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Conditional sentence
- Part 1 73 of the Criminal Code
conditionally, if correction is possible without actually serving
Types of punishments that can be suspended:
- Part 1 73 of the Criminal Code
correctional labor
- Part 1 73 of the Criminal Code
military service restriction
- Part 1 73 of the Criminal Code
content in the disciplinary section
- Part 1 73 of the Criminal Code
imprisonment, may be suspended if the term is up to 8 years
- part 4 73 of the Criminal Code
with probation, they may impose an additional sentence
When a suspended sentence is not given
- clause "a" part 1 73 of the Criminal Code
not assigned conditionally against immunity for up to years
- clause "a.1" part 1 73 of the Criminal Code
not given a suspended sentence for terrorist offenses
- clause "b" part 1 73 of the Criminal Code
is not assigned to probation again for a serious crime during the period of probation
- clause "c" part 1 73 of the Criminal Code
not conditionally assigned if there is a dangerous relapse
What is taken into account for probation?
- part 2 73 of the Criminal Code
Circumstances that influence the assignment of a suspended sentence:
- part 2 73 of the Criminal Code
nature of public danger
- part 2 73 of the Criminal Code
degree of public danger
- part 2 73 of the Criminal Code
identity of the culprit
- part 2 73 of the Criminal Code
extenuating circumstances
- part 2 73 of the Criminal Code
aggravating circumstances
Probation
- Part 3 73 of the Criminal Code
probationary period is a period to prove correction
- Part 3 73 of the Criminal Code
if the punishment is up to 1 year, the probationary period is up to 3 years
- Part 3 73 of the Criminal Code
if the punishment is more than 1 year, the probationary period is up to 5 years
Calculation of the probationary period
- Part 3 73 of the Criminal Code
calculated from the moment the sentence comes into force
- Part 3 73 of the Criminal Code
the time elapsed from the day the verdict was announced is counted
- Part 3.1 73 Criminal Code
in the disciplinary part, the term is within the service period
Responsibilities during the probationary period
- part 5 73 of the Criminal Code
do not change your permanent place of residence, work, study
- part 5 73 of the Criminal Code
don't go to certain places
- part 5 73 of the Criminal Code
undergo treatment for alcoholism and drug addiction
- part 5 73 of the Criminal Code
find a job, continue education
- part 5 73 of the Criminal Code
other responsibilities may be assigned
- part 7 73 of the Criminal Code
responsibilities can be canceled or added
Control over the convicted person
- part 6 73 of the Criminal Code
control over the convicted person is carried out by the Federal Penitentiary Service
Note
— approx. to 73 CC
What are crimes against persons under 14 years of age?
Plenum of the Supreme Court
Plenum
on the practice of applying conditional sentences dated March 4, 1961 No. 1
Additional Information
- paragraph 61
Plenum No. 58, features of the application of Article
73 of the Criminal Code
- clause 18
Plenum No. 9, in the event of a suspended sentence, the type of institution is not assigned
Practical aspects
Conditional sentence
, possibilities of applying norm
73 of the Criminal Code
SITUATIONS from practice
Probation
in case of relapse: is it possible, how can norm
64 of the Criminal Code
?
Article 73 of the Criminal Code. Conditional sentence
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- P.
Plenum No. 1 prohibition of suspended sentences for serious offenses
1) The court decides to consider the imposed sentence suspended,
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Accounting for the category of crime
- P.
Plenum No. 1 is suspended if the crime is not of great danger
- P.
Plenum No. 1 prohibition of suspended sentences for serious offenses
if it comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence, prescribing:
—
correctional labor,
— restrictions on military service;
— content in the disciplinary part;
- imprisonment for up to 8 years.
A suspended sentence is not imposed:
a) those convicted of
crimes against the sexual integrity of persons under 14 years of age ;
a.1) convicted for crimes provided for in Part 1
-
Part 2 205.1
,
205.2
,
Part 2 205.4
,
Part 1 - Part 3 206
,
Part 4 210 Criminal Code, 210.1 Criminal Code and 360 Criminal Code ;
b) when
committing a serious or especially serious crime:
- during the probationary period for a conditional sentence imposed for committing
an intentional crime,
- or during the unserved part of the sentence imposed for committing an intentional crime for parole;
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Probation for reoffending
Relapse does not rule out
possibility of a suspended sentence if the relapse is simple
c) in case of dangerous and especially dangerous relapse.
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Five circumstances
Five circumstances
to be taken into account for the purpose of a suspended sentence
2) When assigning a suspended sentence, the court takes into account:
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— clause 1
Plenum No. 58 the nature of the hazard depends on the characteristics of the composition
- P.
Plenum No. 1 is suspended if the crime is not of great danger
Nature of the danger
The nature of public
dangers: consideration in sentencing
- the nature of the social danger of the crime committed,
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- P.
Plenum No. 1, when placing a suspended sentence, the circumstances of the case are taken into account
Danger level
Degree of public
dangers: consideration in sentencing
- the degree of public danger of the crime committed,
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- P.
Plenum No. 1 in the case of a suspended sentence, the identity of the perpetrator is taken into account
- identity of the culprit,
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- P.
Plenum No. 1 takes into account mitigating and aggravating circumstances
Extenuating circumstances
Extenuating circumstances
increase the possibility of probation
— extenuating circumstances,
— aggravating circumstances.
3) When assigning a suspended sentence, the court establishes a probationary period during which the suspended sentenced person must prove his correction by his behavior.
The probationary period must be:
- in case of imposition
of imprisonment for a term of up to 1 year or a more lenient type of punishment - no less than 6 months and no more than 3 years,
- and in case of imposition
of imprisonment for a term of more than 1 year - no less than 6 months and no more than 5 years.
The probationary period is calculated from the moment
the sentence enters into force.
The probationary period includes the time elapsed from the date of pronouncement of the sentence.
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- clause 62.1
Plenum No. 58, the suspended sentence in the dissertation part may be less than 6 months
3.1) If a sentence is imposed in the form
of detention in a disciplinary unit, the probationary period is established within the limits of the remaining period of military service on the day the verdict is announced.
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- paragraph 62
Plenum No. 58 conditional to additional punishments - not applicable
, additional types of punishment
may also be 5) The court, when imposing a suspended sentence, imposes on the conditionally convicted person, taking into account his age, ability to work and state of health, the performance of certain duties:
- do not change your permanent place of residence, work, study without notifying the executive inspection,
- do not visit certain places,
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- paragraph 35
Plenum No. 14 obligation of a course of treatment under articles on drugs
— undergo treatment for alcoholism, drug addiction, substance abuse or a sexually transmitted disease,
- work (get a job) or continue studying in a general education organization.
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- paragraph 61
Plenum No. 58 other duties not provided for in
Part 5 73 of the Criminal Code
The court may impose on a conditionally convicted person the performance of other duties that contribute to his correction.
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— 187 PEC
bodies supervising probationers
6) Control over the behavior of a conditionally convicted person is carried out by the executive inspection, and in relation to military personnel - by the command of military units and institutions.
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— P.13
Plenum No. 21 cancellation, addition of duties on probation
7) Within
probationary period, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may cancel in whole or in part or supplement the duties previously established for the conditionally convicted person.
Note. For the purposes of this article, as well as articles
79, 80, 82And 97 Criminal CodeCrimes against sexual integrity of persons under 14 years of age include crimes provided for in articles131, 132,133, 134,135, 240,241, 242.1, And242.2 of the Criminal Code committed against persons under 14 years of age.
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Article 73.1. Peculiarities of foreclosure on the debtor's equity securities
Commentary on Article 73.1
1. The commented article was introduced into the Federal Law of Industrial Property in 2009 and establishes the features of foreclosure on the debtor’s equity securities, the concept of which is enshrined in Art. 2 of the Law on the Securities Market. According to Art. 2 issue-grade security - any security, including uncertificated paper, which is simultaneously characterized by the following characteristics: it secures a set of property and non-property rights that are subject to certification, assignment and unconditional implementation in compliance with the form and procedure established by this Law; posted in releases; has equal volume and terms of exercising rights within one issue, regardless of the time of acquisition of the security.
In total, the Law provides for four types of equity securities: shares, bonds, issuer options, Russian depositary receipts.
A share is an issue-grade security that secures the rights of its owner (shareholder) to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the joint-stock company and to part of the property remaining after its liquidation. A share is a registered security.
A bond is an issue-grade security that secures the right of its owner to receive from the issuer of the bond its nominal value or other property equivalent within the period specified in it. A bond may also provide for the right of its owner to receive a fixed percentage of the nominal value of the bond or other property rights. Bond income is interest and (or) discount.
An issuer's option is an issue-grade security that secures the right of its owner to purchase, within the period specified in it and (or) upon the occurrence of the circumstances specified in it, a certain number of shares of the issuer of such an option at a price specified in the issuer's option. An issuer option is a registered security. The decision to place the issuer's options and their placement are carried out in accordance with the rules established by federal laws for the placement of securities convertible into shares. In this case, the placement price of shares in fulfillment of the requirements for the issuer's options is determined in accordance with the price specified in such an option.
A Russian depositary receipt is a registered emission security that has no par value, certifying ownership of a certain number of represented securities (shares or bonds of a foreign issuer or securities of another foreign issuer certifying rights in relation to shares or bonds of a foreign issuer) and securing the right its owner to demand from the issuer of Russian depositary receipts to receive in exchange for the Russian depositary receipt the corresponding number of represented securities and to provide services related to the exercise by the owner of the Russian depositary receipt of the rights secured by the represented securities. If the issuer of the represented securities assumes obligations to the owners of Russian depositary receipts, the specified security also certifies the right of its owner to demand the proper fulfillment of these obligations.
Shares, issuer options and Russian depositary receipts are registered securities. This means that information about the owners of such securities must be available to the issuer in the form of a register of owners of securities, the transfer of rights to which and the exercise of the rights assigned to them require mandatory identification of the owner.
Bonds can be either registered (see above) or bearer. The transfer of rights to them and the exercise of the rights secured by them do not require identification of the owner.
The procedure for foreclosure on issue-grade securities established by the commented article applies to all registered securities without exception: shares, issuer options, Russian depositary receipts and registered bonds. However, in relation to bearer bonds, this procedure does not apply to all their varieties, but only to bonds issued with mandatory centralized storage or deposited for other reasons with the depository.
When foreclosure is applied to the property of a debtor - the owner of registered issue-grade securities, as well as bearer issue-grade securities issued with mandatory centralized storage or otherwise deposited with the depository, such securities are seized according to the general rules established for securities (see .commentary to Article 82 of the Federal Law on Industrial Regulations).
2. Part 2 of the commented article talks about the relationship between the bailiff and the person who records the debtor’s rights to equity securities during the procedure for foreclosure on equity securities.
First of all, the bailiff needs to find out who exactly is accounting for the debtor’s rights to equity securities.
In accordance with the Law on the Securities Market (Article 7), such accounting can be carried out by:
— the issuer himself, i.e. a legal entity, an executive body of state power, a local government body that bears, on its own behalf or on behalf of a public legal entity, obligations to the owners of securities to exercise the rights secured by these securities (paragraph 10 of article 2 of the Law on the Securities Market) ;
— registrar on the basis of an agreement with the issuer. A registrar is a legal entity engaged in maintaining a register of securities owners (Clause 1, Article 8 of the Law on the Securities Market). The holder of the register of shareholders of joint stock companies, which in connection with the placement and (or) circulation of shares are required to disclose information in accordance with Art. 30 of the Law on the Securities Market, as well as in other cases provided for by federal laws (for example, in joint-stock companies with more than 50 shareholders), there can only be a registrar;
- depository, i.e. a person providing services for storing securities certificates and (or) recording and transferring rights to securities (paragraph 2 of article 7 of the Securities Market Law).
Within three days from the date of receipt of the writ of execution from the claimant or bailiff, the person who records the debtor's rights to equity securities fulfills the requirements contained in the writ of execution for debiting from the debtor's personal account or securities account and crediting to the personal account or securities account the collector of issue-grade securities or makes a note of complete or partial non-fulfillment of these requirements due to the absence of issue-grade securities in the debtor's accounts sufficient to satisfy the claims of the collector. Failure to fulfill this obligation by the entity to whom the bailiff's demand is addressed entails administrative liability on the basis of Part 2.1 of Art. 17.14 of the Code of Administrative Offenses of the Russian Federation (the sanction involves the imposition of an administrative fine on legal entities in the amount of one third of the cost of issue-grade securities subject to recovery, but not more than half the cost of such securities).
3. Part 3 of the commented article establishes the rule according to which securities are written off only from the personal accounts (custody accounts) of the owner of the securities; Writing off securities recorded on personal accounts (custody accounts) of a nominee holder or other accounts is not permitted. Under other accounts (in addition to personal accounts of owners and nominee holders) in accordance with Part 1 of Art. 8.2 of the Securities Market Law means:
1) trustee account;
2) deposit account;
3) treasury account of the issuer (the person obligated for the securities);
4) other accounts provided for by federal laws.
Thus, the enforcement measures provided for in the commented article can only affect the relationship between the owner of the relevant securities and the nominal holder. Relations between other participants in the securities market who are not direct owners are governed by the norms of legislation not on enforcement proceedings, but on the securities market. The competence of the bailiff does not imply the possibility of his influence on such relations.
4. Otherwise, the procedure for foreclosure on equity securities is identical to the procedure for foreclosure on the debtor’s funds with the only difference that the entity to which the corresponding demands of the debtor or bailiff are addressed is not a bank, but a person who records the debtor’s rights to issue-grade securities. Such persons may include both the issuer itself and a specialized registrar or depository.
Part 3 art. 73 of the Criminal Code of the Russian Federation
When assigning a suspended sentence, the court sets a probationary period during which the suspended sentenced person must prove his correction by his behavior. In case of imposition of imprisonment for a term of up to one year or a more lenient type of punishment, the probationary period must be no less than six months and no more than three years, and in case of imposition of imprisonment for a term of more than one year - no less than six months and no more than five years . The probationary period is calculated from the moment the sentence enters into legal force. The probationary period includes the time elapsed from the date of pronouncement of the sentence.
Part 5 art. 73 of the Criminal Code of the Russian Federation
The court, when assigning a suspended sentence, imposes on the suspended sentenced person, taking into account his age, ability to work and state of health, the performance of certain duties: not to change his permanent place of residence, work, study without notifying the specialized government body that monitors the behavior of the suspended sentenced person, not to visit certain places, undergo treatment for alcoholism, drug addiction, substance abuse or a sexually transmitted disease, work (get a job) or continue studying in a general education organization. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction.
Part 7 art. 73 of the Criminal Code of the Russian Federation
During the probationary period, the court, on the proposal of the body monitoring the behavior of the conditionally convicted person, may cancel in whole or in part or supplement the duties previously established for the conditionally convicted person. Note. For the purposes of this article, as well as articles 79, 80, 82 and 97 of this Code, crimes against the sexual integrity of minors under fourteen years of age include crimes provided for in articles 131 - 135, 240, 241, 242.1 and 242.2 of this Code, committed in in relation to minors under fourteen years of age.
Article 72.1 of the Criminal Code of the Russian Federation. Imposing punishment on a person recognized as a drug addict
Article 74 of the Criminal Code of the Russian Federation. Cancellation of suspended sentence or extension of probation period
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