances. First of all, the attitude of the convicted person to the assigned punishment, his behavior in prison, and identification of signs of correction will be established.

To be able to be released early, the preparation of an application and the collection of necessary documents must be accompanied by a lawyer. In this case, it is possible to foresee in advance all possible nuances that will arise during the consideration of the case, and eliminate problems even before filing a petition.

The procedure for filing an application for parole is regulated by Article 175 of the Penal Code of the Russian Federation. As part of this procedure, the following nuances must be taken into account:

• the petition may be submitted to the court by the convicted person himself, his legal representative, or lawyer;
• the application to the court is sent through the management of the institution in which the citizen is actually serving his sentence;
• the transfer of a petition for parole to the court must be carried out by the leadership of the colony no later than 15 days from the moment it is received from the convicted person (at the same time as the submission of the petition, a character reference for the convicted person is attached);
• If the court refuses to satisfy the petition, a repeated appeal is allowed no earlier than six months later.

Note! A key role in the consideration of the request of the convicted person is played by the characteristics of the body in which the punishment is carried out. It is when drawing up a profile that specialists from the Federal Penitentiary Service can abuse their rights and responsibilities, and the conclusion about the possibility of parole is often subjective.

The content of the petition must indicate data on the citizen’s behavior throughout the entire period of serving the sentence - about his attitude to study or work, to the crime committed, information about compensation for harm from the crime. If, when drawing up a petition, the colony management provides deliberately false information, only the help of a lawyer will allow you to prove the opposite in a court hearing.

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During the consideration of the petition by the court, the following circumstances related to parole are revealed:

• the presence of positive characteristics from the management of the institution where the sentence was served;
• the behavior of a citizen after the imposition of a sentence, his attitude to the educational and labor process organized in places of deprivation of liberty (if, after the sentencing, the convict changed several places of serving his sentences, the specified information from each institution of the Federal Penitentiary Service is taken into account);
• the composition of incentives and penalties received while serving a prison sentence (the court is obliged to request the specified information from each correctional institution where the convicted person served his sentence);
• attitude towards the crime committed, information about repentance for the committed acts;
• confirmation of the facts of compensation for damage from the crime committed, if it was recovered by a court verdict.

Note! This is only a mandatory list of circumstances that the court is obliged to examine. The convicted person and his lawyer are not prohibited from presenting any evidence that characterizes the citizen in a positive way (for example, his participation in the social or cultural activities of the penal authority, etc.).

If during the consideration of the case it becomes necessary to request additional evidence, the lawyer will submit a corresponding petition to the court.

What does deferred execution mean for a drug addict?

According to ICD-10 (International Classification of Diseases), drug addiction is considered a disease. Therefore, the impact of punishment alone will not change the dangerous behavior of a person using illicit substances. Since compulsory treatment is not currently provided for as a punishment, Article 82.1 was introduced into the Criminal Code, providing for the deferment of punishment for drug addicts. To do this, the following conditions must be met.

• The crime is provided for in Part 1 of Art. 228, part 1 art. 231 and Art. 233 of the Criminal Code of the Russian Federation.
• Imposition of punishment in the form of imprisonment.
• Voluntary consent of convicts to undergo treatment and rehabilitation.
• Recognition of the fact of illness by the court.
• Committing a crime for the first time.

Unlike a suspended sentence with an additional punishment in the form of treatment, here there is a limit of up to 5 years. At the same time, Part 3 of Article 82.1 indicates that after completion of treatment and the onset of remission for 2 years, the accused is released from serving the remaining sentence. If he evades treatment, he is sent to the place actually determined by the sentence.

Theoretically, the patient can be cured earlier, which must be confirmed by expert opinion. On the other hand, it is hardly advisable to bother about deferring the sentence when the term of imprisonment is 1 or two years. But in this case, you need to remember that the Penal Code of the Russian Federation provides for the appointment of compulsory treatment for drug addicts based on the conclusion of the medical commission of the penal institution (without a court decision).

When can you get parole under Article 228 of the Criminal Code?

To determine when to apply for parole under Article 228 of the Criminal Code of the Russian Federation, we will consider the minimum and maximum prison terms for each part of this norm:

• under part one of Article 228 of the Criminal Code of the Russian Federation, the term of imprisonment may be imposed for a period of up to three years;
• Part two of the article in question allows imprisonment for a term of three to ten years;
• under part three of Article 228 of the Criminal Code of the Russian Federation, punishment can be imposed for a period of ten to fifteen years in prison.

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Note! When passing a sentence, the court is required to indicate the specific term of imprisonment that the convicted person will serve. Imposing a sentence below the established minimum is possible only if a pre-trial agreement to assist in the investigation is concluded. In this case, the punishment should not exceed 2/3 of the maximum term under a specific part of Article 228 of the Criminal Code of the Russian Federation.

Based on the size of the sanctions for each part of Article 228 of the Criminal Code of the Russian Federation, it is possible to determine the severity of the crime, since this criterion directly affects the conditions of parole. The severity of the offenses is established based on the provisions of Article 15 of the Criminal Code of the Russian Federation, and in relation to illegal actions with drugs under Article 228 of the Criminal Code of the Russian Federation it is:

• in part one - a crime of minor gravity, since the maximum term of imprisonment does not exceed three years;
• in part two - a serious crime, since the punishment is up to ten years;
• in part three - a particularly serious crime, since the term of imprisonment exceeds ten years.

These rules will be applied when determining the conditions of parole under Article 228 of the Criminal Code of the Russian Federation. However, the legislator has also provided special requirements for the parole of persons punished for drug trafficking.

The procedure for obtaining parole under Article 228 of the Criminal Code of the Russian Federation

When is it possible to apply for parole under Article 228 of the Criminal Code of the Russian Federation? The conditions that must be met to receive parole are regulated by Article 79 of the Criminal Code of the Russian Federation and apply to those convicted of drug trafficking. The general requirements for parole when serving a real prison sentence are as follows:

• if a criminal penalty is imposed for a crime of minor or moderate gravity, it is necessary to serve at least 1/3 of the term;
• for serious crimes - at least ½ of the prescribed term;
• for especially serious unlawful acts - at least 2/3 of the term of conviction;
• for certain categories of crimes, which include parts 2 and 3 of Article 228 of the Criminal Code of the Russian Federation, parole can be assigned after serving at least ¾ of the established prison term.

Note! In any case of applying for parole, the convicted person must serve a sentence of at least six months; this requirement is expressly stated in Article 79 of the Criminal Code of the Russian Federation. This period also includes the period of actual detention, if such a preventive measure was chosen by the court during the investigation.

Thus, according to the first part of Art. 228 parole is possible when the sentence is actually served in the amount of 1/3 of the sentence. For example, if a prison sentence of three years is imposed, you must serve at least one year before applying for parole. In terms of the second and third norms under consideration, the application of the conditional early release option occurs according to special rules - after serving at least 3/4 of the assigned term.

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Applying for parole under Article 228 of the Criminal Code of the Russian Federation before the actual completion of the specified terms is pointless, since the law does not provide for exceptions to the rules. Let's consider the procedural features of applying for parole under Article 228 of the Criminal Code of the Russian Federation, and the list of circumstances that the authorized bodies will check.

What can a lawyer do for his client?

Relatives of the accused often try to defend him on their own, collecting numerous certificates and characteristics in the hope that they will be taken into account when sentencing. However, they are not enough to prove to the court the possibility of reforming the criminal without real punishment.

A lawyer evaluates the chances of a convicted person receiving a suspended sentence for drugs based on experience and practice, and in each specific case chooses the most promising ways to achieve the desired result. Most often, judges are cooperative in the presence of the following mitigating circumstances:

• the crime was committed for the first time, there is no criminal record;
• admission of guilt, sincere repentance;
• positive characteristics;
• youth or, on the contrary, old age;
• presence of children and other dependents.

In themselves, these circumstances do not play a key role in making a decision, just like the personality of the convicted person. Sometimes the court comes to the conclusion that even all of them taken together do not guarantee that he is able to reform while free. It is necessary to prove the insignificant social danger of the crime and the inappropriateness of keeping the convicted person in a colony. In my archive you can find various examples of drug cases (assignment of a lenient sentence, refusal to arrest for drugs, dismissal of a criminal case).

If you want to get a suspended sentence for drugs for yourself, your child or your spouse or are counting on its deferment for the purpose of treatment, you can always get help at the address: Nevsky Prospekt, 153. Lawyer Botsman Andrei Nikolaevich effectively defends such cases, which contributes to many years of experience in the Internal Affairs Directorate, OBEP and the Main Department of Justice of St. Petersburg.