Article 80 of the Criminal Code of the Russian Federation provides for the replacement of punishment (more precisely, the part that has not been served) with a more lenient type of punishment. Certain conditions that are prescribed in legislative acts must be met.
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Commentary to Art. 80 Criminal Code
1. The type of exemption from punishment under consideration is optional, i.e. the resolution of the issue depends on the discretion of the court. For its use, conditions and grounds must be present.
2. Conditions of application: the court has the right to replace only such basic types of punishment as detention in a disciplinary military unit, forced labor and imprisonment. In addition, the convicted person must fully or partially compensate for the damage caused.
A person may also be fully or partially released from any additional type of punishment if the additional punishment has not been executed by the time of replacement.
The unserved part of the sentence in the form of imprisonment can be replaced by a more lenient type of punishment only after the convicted person has actually served part of the sentence, which depends either on the category or on the type of crime (Part 2 of Article 80 of the Criminal Code). The law does not provide for such a condition for detention in a disciplinary military unit and forced labor.
3. Serving part of the imposed sentence allows the law enforcement officer to establish such positive changes in the behavior of the convicted person that indicate that for his further correction he no longer needs to fully serve the sentence imposed by the court, and it can be replaced with a more lenient one (grounds for application).
In relation to a convicted person suffering from a disorder of sexual preference (pedophilia), which does not exclude sanity, and who, at the age of over eighteen years, has committed a crime against the sexual integrity of a minor under fourteen years of age, the court also takes into account the application of compulsory medical measures to the convicted person, his attitude towards treatment and results of forensic psychiatric examination.
4. When replacing the unserved part of the sentence, the court may choose any milder type of punishment in accordance with the types of punishments provided for in Art. 44 of the Criminal Code. The choice of a specific type of punishment depends on whether it is possible to achieve with its help the goals of restoring social justice, correcting the convicted person and preventing the commission of new crimes. In this case, the court is guided by the terms or amounts established by the Criminal Code for each of the specified types of punishment.
5. The replacement of the unserved part of the punishment with a more lenient type of punishment is final.
6. If a person commits a new crime, the unserved part of the punishment that replaced detention in a disciplinary military unit, forced labor or imprisonment is added to the punishment imposed by the last sentence.
7. The replacement of the unserved part of the sentence with a milder form is carried out by the court at the place of serving the sentence being replaced, upon the proposal of the institution or body executing it. At the same time, this provision does not prevent the convicted person from filing a petition with the court to replace the unserved part of the sentence with a more lenient form (Determination of the Constitutional Court of the Russian Federation of October 20, 2005 N 388-O).
Petition to replace the unserved part of the sentence with a more lenient one
The convicted person himself, as well as his lawyer (legal representative), can apply to the court to replace the unserved part of the sentence with a more lenient one. The administration of the institution executing the sentence in which the convicted person is serving his sentence submits to the court a proposal to replace the unserved part of the sentence with a more lenient one.
The replacement of the unserved part of the sentence with a more lenient form is carried out by the court at the place of serving the sentence being replaced, upon the proposal of the institution or body executing it. At the same time, this provision does not prevent the convicted person from filing a petition with the court to replace the unserved part of the sentence with a more lenient one.
If the court refuses to replace the unserved part of the sentence with a milder type of punishment, the repeated submission of the corresponding petition or presentation to the court may take place no earlier than six months from the date of the court’s decision on refusal (Article 175 of the Penal Code of the Russian Federation).
Second commentary to Art. 80 of the Criminal Code of the Russian Federation
1. Replacing the unserved part of a sentence with a milder type of punishment (as opposed to parole) can only be applied to persons serving a sentence in the form of detention in a disciplinary military unit, forced labor or imprisonment.
If, during conditional early release, the main goal of punishment - the correction of the convicted person - has practically already been achieved, then when replacing the unserved part of the sentence with a more lenient type of punishment, this goal has not yet been achieved and the need to use state coercive measures has not yet disappeared, although further correction of the convicted person can be ensured the use of punitive-educational influence of less intensity.
2. The material basis for replacing the unserved part of the sentence is the convict’s firm establishment on the path of correction, as evidenced by his good behavior and conscientious attitude to the performance of duties throughout the entire period of serving the sentence, including full or partial compensation for the harm caused by the crime. The application of Article 80 of the Criminal Code of the Russian Federation is not limited to the categories of crimes for which convicts are serving sentences: it can be applied to persons serving a sentence of imprisonment for crimes of any category.
3. The law establishes the only formal condition necessary for replacing the unserved part of the punishment with a more lenient type of punishment. It consists of actually serving a certain part of the sentence imposed by the court. In accordance with part 2 of Art. 80 of the Criminal Code of the Russian Federation, the unserved part of the punishment may be replaced by a more lenient type of punishment after the actual serving of the convicted person for committing:
- crimes of minor or medium gravity - at least one third of the sentence;
- serious crime - not less than half the sentence;
- especially serious crime - not less than two-thirds of the sentence;
- crimes against the sexual integrity of minors, as well as crimes provided for in Article 210 of the Criminal Code - at least three quarters of the sentence:
- crimes against the sexual integrity of minors under fourteen years of age - no less than four-fifths of the sentence.
Replacing imprisonment with forced labor in accordance with Article 80 of the Criminal Code is possible after a person convicted of a crime of minor or moderate gravity has served one-fourth, for a serious crime - one-third, and for a particularly serious crime - half of the term of imprisonment imposed by the court. Imprisonment imposed for crimes against the sexual integrity of minors, as well as for crimes provided for in Article 210 of the Criminal Code, can be replaced by forced labor only after serving three-quarters, and for crimes against the sexual integrity of minors under 14 years of age - four-fifths of the term of imprisonment.
4. The issue of applying Article 80 of the Criminal Code is considered by the court at the place where the sentence is served on the proposal of the institution or body in charge of executing the sentence. The type of punishment that replaces the unserved part of the sentence imposed by a court verdict is chosen by the court in accordance with the types of punishments listed in Article 44 of the Criminal Code, taking into account the nature of the crime committed, the amount of damage caused and its compensation, other circumstances, as well as the degree of correction of the convicted person. At the same time, a more lenient type of punishment can be imposed only within the limits established for it by law, even if the unserved part of the initially imposed punishment exceeds these terms (Part 3 of Article 80 of the Criminal Code). Thus, if 1.5 years of an unserved sentence of imprisonment is replaced by arrest, then its duration cannot exceed 6 months.
5. When considering a petition from a convicted person or a submission from the administration of an institution or body executing a sentence to replace the convicted person’s unserved part of the sentence with a milder form of punishment, the court is obliged to take into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence, his attitude towards the committed act, and then that the convicted person partially or fully compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime. If a convicted person who, at the age of over eighteen, has committed a crime against the sexual integrity of a minor under fourteen years of age, suffers from a disorder of sexual preference (pedophilia), which does not preclude sanity, the court must also take into account the application of compulsory medical measures to the convicted person, his attitude to treatment and the results forensic psychiatric examination.
6. When replacing the unserved part of the sentence with a milder type of punishment, the convicted person, at the discretion of the court, may be fully or partially released from serving an additional sentence imposed by a court verdict (Part 1 of Article 80 of the Criminal Code). Persons for whom the unserved part of the sentence imposed by a court verdict was replaced by a more lenient type of punishment, on the grounds and in the manner established in Article 79 of the Criminal Code, may be released on parole early from further serving this new type of punishment.
7. Exemption from serving part of the sentence imposed by the court with the replacement of a more lenient punishment is unconditional and cannot be cancelled. If, after such a replacement, a person commits a new crime while serving a more lenient punishment, then the unserved part of the more lenient punishment is added to the newly imposed punishment for the second sentence.
8. The period for expunging a criminal record when replacing the unserved part of imprisonment with a milder type of punishment is calculated based on the actually served term of imprisonment, but the expiration period for a criminal record begins from the moment of serving the main (assigned in accordance with Article 80 of the Criminal Code) and additional punishment (Part 4 Article 86 of the Criminal Code). For example, the expiration date of a criminal record, which, on the basis of paragraph “c” of Part 3 of Art. 86 of the Criminal Code is equal to three years, begins to be calculated from the moment of serving a new type of punishment imposed in place of the unserved part of imprisonment, if an additional punishment was not imposed or the convict was released from serving it, or after serving an additional sentence.
Replacing other types of punishment with a more lenient one does not affect the calculation of the expiration period for a criminal record, since in all cases it is equal to one year (clause “b”, part 3 of article 86 of the Criminal Code).
Malicious evasion from serving the remainder of the sentence
If the sentence of imprisonment imposed on the convicted person was replaced in accordance with Art. 80 of the Criminal Code of the Russian Federation with a restriction of freedom, from serving which he maliciously avoided, the court, on the proposal of the Criminal Investigation Inspectorate, is considering the issue of replacing this punishment with imprisonment (Part 5 of Article 58 of the Penal Code of the Russian Federation).
If the convicted person maliciously evades serving the remaining part of the sentence, replaced by a milder type of punishment on the basis of Article 80 of the Criminal Code of the Russian Federation, the type of correctional institution is assigned to the one that was previously determined by the court verdict in accordance with Art. 58 of the Criminal Code of the Russian Federation, regardless of the type of correctional institution from which the convicted person was released.
What documents need to be prepared
In addition to the application itself and the evidence base, the applicant must submit the following papers:
- verdict in the case and other decisions;
- an application for parole and similar papers, if they were issued previously;
- medical editing;
- evidence of compensation for damage caused to the victim;
- documents confirming the violator’s residence permit and his own home;
- results of a forensic psychiatric examination (if necessary);
- characteristics from the administration
Collection of evidence
The court may replace a previously chosen preventive measure only if there are compelling reasons. Depending on the circumstances of the case, documents from the following list can be attached to the petition:
- a letter of guarantee from an employer willing to hire a convicted citizen;
- characterization from the convict's neighbors;
- the request of the victim to satisfy the petition of the convicted person;
- characteristics from an educational institution;
- documents indicating the scientific or sporting achievements of the criminal;
- characteristic from the place where the punishment ends.
The chances of your request being granted are increased if an experienced lawyer takes on the case. It will allow you to collect a comprehensive documentary base and provide the citizen with protection in court.
