Grounds for imposing a suspended sentence in Russia

MIP online legal encyclopedia - » Criminal cases - comments from a Federal Judge / MIP Law Group » Punishment » Conditional sentence - comments from a Federal Judge / MIP Law Group

Sign up for a consultation with the head of the criminal department. Professional explanations. Unlimited consultation time

Probation - free answers from lawyers online

general information

The concept of conditional sentence (hereinafter referred to as CS) is a form of evasion from the main punishment.

The court considers an order to commute the sentence by introducing a probationary period and imposing certain conditions.

The time frame of the trial period is formed for each specific (individual) case. During this period, the accused is considered convicted.

The maximum boundaries of the period of probation of a convicted person are listed in Art. 73 of the Criminal Code of the Russian Federation, part 3.

The court has the right to impose punishment in the form of a suspended sentence under the following provisions :

• exclude visiting certain institutions/areas;
• reduction in military service;
• eliminating the possibility of changing place of residence;
• undergo therapy aimed at treating bad/addictive habits (alcoholism, drug addiction, sexually transmitted diseases);
• restriction of freedom of action (restraining the accused in the apartment);
• correctional work;
• detention in a disciplinary military unit, etc.

Compliance with the assigned conditions by the accused is under strict supervision of the state. organs.

Upon compliance with the instructions, the convicted person receives the right to have restrictions lifted and a criminal record expunged.

Cancellation of the criminal sentence and full is carried out under the following provisions:

• deviation from government surveillance organs;
• failure to comply with court-ordered provisions;
• commission of a crime/offence during the trial (probation) period.

Restrictions on probation:

• lack of voting rights;
• temporary restriction on leaving the Russian Federation until exemption from penalties;
• exclusion of the opportunity to work in the police, prosecutor's office, FSB;
• exclusion of employment (work) in civilian institutions.

Why do they give a suspended sentence?

If a citizen is sentenced to correctional labor, restrictions on military service, detention in a disciplinary unit or imprisonment for up to 8 years, the court may release him from actually serving the sentence. The judge has the right to make such a decision only if the correction of the offender is possible without isolation.

A suspended sentence cannot be obtained for especially serious crimes. In addition, it will not be prescribed:

• those convicted of crimes of a sexual nature against children under 14 years of age;
• when committing a serious or especially serious crime during the probationary period;
• in case of repeated crime of a dangerous or especially dangerous nature.

The court takes into account how dangerous the actions of the convicted person were for society and analyzes the presence of mitigating and aggravating circumstances. In the following cases, the chance of assigning a conditional sanction will be higher:

• committing a violation of the law for the first time;
• pregnancy;
• presence of children;
• difficult life circumstances that pushed a person to commit a crime;
• coercion, committing a crime due to dependence (material, service);
• immoral behavior of the victim;
• confession, assistance to the investigation;
• providing assistance to the victim.

Aggravating circumstances include:

• committing a crime again;
• serious consequences of the crime;
• participation in a crime as part of a group;
• motive of racial, national or religious hatred;
• concealing traces of another violation;
• assault on a pregnant woman or child;
• special cruelty.

Target

In the Criminal Code, the purpose of probation is equated to the purpose of criminal punishment . It is customary to define them as the result of conscious social influence, which is achieved by the method of condemnation.

The following provisions :

1. Prevention of socially dangerous actions, under the threat of criminal punishment.
2. General preventive influence on citizens prone to antisocial/antisocial behavior.
3. Corrections of the defendant - during the probationary period, has a socially oriented function and is aimed at eliminating antisocial and dangerous behavior.
4. Preventing the accused from committing future crimes is achieved either by preventive supervision by the penitentiary authorities, or by social measures during rehabilitation.
5. Preventing the commission of offenses by other persons (generally preventive purpose) - the most stringent measures are prescribed in case of violation and irreversibility is emphasized when a crime is committed.

Clearance of a criminal record

In this case, the removal of a criminal record from a person who has violated the law is carried out after the probationary period ends. Of course, if the offender was able to understand the consequences of his act, compensated for material damage to the victim (if any was caused) and complied with all court orders.

With a suspended sentence, early expungement of a criminal record can also be applied:

1. If a person behaves impeccably.
2. Doesn't commit any offenses.
3. Has a positive reference from work or school.
4. Fulfilled all court orders.

If you break the law, you need to find out whether a suspended sentence can be applied. But in order to remain free, you need to do everything the court says. Including voluntary admission of guilt and compensation for material (and moral) damage. This is the only way to avoid real imprisonment in a colony.

Reasons for use

The basis for the application of a suspended sentence is the permissible correction of the accused without serving the full sentence, which is established in court. The motives for the management are limited by the standards of penalties and the deadline.

If the defendant has committed a serious/especially serious crime, the Criminal Code is abolished.

The court's decision is influenced by a number of the following provisions :

• cooperation of the accused during the investigation;
• early violations of law and order (for persons who have committed more than one crime - the decision is made according to the totality of crimes);
• Family status;
• if it is proven that the defendant had a minor role in the violation;
• various circumstances mitigating and aggravating punishment;
• the character and personality of the accused;
• severity of the violation, etc.

The grounds for use are specified in Article 73 of the Criminal Code (1 part) .

Conditions and procedure for assigning a suspended sentence

However, the law does not allow every criminal to be given a suspended sentence, since not every criminal can reform without serving a real sentence in a penal colony or prison.

Thus, the law allows the use of a suspended sentence and its serving only in the following cases:

• The court believes that it is not necessary to actually deprive this criminal of his freedom, and the goals of his correction can be achieved through a suspended sentence. For example, such a measure of punishment is often used by the court in relation to minors, since imprisonment for minors can become a great stress and subsequently lead to the commission of new crimes.
• The maximum punishment for a crime involving isolation from society does not exceed 8 years. So, if the court sentenced a criminal to 10 years in prison, in this case a suspended sentence will no longer be applied.
• The offender is characterized on the positive side and has mitigating circumstances. The law indicates to the court that when choosing between a suspended sentence and a real sentence, the court must also pay attention to such circumstances as the personality of the offender and the presence of mitigating circumstances. For example, if the objective picture of a criminal is positive, it is logical to conclude that it is not necessary to actually deprive such a criminal of his freedom in order to correct him.
• A criminal released from a penal colony or prison early commits a new unintentional or minor crime. In this case, the court may assign a conditional sentence to a criminal who has stumbled again after early release, if the commission of a new crime does not require depriving the person of liberty again to restore justice.

The law also strictly regulates when a suspended sentence and the removal of a criminal record without a real term cannot be applied by the court.

A criminal who:

• Committed crimes that violated the sexual integrity of minors (less than 14 years old).
• A criminal who commits crimes that pose a terrorist threat to society or government officials.
• Committed a serious crime after being released early from a colony or prison.
• Committed a similar crime again (recidivism). In case of recidivism, conditional sentence is not allowed.

Thus, the nature of conditional sentencing as a punishment that does not require real imprisonment for the criminal implies, first of all, the correction of the criminal and his release from real imprisonment.

Probation

A probationary period for a suspended sentence (hereinafter referred to as IP) is a period of time established by court during which the accused has the right to reform.
The minimum term is 6 months , the maximum term of suspended sentence is 3 years . At the end of the period, the criminal record can be expunged (if the requirements are implemented).

Key points:

1. The IP is recorded in the conviction.
2. The length of the period is determined individually.
3. The countdown begins immediately after the verdict comes into force.
4. The IP is extended if the accused evades duties or commits violations of law and order and is subject to administrative liability.

Examples of suspended sentence terms in criminal law:

• from 1 to 3 years - it is not allowed to occupy a specific position/certain practice (activity);
• from 6 months to 2 years - test work;
• from 6 months to 2 years - service restrictions, etc.

How to get a suspended sentence

Let's consider the procedure for obtaining a suspended sentence under the Criminal Code of the Russian Federation:

• the judge reads the verdict;
• the court office forwards the decision to the criminal corrections commission;
• within 15 days, the Criminal Investigation Department gets acquainted with the received materials and appoints a prosecutor;
• the prosecutor prepares a notice for the convicted person;
• the citizen is sent a document about the need to register, according to which he must appear for registration at the inspectorate;
• the convict undergoes a fingerprinting procedure, is photographed and explained where and how to report.

Cancellation procedure

What is the procedure for revoking a suspended sentence according to Article 74 of the Criminal Code of the Russian Federation ?

Cancellation of the criminal code is an incentive measure when the accused unswervingly complies with all court instructions and the fact of correction is not in doubt by the court/criminal-executive supervision.

Grounds for revocation of probation:

• during the IP period, the accused proved correction;
• with methodical violation of public order, evasion of regulations, hiding from state control. authorities, bringing to administrative responsibility (with further execution of the punishment in full);
• the court decides whether to cancel or maintain the criminal code when unintentional and intentional crimes of various forms of gravity are committed in the IP;
• critical attitude of the accused to the crime, admission of guilt, compensation for harm from the crime and other actions;
• it is possible to cancel the EO with the annulment of a criminal record after the expiration of most of the established EC;

The fact of cancellation of the MA is indicated in the legal document .

It records data that characterizes the personality, the execution of assigned orders and the behavior of the accused as a whole.

The certificate is supplemented by characteristics of the district police officer, from the place of study, work and other documents that prove the correction.

After making a decision to abolish the prison sentence, the inspectorate carries out preventive activities to familiarize convicts with their rights.

Reasons why a suspended sentence is not given

A suspended sentence is as follows: the administrative body makes a verdict, but does not prescribe serving it in prison, but only a conditional form of it.

The administrative body does not carry out the punishment only if it is subject to the fulfillment of specific conditions specified in the judicial decision. The possibility of receiving a suspended sentence is applicable only under the conditions established by law and with certain types of punishment:

• Corrective actions. • Arrival under different conditions.

A suspended sentence is not assigned under the following conditions:

• Committing a serious/especially serious crime. • Committing an action that threatens the lives of other people. • For crimes against sexual integrity.

Conviction of minors

for certain norms or specifics of probation for minors . The main definitions from the Criminal Code are identified.

The following norms are generally understood:

• assigning a degree of influence (correctional labor/restriction of freedom) when committing a crime of minor/medium gravity;
• the degree of violation and danger to society, the identity of the perpetrator, mitigating/aggravating circumstances are taken into account;
• The Criminal Code for serious crimes is applied only in exceptional mitigating circumstances;
• IP for minors (as for adults) ranges from six months to three years;
• in some circumstances there are additional penalties;
• a minor with a criminal record is obliged to: live in a permanent place, not change jobs or studies without warning special authorities, undergo a course of therapy (drug addiction, substance abuse, alcoholism, etc.), not visit certain places, fulfill other assigned obligations that contribute to correction;
• supervision of minors is carried out by the criminal-executive inspection, as well as units dealing with problems with minors;
• prescribed duties on the IP may be supplemented or completely/partially cancelled.

Where to report while on probation

The frequency of appearance of the convicted person must be determined by the court. Otherwise, the procedure is established by the criminal-executive inspection. The citizen is informed about the date and time of appearance when registering. Notification is sent by mail. The frequency may vary in each case. It depends on how far the person lives from the inspection, and whether he has the opportunity to come often.

Note!

You must appear for the first time no later than 10 days from the date of registration.

Consequences

There are favorable and unfavorable consequences of probation, which are specified in the legal legislation.

The following provisions are highlighted:

1. The ability of the accused to avoid imprisonment for a certain period, as well as the expungement of a criminal record ahead of schedule. In this case, the main punishment is not subject to execution, and after the probationary period the person is recognized as not having been convicted.
2. Serving a full sentence after systematic violations, evasion of fines and administrative penalties.
3. Serving the full sentence in case of violation of the conditions of probation, evasion of educational influence and control in the case where the accused was transferred for correction to a public organization or work collective.
4. Serving the sentence in full, which occurs after the fact of a new crime during the probationary period.

A suspended sentence has a criminal legal nature, the main purpose of which is to reform the accused during the probationary period.

The accused is assigned various orders: correctional labor, imprisonment, restrictions on the type of activity, position held, or imprisonment in a military unit. These provisions also apply to minors .

The revocation of a suspended sentence is carried out on the prescribed grounds established by the Criminal Code . The maximum conditional penalty period does not exceed the three-year mark .

Replacing a suspended sentence with a real one

Let us consider in what cases a suspended sentence is replaced by a real one. If a citizen’s probation period is extended due to unwillingness to compensate for harm or evasion of responsibilities, the court may revoke the suspended sentence and return the original sentence. A person may also be placed in prison or a colony.

Replacing the conditional period with a real one is also possible if a citizen violates public order during the probationary period, is held accountable under the Code of Administrative Offenses of the Russian Federation, systematically fails to fulfill the duties assigned by the court, or hides from the control authority.

If the convicted person, during the period established by the court, commits a crime through negligence or an intentional illegal act of minor or moderate gravity, the court decides whether to maintain the suspended sentence or revoke it.

If during the probationary period a serious or especially serious illegal act is committed, the offender will be sentenced based on the totality of sentences. This means that a new term is added to the previously unserved one. The conditional sentence is revoked.

Commentary to Art. 73 of the Criminal Code of the Russian Federation

The essence of a conditional sentence is that the court, when passing a guilty verdict, assigns a specific type of punishment to the convicted person and determines its term, but decides to consider the imposed punishment suspended, i.e. not to actually carry it out under the condition that the convicted person fulfills certain requirements and complies with the duties assigned by the court. Therefore, we can say that the legal nature of a suspended sentence consists in the conditional release of the convicted person from actually serving the sentence assigned to him. A suspended sentence is not a criminal punishment. It is not included in the list of types of punishment provided for in Art. 44 of the Criminal Code of the Russian Federation. The presence in the criminal law of the institution of suspended sentence is the implementation of the principles of justice and humanism, and this institution is applied in cases where the nature and degree of public danger of the crime and the identity of the perpetrator indicate that there is no need for the real application of criminal punishment, and achieving the goal of correcting the convicted person is possible without applying restrictions related to the actual impact of punishment. These positions must be substantiated in the court's verdict. Therefore, for example, the Cassation Ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 24, 2005 N 67-o05-62 declared the application of a suspended sentence to S. and Sh to be incorrect. As noted in the Ruling, deciding the issue of appointing S. and Sh. conditional sentence, the court indicated that it takes into account all the circumstances of the crimes committed and believes that their correction is possible without actually serving the sentence. However, the court did not indicate exactly what circumstances of the case it had in mind, which would indicate the possibility of correcting the convicts under conditional sentences, and also did not indicate due to what circumstances the court came to the conclusion about the possibility of correcting S. and Sh. without actually serving the sentence . Given such data, the application of a suspended sentence to S. and Sh. cannot be considered justified.

In Art. 73 of the Criminal Code of the Russian Federation provides a complete list of types of punishments in respect of which the court may decide to consider the imposed punishment suspended. In this case, the court must take into account data characterizing the personality of the perpetrator, the nature and degree of public danger of the crime committed, and circumstances mitigating and aggravating his guilt. The assignment of a suspended sentence must meet the goals of correcting the conditionally convicted person, due to which he may be assigned to perform certain duties specified in Part 5 of Art. 73 of the Criminal Code of the Russian Federation. In necessary cases, taking into account the personality of the perpetrator, his behavior in the family and other circumstances, the convicted person may be assigned to perform other duties not listed in Part 5 of the said article of the Criminal Code of the Russian Federation.

It should also be noted that a suspended sentence of imprisonment can be imposed only when imprisonment itself as a form is imposed for a period of up to eight years and if the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence.

Such types of punishment as a fine, deprivation of the right to hold certain positions or engage in certain activities, arrest, or compulsory labor cannot be considered conditional. This is due to the fact that the execution of these punishments is more effective when they are actually served.

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 .

As the Constitutional Court of the Russian Federation indicated in Resolution No. 3-P of March 19, 2003, the federal legislator, implementing what belongs to him by virtue of paragraphs “c”, “o” of Art. 71 and part 1 of Art. 76 of the Constitution of the Russian Federation, powers in the field of regulation and protection of human and civil rights and freedoms, as well as criminal and penal legislation, are entitled within the limits provided for by the Constitution of the Russian Federation and on the basis of those enshrined in Part 1 of Art. 1, art. 2, part 2 art. 4, part 1 and 2 art. 15, part 1 art. 49 and part 3 of Art. 55 principles independently determine the content of the provisions of criminal and penal laws, including establishing the criminality of specific socially dangerous acts, their punishability and other criminal legal consequences of a person committing a crime.

The discretionary powers of the legislator include, in particular, determining the duration and procedure for calculating the probationary period assigned to a person in the event of his conditional conviction, since the Constitution of the Russian Federation does not contain direct instructions in this regard and since the solution to this issue is carried out within the framework of the subject of regulation of the relevant branch of law and in in accordance with the principles enshrined in the Constitution of the Russian Federation and sectoral legislation.

———————————

Determination of the Constitutional Court of the Russian Federation of October 16, 2007 N 826-О-О // Constitutional justice in the CIS and Baltic countries. 2008. N 2.

When rendering a suspended sentence of imprisonment, the type of correctional institution is not indicated.

If the court comes to the conclusion that it is possible to impose a suspended sentence on a person who has committed two or more crimes, such a decision is made not for each crime, but when finally imposing punishment for a set of crimes.

When applying a suspended sentence after the verdict is announced, the presiding officer explains to the convicted person the meaning of the probationary period and warns about the consequences of committing a new crime or systematic violations of public order (for military personnel - also military order) during the probationary period, as well as violation of the duties assigned to him, if any. . The specified explanation and warning must be reflected in the minutes of the court session.

In the event of a suspended sentence, additional punishments may be applied along with the main ones. The Criminal Code of the Russian Federation does not provide for the principle of conditionality regarding additional types of punishment, therefore all of them must be implemented realistically. Because of this, the operative part of the sentence must indicate that, in accordance with Art. 73 of the Criminal Code of the Russian Federation, only the main punishment is recognized as conditional.

For example, for violation of traffic rules by a person driving a car, resulting in the infliction of grievous harm to the health of the victim through negligence, the perpetrator is punished by two years of imprisonment with deprivation of the right to drive vehicles for a period of three years. In this situation, the court may consider the main punishment to be suspended, and as for the additional punishment, it must be actually executed, and the guilty person does not have the right to drive vehicles during the period established by the court.

When applying deprivation of a special, military or honorary title, class rank or state awards to a conditionally convicted person as an additional punishment, it should be taken into account that, provided for in Art. 48 of the Criminal Code of the Russian Federation, punishment can be imposed for committing a grave or especially grave crime. At the same time, the sentence must indicate why it is impossible for the defendant to retain these titles and awards while simultaneously applying a suspended sentence to him. A change by a higher court in the classification of the crime committed by the perpetrator from a serious to a less serious crime entails the need to exclude from the sentence the instruction to deprive the convicted person of a special rank or state awards.

The Criminal Code of the Russian Federation does not prohibit the use of a suspended sentence for any crime, regardless of what category it belongs to (Article 15). However, one should be extremely careful about assigning a suspended sentence for serious and especially serious crimes, bearing in mind that the very fact of their commission, the social and public danger, and the onset of consequences indicate the inappropriateness of assigning a suspended sentence to the perpetrator. In addition, such a punishment will not fully reflect the goals of sentencing (social justice, correction of the convicted person and prevention of the commission of new crimes).

The assignment of a suspended sentence must meet the goals of correcting the conditionally convicted person, due to which he may be assigned to perform certain duties specified in Part 5 of Art. 73 of the Criminal Code of the Russian Federation. In necessary cases, taking into account the personality of the perpetrator, his behavior in the family and other circumstances, the convicted person may be assigned to perform other duties not listed in Part 5 of Art. 73 of the Criminal Code of the Russian Federation.

The Criminal Code of the Russian Federation provides for the possibility of the court imposing on a conditionally convicted person the following duties: not to change his permanent place of residence, work, study without notifying the specialized government body that carries out the correction of the convicted person, not to visit certain places, to undergo treatment for alcoholism, drug addiction, substance abuse or venereal disease , provide financial support to the family. The list of responsibilities is not closed. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction.

But these duties should not be the second main punishment, as was done in the case of K., to whom, under Part 1 of Art. 161 of the Criminal Code of the Russian Federation in accordance with Part 5 of Art. 73 of the Criminal Code of the Russian Federation, a sentence of imprisonment was imposed and the obligation was imposed to perform free public works for a duration half as long as the minimum duration of such a punishment as compulsory work. This circumstance, in the opinion of the presidium of the regional court, excluded the imposed obligation from the number of punishments provided for in Art. 44 of the Criminal Code of the Russian Federation.

The Presidium of the Supreme Court of the Russian Federation changed the existing court decisions.

———————————

Resolution of the Presidium of the Supreme Court of the Russian Federation N 891p2002 in the case of Koloev // Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2002 (in criminal cases) (approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of March 12, 2003) // Bulletin of the Supreme Court of the Russian Federation . 2003. N 7.

When rendering a sentence by which the conviction is considered suspended, the court is obliged to explain to the convicted person the conditions for serving such a sentence and the consequences for evading the duties assigned to him.

Control over the behavior of a conditionally convicted person is carried out by an authorized specialized state body (criminal enforcement inspection), and in relation to military personnel - by the command of the military unit and institution.

After registration, the conditionally convicted person is called to the inspectorate for a conversation, during which he is explained the duties, the consequences of failure to fulfill them and responsibility for violating public order or committing a new crime, for which a subscription is taken, personal data is clarified and checked, and information about close relatives is found out. and persons who can influence the convicted person, as well as other issues relevant to monitoring his behavior. A certificate is drawn up about the results of the conversation, which, together with the signature, is attached to the personal file of the convicted person.

A conditionally convicted person is obliged to report to the inspectorate about his behavior, fulfill the duties assigned by the court, and appear when summoned to the inspectorate.

In order to monitor the behavior of probationers during the probationary period, the inspectorate:

— at least once a quarter, checks conditionally convicted persons according to special records of the internal affairs body to identify new offenses and bring them to criminal liability. Certificates of inspection results are filed in the personal files of probationers;

- takes part in preventive measures carried out by internal affairs bodies to check conditionally convicted persons at their place of residence and in public places. Certificates of inspection results are filed in the personal files of probationers;

- systematically (at least once a quarter) sends lists of probationers registered with the inspectorate to the relevant departments of the internal affairs bodies. Certificates of preventive conversations with him and all materials relating to the behavior of the convicted person and the performance of his duties, as well as explanations of the convicted person and other documents are attached to the personal file of the convicted person.

In relation to a conditionally convicted person, who has been ordered by the court not to change his place of work or study without notifying the inspectorate, to undergo treatment for alcoholism, drug addiction, substance abuse or a venereal disease, he notifies the administration of the organization, educational institution and medical institution.

A registration sheet is created in relation to a conditionally convicted person who has been ordered by the court to appear at the inspection for registration.

For good behavior and conscientious performance by a conditionally convicted person of the duties assigned by the court during the probationary period, the court, upon the proposal of the inspectorate, may cancel in whole or in part the duties assigned to him.

In cases where a probationer shows dishonesty and commits individual violations in fulfilling the duties assigned to him, the supervisory authority may apply to the court with a proposal to supplement the previously assigned duties with new ones. The court, considering the submission of the supervisory authority, has the right to both satisfy the requests set out in it and refuse to satisfy them. It should be emphasized here that the court does not have the right to replace some duties with others, but only has the right to cancel in whole or in part the duties assigned by a court verdict, or to supplement the duties previously established by the verdict with others.