In criminal law there is the concept of retroactive force of criminal law. It means that the adoption of a law providing for the mitigation of punishment under a certain article of criminal law, its complete abolition or changing the conditions of conviction, applies not only to citizens who committed a crime after its adoption, but also to those in respect of whom investigative actions are still underway or a decision has been issued. sentence of imprisonment.
The norm is a direct consequence of the implementation of humanism in criminal cases. A conflict of laws arises; the actions of the accused are classified differently when committing an act and when sentencing. The rule of law is subject to application, sanctions under similar articles of which are better for the position of the accused, without taking into account what rule was in force then and now. The adopted legal act leads to the abolition of criminal prosecution for the specified act if it has ceased to be criminal in nature.
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What is retroactive criminal law?
Features and nuances of the retroactive force of the law More Retroactive force of the criminal law is the extension of the provisions of the Criminal Code to acts committed before these provisions entered into force.
To put it even more simply, this is a situation where the norms of the Criminal Code adopted after the commission of a crime are applied to a person involved in a criminal case.
For example: K. committed a crime on January 20, 2021. A week later, that is, on January 27, 2021, changes to the Criminal Code of the Russian Federation came into force, and K. is being tried in accordance with these changes.
As a general rule, the criminal law does not have retroactive effect (Part 1 of Article 9 of the Criminal Code of the Russian Federation):
But there are exceptions to this rule. More on this later.
Lawyers' comments
The existing practice and theory of criminal law has repeatedly raised the question of the essence of the retroactive force of the law. There were especially many comments in situations where the law does not abolish the punishment, but establishes other measures for serving it. For example, before the changes, a certain crime was punishable by a term of two to ten years. In the new version, a term of three to seven years is given for the same crime. Which version of the law should be considered softer?
Criminal law doctrine argues that a more lenient law is one that prescribes a lower minimum sentence. Other lawyers believe that it should be measured by the maximum term. The latter opinion is supported by more and more supporters among legal scholars. Their arguments boil down to the following: taking into account all the circumstances of the criminal case, the court may impose a punishment below the period prescribed by law. By definition, the court cannot impose a punishment more severe than that prescribed in the Criminal Code.
Thus, in practice, the provision is fulfilled that laws do not have retroactive effect if they are aimed at increasing the punishment of a convicted person. All options for reviewing punishments for a criminal should be based on international treaties and should not be aimed at punishing him more severely than required by criminal law.
When does a criminal law have retroactive effect?
A criminal law has retroactive effect only if the new law improves the situation of the person who committed the crime (Part 1 of Article 10 of the Criminal Code of the Russian Federation):
What does it mean to improve the situation of a person who has committed a crime?
A new criminal law or updated provisions of an already existing criminal law improves the position of the offender if:
- The changes made eliminated the criminality of the act, that is, the crime ceased to be a crime.
For example, in December 2011, Art. 130 of the Criminal Code of the Russian Federation - insult. That is, insult ceased to be considered a crime and became an administrative offense (Article 5.61 of the Code of Administrative Offenses of the Russian Federation).
Since the new edition of the Criminal Code, which no longer contains Art. 130, clearly improved the situation of those who committed this crime, it was it that was used. That is, after the changes came into force, it was no longer possible to convict for insult. Despite the fact that the crime was committed earlier.
- The amendments softened the punishment for the crime committed.
For example, in the original version of the Criminal Code of the Russian Federation, the maximum penalty for theft without aggravating circumstances (Part 1 of Article 158 of the Criminal Code of the Russian Federation) was 3 years of imprisonment. A few years later, changes were made to the article, and the upper limit of punishment was reduced to 2 years.
There is an obvious improvement in the situation of the perpetrators. Therefore, it was impossible to assign more than 2 years of imprisonment to those who committed a crime before the amendments came into force, but were convicted after.
Important: the removal of the lower limit of the punishment is also considered a mitigation of punishment. For example, if the previous sanction was from 2 to 5 years of imprisonment, and the new one was up to 5 years of imprisonment, that is, without a minimum threshold.
- The amendments eliminated the qualifying feature (aggravating circumstance).
For example, previously in many articles of the Criminal Code of the Russian Federation one could see repetition as a qualifying feature. It was found especially often in norms on various forms of theft. In particular, this is what the original version of Part 2 of Art. 161 of the Criminal Code of the Russian Federation – robbery:
This is what it looks like now:
Repetition as a qualifying feature has been removed from the Criminal Code. And if, before the amendments were made to the Criminal Code, the person managed to commit a crime provided for in paragraph “b” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation, his actions should have been reclassified under Part 1 of Art. 161 of the Criminal Code of the Russian Federation (provided that there are no other signs that make it possible to impute part 2). The difference in punishment is significant - 4 years of imprisonment versus 7.
Important: we have listed only the most popular ways to improve the position of the culprit when amending the Criminal Code.
In fact, there are many more of them. Thus, the following amendments can improve the situation of the person who committed the crime:
- excluded from Art. 63 of the Criminal Code of the Russian Federation certain aggravating circumstances;
- reducing the period for expunging a criminal record or the statute of limitations for criminal prosecution;
- increasing the age of criminal responsibility, etc.
Thus, if difficulty arises in choosing the edition of the Criminal Code to apply to a person who committed a crime during the period of amendments, one should be guided by one simple rule: the edition that improves the position of the perpetrator will be applied. By any means.
Commentary to Art. 10 of the Criminal Code of the Russian Federation
The article under comment also establishes an exception to the general rule that the criminality of an act and its punishability are determined by the law in force at the time of its commission. Based on the principle of humanism, the Criminal Code of the Russian Federation provides for the possibility of extending the effect of the new criminal law to acts committed before its entry into force, but only in cases where the novelties of the criminal law in one way or another improve the position of the perpetrator.
Such a humane attitude towards persons guilty of committing a crime is approved by the international community and is based on the provisions of Art. 15 of the International Covenant on Civil and Political Rights, adopted under the auspices of the UN. In particular, this article states that if, after the commission of a crime, a lighter punishment is established by law, the effect of this law extends to the given criminal.
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International public law: Collection of documents. T. 1. M.: BEK, 1996. P. 483 - 485.
The provision on the retroactive force of the law is also reflected in Art. 54 of the Constitution of the Russian Federation, which establishes a ban on giving retroactive force to a law establishing or aggravating liability, and the mandatory application of a new law eliminating or mitigating liability.
This constitutional provision is enshrined in Part 1 of Art. 10 of the Criminal Code of the Russian Federation, which states that a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of the person who committed the crime, has retroactive effect, i.e. applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record. A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect.
Here we should pay attention to the fact that the retroactive force of the criminal law will occur not only in the case of decriminalization of an act or mitigation of punishment, but also in all other cases when changes in the criminal law are in one way or another connected with improving the situation of the offender. Such an improvement could be, for example, easing the conditions of parole, reducing the statute of limitations for release from criminal liability, establishing the possibility of assigning a less strict type of correctional institution, eliminating a qualifying feature, etc. Options for improving the position of the offender are not limited by law, and the adoption of any of them means the need to apply provisions on the retroactive effect of the criminal law.
The practical application of the provision on the retroactive effect of a criminal law is associated with the need to determine whether the situation of the perpetrator has been worsened or improved by the new law. This is due to the fact that the new law, as practice shows, often changes both the lower and upper limits of sanctions in the articles of the Special Part of the Criminal Code of the Russian Federation. Moreover, if both limits are reduced or the upper limit is reduced while the lower limit remains the same, then we can confidently say that the law has mitigated the punishment. In practice, the issue of mitigating punishment was not so clearly resolved in cases where the lower limit of the sanction was increased and the upper limit was decreased. For example, under the old law, the lower limit of the sanction was one year of imprisonment, and its upper limit was ten years of imprisonment. The new law increases the lower limit to three years of imprisonment, and the upper limit to eight years of imprisonment. In such a situation, how can one determine whether the punishment was mitigated or increased? At the same time, it is possible to assess the provisions of the new law taking into account both the lower and upper limits of the sanction. In the literature, proposals on this issue have been mixed. The practice of applying punishment also fluctuated. However, in recent years, a general position has been established, according to which the severity of the law is compared according to the highest, and not the lowest limit of the sanction, since, based on the fundamental establishment of improving the situation of the perpetrator, with this approach a more severe punishment compared to the new law cannot be assigned to him , and an increase in the lower limit of the sanction, if necessary, can be offset by the imposition of a punishment below the lower limit or a punishment of another, more lenient type.
In some cases, the comparison of the severity or lenity of a new criminal law depends on the approach to assessing the provisions of legislative acts of other branches of law or other regulatory legal acts. The solution to this issue is especially relevant when it comes to the so-called blanket norms, where the content of the provisions of other branches of law determines the content of the objective side, and in some cases the subject of the corresponding crimes. But the same problem can occur in other cases. For example, in Art. 7.27 of the Code of Administrative Offenses of the Russian Federation (CAO RF), changes have been repeatedly made regarding the amount of petty theft (the number of minimum wages that determine this amount has changed, and currently the amount is set in absolute monetary terms). Such changes had an impact on the application of Art. 158 of the Criminal Code of the Russian Federation. Depending on them, the theft of either a larger or a lower value of the stolen item was considered a criminal theft. In this regard, the question arose, for example, of whether an increase in the value of a stolen item is a mitigation of the criminal law, since with this option a greater number of thefts are subject not to the criminal law, but to the legislation on administrative offenses?
It seems that the correct answer to this and similar questions was given in the Determination of the Constitutional Court of the Russian Federation of July 10, 2003 N 270-O, which states that the decriminalization of certain acts can be carried out not only by introducing appropriate changes to the criminal legislation, but also through the abolition of regulatory requirements of another branch, to which the blanket norms of the criminal law were referred, or by limiting the scope of criminal law regulation as a result of legislative recognition of any act as not representing a public danger inherent in crimes, and entailing on this basis administrative or other softer responsibility.
“This interpretation of the provisions contained in part one of Article 3 and Article 10 of the Criminal Procedure Code of the Russian Federation and paragraph 13 of Article 397 of the Code of Criminal Procedure of the Russian Federation, in the opinion of the Constitutional Court of the Russian Federation, is consistent with both the requirement of the Constitution of the Russian Federation on the need to give retroactive force to any law that eliminates or mitigates responsibility (part 2 of article 54), as well as with the principles of fairness and proportionality of restrictions on rights and freedoms proclaimed by it for constitutionally significant purposes (preamble; part 3 of article 55).”
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Bulletin of the Constitutional Court of the Russian Federation. 2003. No. 5. See also: Determination of the Constitutional Court of the Russian Federation of January 16, 2001 No. 1-O “In the case of verifying the constitutionality of Note 2 to Article 158 of the Criminal Code of the Russian Federation in connection with the complaint of citizen Dmitry Anatolyevich Skorodumov,” which sets out slightly different position. In particular, the Definition notes that the minimum wage, on the basis of which such a qualifying characteristic as large-scale theft is determined, is established not by criminal law, but by the law of another industry. Changing it does not entail a change in the norm of the criminal law in force at the time the crime was committed, since by its legal nature the minimum wage is a unit of calculation, which is determined by the federal legislator taking into account socio-economic factors and for a certain period, which in this case excludes the possibility of applying a specific minimum wage in criminal law relations that arose before its establishment. Otherwise, it could lead - contrary to the will of the legislator - to the decriminalization of socially dangerous acts and to a violation of the principle of justice, which involves ensuring that punishment and other criminal legal measures correspond to the nature and degree of social danger of the crime committed (Bulletin of the Constitutional Court of the Russian Federation. 2001. No. 3).
Thus, from the above we can conclude that changes in the provisions of the norms of other branches of law can also affect the substantive content of the norms of the criminal law and, therefore, in cases established by law, entail the application of retroactive force of the criminal law.
Another case requiring the application of provisions on the retroactive force of a criminal law is when the new criminal law allocates special norms establishing criminal liability for acts that, under the old criminal law, were classified not under a special norm, but under a general one. In such situations, it is not the criminalization of the act that occurs, but the clarification of its legal assessment. Such an assessment can lead to either an improvement in the situation of the perpetrator or a worsening one. Therefore, the issue of applying the retroactive force of the criminal law in such cases should be decided on the basis of a comparison of the sanctions of the general norm and the new special norm. The retroactive force of a criminal law can only occur in a case favorable to the offender.
Part 2 of Art. 10 of the Criminal Code of the Russian Federation establishes a provision according to which if a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law.
The implementation of this position from a practical point of view involves the termination of criminal cases, their revision, reclassification of the actions of the perpetrators, reduction of sentences, etc. The provision in question is formulated as an imperative instruction addressed primarily to the state represented by the relevant bodies that are called upon to ensure the implementation of the provisions enshrined in Art. 45 (Part 1) of the Constitution of the Russian Federation guarantees state protection of the rights and freedoms of man and citizen in the Russian Federation and on which the solution to the question of what kind of liability may arise for certain offenses depends.
Thus, it is assumed that the legislator, when adopting a law that eliminates or mitigates criminal liability and, therefore, is an act that redefines the nature and degree of public danger of certain crimes and the legal status of the persons who committed them, cannot but provide - based on from the constitutionally determined obligation to extend the effect of this kind of laws to previously committed acts - a mechanism for giving it retroactive force, and law enforcement bodies, including courts, authorized to make jurisdictional decisions in pursuance of this law on the release of specific persons from criminal liability and punishment or on mitigation responsibility and punishment formalizing a change in the status of these persons does not have the right to evade its application.
The order contained in Part 2 of Art. 10 of the Criminal Code of the Russian Federation on the mitigation of the punishment imposed by a court verdict within the limits provided for by the new criminal law, presupposes the use of general principles of sentencing, due to which in such cases the mitigation of punishment should be carried out within the limits determined by the entire set of norms of the Criminal Code of the Russian Federation - not only its Special parts, but also the General.
Another, restrictive interpretation of Part 2 of Art. 10 of the Criminal Code of the Russian Federation, namely, as allowing the possibility of reducing the punishment imposed on a convicted person only to the upper limit of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation does not correspond to the literal meaning of this norm and does not follow from the provisions of the Constitution of the Russian Federation that predetermine its content and significance in the system of current criminal law regulation . At the same time, it is unacceptable to change for the worse the situation of the convicted person in connection with the decision to bring the sentence passed against him in accordance with the new criminal law, mitigating responsibility for the crime committed, since this would distort the very essence of such a law and the will of the legislator expressed in it .
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See: Resolution of the Constitutional Court of the Russian Federation of April 20, 2006 N 4-P // Bulletin of the Constitutional Court of the Russian Federation. 2006. N 3.
The retroactive application of criminal law in relation to a convicted person serving a sentence should also be carried out when the final decision on punishment is made not by the judiciary, but by other bodies, for example, on the basis of an act of pardon. Thus, if the death penalty imposed by the court in accordance with the Criminal Code of the RSFSR was replaced by pardon with a sentence of imprisonment for a term of twenty-five years, and the Criminal Code of the Russian Federation established for the crime committed the possibility of imposing only imprisonment for a certain period, in our opinion , the retroactive provisions of the criminal law must be applied.
Requirements of Art. 10 of the Criminal Code of the Russian Federation are universal in nature and should be applied in all cases where a new criminal law improves the position of the perpetrator. This is the essence of the retroactive force of criminal law.
Simple and revisionary retroactivity of criminal law
Within the meaning of Article 10 of the Criminal Code of the Russian Federation, it is clear that the retroactive force of the criminal law covers 2 circles of persons:
- suspects, accused until the final procedural decision is made in the case or immediately before it enters into legal force (simple retroactive effect);
- convicted persons, the sentence in respect of whom has already acquired its legal force (retroactive revision).
In a situation with retroactive criminal law , which theorists have given the name “simple,” everything is more or less clear. The judge can apply it without any problems during the trial, or more precisely at the time of the final verdict, given the conditions listed in Art. 10 of the Criminal Code of the Russian Federation conditions: the court will reclassify the article (part of the article) to a less serious one. The dilemma about the applicability of retroactive revision is not always resolved so clearly.
Decriminalization
It can be partial or complete. Decriminalization can be carried out by changing the provisions of the norms not only of the Special, but also of the General Part. For example, new circumstances may be introduced that exclude the criminality of a person’s behavior, the concept of complicity may be narrowed, and liability for preparation for a crime or unfinished assault may be limited.
Decriminalization can also be achieved by:
- repeal of regulations from other industries that were referenced in the blanket norm;
- limiting the scope of regulation of criminal norms due to the recognition of the act as not representing a danger to society and, therefore, entailing an administrative or other milder sanction.
Partial decriminalization can take place by reducing the characteristics of the composition or by maintaining the blanket disposition of the norm without changes when adjusting positive legislation, violation of the provisions of which entailed criminal punishment.
Explanations on this issue were given by the Plenum of the Supreme Court in Resolution No. 23 of 2004. The court indicated that if the Federal Law excludes the corresponding type from the list of types of activities, the conduct of which is permitted only with a special permit, there are no signs of composition in the actions of the entity engaged in it, enshrined in Article 171 of the Criminal Code
Which criminal law has retroactive effect for those serving a sentence?
The specifics of using the retroactive force of criminal law in relation to those serving a sentence are not directly indicated by the legislator. However, after receiving numerous complaints about the revision of sentences, an interpretation arose given by the Constitutional Court of the Russian Federation in the resolution “In the case of checking the constitutionality of Part 2 of Art. 10 of the Criminal Code of the Russian Federation, Part 2 of Art. 3 Federal Law “On the entry into force of the Criminal Code of the Russian Federation” dated April 20, 2006 No. 4-P (hereinafter referred to as the resolution of the Constitutional Court).
As follows from the analysis of the resolution of the Constitutional Court, all sentences in which, for the same act committed during the period of validity of the updated version of the criminal norm, a more lenient punishment would be imposed or the situation would otherwise be improved in favor of the convicted person (for example, the norm of the Criminal Code) are subject to review and amendment The Russian Federation was decriminalized or its category was changed to a less serious one).
In addition, courts of all (including cassation, supervisory) instances must take into account all versions of the law at the time of making their decision and apply a more lenient one by virtue of Art. 10 of the Criminal Code of the Russian Federation (clause 3 of the Review of judicial practice of the Armed Forces of the Russian Federation No. 3 of October 19, 2016 (Judicial Collegium for Military Affairs).
Conclusion: the retroactive force of a law that improves the position of the guilty always applies. Even if he has already been convicted and is serving his sentence.
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Judicial practice under Article 10 of the Criminal Code of the Russian Federation
Resolution of the Presidium of the Supreme Court of the Russian Federation dated September 27, 2017 N 169P17
In the supervisory appeal, the convicted Chichkov, without challenging the court’s conclusion that he is guilty of committing crimes, asks for a mitigation of his sentence. In support, he indicates that the court established mitigating circumstances provided for in paragraph “i” of Part 1 of Art. of the Criminal Code of the Russian Federation, but no aggravating circumstances have been established. Consequently, at the time of consideration of the criminal case in cassation procedure it was subject to application in accordance with Part 1 of Art. The Criminal Code of the Russian Federation has a new criminal law (Part 1 of Art. of the Criminal Code of the Russian Federation as amended by Federal Law of June 29, 2009 N 141-FZ), which improves its position, which was not done by the court of cassation. In this regard, there are grounds for mitigating his sentence under Part 3 of Art. , pp. “a”, “g”, “h” part 2 art. 105 of the Criminal Code of the Russian Federation using Part 1 of Art. Criminal Code of the Russian Federation (as amended by Federal Law dated June 29, 2009 N 141-FZ). In addition, the courts of first and cassation instances, in his opinion, did not take into account such a mitigating circumstance provided for in paragraph “g” of Part 1 of Art. of the Criminal Code of the Russian Federation, as the presence of a young child, which also provides grounds for mitigating his sentence, including under Part 2 of Art. 209 of the Criminal Code of the Russian Federation.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 26, 2017 N 44-UD17-34
in the cassation appeal, the convicted Naidin asks for a review of the presidium’s decision, indicating that the cassation court did not fully apply the provisions of Art. The Criminal Code of the Russian Federation, when bringing the sentence of April 10, 1996 into compliance with the current law, namely: did not take into account the changes made by Art. 6 of the Federal Law “On the Enactment of the Criminal Code of the Russian Federation”; did not discuss the issue of changing the category of the crime - theft, and also did not take into account that on the facts of theft of property in the amount of 400 and 170 rubles, according to the verdict of June 25, 1998, his actions are not subject to criminal liability. He believes that the violations committed led to the imposition of punishment in accordance with Art. of the Criminal Code of the Russian Federation, and also influenced the size of the punishment imposed on him, which is severe.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated June 20, 2018 N 64P18
- in the verdict of February 20, 1996, according to which the actions of the convicted Chernenko were reclassified from Art. , part 2 art. 144 of the Criminal Code of the RSFSR at Part 3 of Art. , paragraphs “a”, “b”, part 2, art. 158 of the Criminal Code of the Russian Federation with a reduced sentence of up to 2 years 10 months of imprisonment, under Part 1 of Art. 149 of the Criminal Code of the RSFSR was exempted from punishment in accordance with paragraph 13 of Art. 397 of the Code of Criminal Procedure of the Russian Federation in accordance with Art. Criminal Code of the Russian Federation, the final punishment imposed on the basis of Art. The Criminal Code of the RSFSR was reduced to 2 years 10 months of imprisonment;
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 14, 2018 N 89-UD18-7
In the cassation appeal, the convicted Shmidt M.A. challenges the resolution of the Presidium of the Tyumen Regional Court of August 7, 2014, considering it illegal, unfair and subject to change. Notes that by virtue of Art. Of the Criminal Code of the Russian Federation, out of eight crimes, the court reclassified only seven crimes; the crime of October 31, 2010 was mistakenly not reclassified under the new law. He believes that the presidium commuted the sentence imposed on him for each crime by one month, and for the totality of crimes by only two months, while the punishment should be commuted by eight months of imprisonment. It draws attention to the fact that for a number of crimes he was given the same punishment, both for a completed crime and for an attempted crime. Indicates that on December 4, 2009, theft was committed from a notary's office in the amount of 1000 - 1200 rubles, excluding criminal liability for this crime. He asks to review the court decisions and mitigate the punishment imposed on him.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 44-UD18-16
in the cassation appeal, the convicted Brezgin asks for a review of the presidium’s decision, indicating that the cassation court did not fully apply the provisions of Art. The Criminal Code of the Russian Federation, when bringing the sentence of February 16, 2005 into compliance with the current law, namely: did not take into account that in three episodes of theft of property in the amount of 722 rubles 53 kopecks, the actions are not criminally punishable. Believes that the violations led to the unreasonable imposition of punishment in accordance with Part 5 of Art. of the Criminal Code of the Russian Federation, as well as according to the rules of Art. Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 201-APU18-21
In support of the complaints, they point out that the court’s conclusions about Abdymanap’s participation in the activities of a terrorist organization up to his arrest, i.e. until March 28, 2022, are not supported by the evidence examined. In particular, witnesses T. and V. confirmed only the fact of Abdymanap’s participation in the activities of a terrorist organization in 2014 - 2015, including in the meeting that took place on January 25, 2015. Given such data, the court had to be guided by the provisions of Art. Art. , Criminal Code of the Russian Federation and qualify Abdymanap’s actions under Part 2 of Art. 205.5 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 130-FZ of May 5, 2014), within the sanction of which to impose a punishment on him.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 44-UD18-18
In accordance with Art. Criminal Code of the Russian Federation verdict of the Industrial District Court of Perm dated December 12, 2006 in relation to Kuzeev S.V. and all subsequent court decisions are subject to change, the actions of the convicted person are requalified under Part 4 of Art. 111 of the Criminal Code of the Russian Federation as amended by Federal Law No. 26-FZ of March 7, 2011, which removed the lower limit of the sanction of part four of the above article, thereby improving the situation of the convicted person.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 2, 2018 N 10-APU18-2
In the appeal and additions to it, the convicted Katorkina E.V. expresses disagreement with the verdict regarding the imposed punishment. Indicates that she has realized her guilt, completely repents of what she has done, asks to take into account all mitigating circumstances, and to apply the provisions of Art. of the Criminal Code of the Russian Federation, changing the sentence with a mitigation of the punishment. It also draws attention to the fact that the court’s verdict inaccurately depicted her actions regarding the strangulation of the deceased. Indicates that her hands involuntarily ended up under the rope around the neck of the deceased, and her testimony that Zvezdochetov forced her to take full responsibility for the murder was not taken into account by the court. Expresses disagreement with the amount of the civil claim.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated June 28, 2018 N 201-APU18-22
In addition, the convict and the lawyer believe that when qualifying Nazarov’s actions under Part 1 of Art. 205.1 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 375-FZ of July 6, 2016), the court made a mistake and unreasonably did not apply the provisions of Art. of the Criminal Code of the Russian Federation, since in the current version of the criminal law from Part 1 of Art. 205.1 of the Criminal Code of the Russian Federation excludes actions related to the involvement of a person in the commission of crimes provided for in Art. Art. 205 and 205.5 of the Criminal Code of the Russian Federation.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 19, 2018 N 58-O18-2
In accordance with Art. of the Criminal Code of the Russian Federation, a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or those who have served their sentence but have a criminal record.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 25, 2018 N 4-UD18-20
When deciding on mitigation for Lyakishev R.V. punishment within the specified limits, the Presidium of the Moscow Regional Court thereby eliminated the consequences of the court of first instance taking into account, when assigning punishment, circumstances not provided for by law that worsen the situation of the convicted person. However, having thus softened the sentence for the convicted person in comparison with how it was determined in the verdict, the presidium actually ignored the fact that by this time, namely September 3, 2012, the Oktyabrsky District Court of Tambov in the verdict against Lyakishev R. IN. on the basis of Art. The Criminal Code of the Russian Federation made changes that improved his position, by virtue of which it was decided to consider Lyakishev R.V. convicted under Part 4 of Art. 111 of the Criminal Code of the Russian Federation to 8 years 6 months of imprisonment, under paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation - to 10 years in prison, and on the basis of Part 3 of Art. Criminal Code of the Russian Federation - to 14 years 6 months of imprisonment. It is from these, established in accordance with the resolution of the Oktyabrsky District Court of Tambov dated September 3, 2012, that the amounts assigned to Lyakishev R.V. Punishments both for individual crimes and for their totality should have been based on mitigation of punishment due to the exclusion from the sentence of the instruction to take into account, when assigning punishment to the convicted person, the opinions of the public prosecutor and the victims who insisted on a strict punishment.
