On the participation of a defense lawyer in the case of changing the type of correctional institution of a convicted person

At the beginning of December 2022, a trustee turned to me for legal assistance, since a case was about to be heard regarding the transfer of her husband, a convict from a settlement colony to a high-security correctional colony.

As the trustee explained, her husband was convicted of committing a crime related to illegal drug trafficking and sentenced to 9 years in prison to be served in a maximum security correctional colony.

After 6 years of serving his sentence in the named colony, with a conscientious attitude to work and exemplary behavior, the convict raised the question of changing the type of correctional institution from a maximum security correctional colony to a settlement colony.

At the same time, the administration of the correctional institution supported the petition of the convict to change the type of correctional institution, since he was characterized positively, firmly embarked on the path of correction, and the court granted this request and issued a ruling to change the type of correctional institution from a maximum security colony to a settlement colony.

The convict was transferred to further serve his sentence in a colony settlement in the Ryazan region.

Earlier, during a transfer to the Federal Penitentiary Facility No. 1 of the Federal Penitentiary Service of Russia in the Ryazan Region, during a personal search of the convict in his hand luggage, the inspector found three SIM cards, which was reflected in the report.

Immediately after the discovery of the prohibited items, the convict wrote an explanation in his own hand, in which he expressed sincere repentance.

The administration of PKU SIZO-1 of the Federal Penitentiary Service of Russia in the Ryazan Region issued a resolution to place the convicted person in a punishment cell for a period of 15 days. In addition, the convicted person additionally faced another, more severe punishment. The head of the FKU SIZO-1 of the Federal Penitentiary Service of Russia in the Ryazan region issued a resolution recognizing the convicted person as a persistent violator of the established procedure for serving the sentence.

I consider this decision to be unfair and unnecessarily cruel, since the convicted person conscientiously served his sentence for 6 years, received 17 commendations, and mastered four specialties.

After arriving at the colony-settlement at FKI IK-5 of the Federal Penitentiary Service of Russia in the Ryazan Region, the convict was immediately placed in a punishment cell, from which he was released only two months later.

The head of FKU IK-5 of Russia for the Ryazan Region sent a proposal to the Skopinsky District Court of the Ryazan Region to change the type of correctional institution, to transfer the convicted person to further serve a sentence of imprisonment from a settlement colony to a maximum security correctional colony.

In this situation, my provision, at the request of the trustee, of legal assistance to a convicted person in uniform, participation in a court hearing on changing the regime of detention, seemed to me to be ineffective and, moreover, a deliberately losing option, which was confirmed by judicial practice.

Having started providing legal assistance, I set a priority task - to file an administrative claim with the Zheleznodorozhny District Court of Ryazan to challenge the actions of the administration of the pre-trial detention center-1 of the Federal Penitentiary Service of Russia in the Ryazan region, to declare it completely illegal and to cancel the decision to apply a penalty to the convicted person in in the form of placement in a punishment cell and on declaring illegal and completely canceling the decision recognizing the convicted person as a persistent violator of the established procedure for serving the sentence, initiating an administrative case and scheduling a court hearing.

The basis for filing a statement of claim was the illegal and unjustified application of a penalty measure to the convicted person in the form of placement in a punishment cell and recognition of him as a malicious violator of the established procedure for serving the sentence.

At the same time, the defense indicated that the administration of pre-trial detention center-1, in violation of Part 1 of Art. 117 of the Penal Code of the Russian Federation, when applying penalties to a person sentenced to imprisonment, the circumstances of the violation, the identity of the convicted person and his previous behavior are not taken into account.

The ruling of the Zheleznodorozhny District Court of Ryazan on the acceptance of an administrative case for court proceedings and the appointment of a court hearing made it possible to file a petition with the Skopinsky District Court of the Ryazan Region to postpone the scheduled court hearing to change the type of correctional institution, since the subject of consideration of the presentation of the head of PKU IK-5 from the contested actions of the administration of pre-trial detention center-1.

At the same time, numerous complaints were filed, including to the prosecutor's office of the Ryazan region, about the illegal actions of the administration of correctional institutions.

During the study of the material on bringing a convicted person to disciplinary liability, significant violations of the penal legislation of the Russian Federation, the Order on approval of the Uniform Regulations on the Commission of the Correctional Institution of the Federal Penitentiary Service of Russia in the Ryazan Region, responsible for the application of penalties to those sentenced to imprisonment, were revealed. In violation of the established procedure for imposing penalties, officials of the FKU SIZO-1 of the Federal Penitentiary Service of Russia in the Ryazan Region, participating in the meeting of the disciplinary commission and entitled to influence the imposition of a disciplinary punishment on the convicted person, compiled certificates that distorted the essence of the inspection carried out (the meeting of the commission was held in the absence of the convicted person, explanations from him were not received). These circumstances indicated a violation of the rights of the convicted person when bringing him to disciplinary liability.

Thus, the conclusions of the officials of the FKU SIZO-1 that the convict did not admit guilt and did not draw the proper conclusions for himself did not correspond to reality and indicated that they took a formal approach to the inspection and did not conduct preventive conversations with the convict.

As a result, an illegal decision was made to place the convicted person in a punishment cell for a period of 15 days and a decision to recognize the convicted person as a persistent violator of the established procedure for serving the sentence.

I would like to note that during the period of consideration of the materials in the Zheleznodorozhny District Court of the Ryazan Region and in the Skopinsky District Court of the Ryazan Region, new penalties were applied to the convicted person. By a resolution of the head of FKU IK-5, four more penalties were imposed on my client in the form of placement in a punishment cell (the convict illegally spent about two months there). The imposed penalties also had to be challenged in court. I had no illusions that with the end of the next penalty, the convict would be released to the site of the colony-settlement. Providing legal assistance to a client was reminiscent of fighting against “windmills.”

At the same time, the prosecutor's office of the Ryazan region for the supervision of compliance with laws in correctional institutions issued a resolution by which the head of the FKU SIZO-1 of the Federal Penitentiary Service of Russia in the Ryazan region ordered the application of a penalty measure to the convicted person in the form of placement in a punishment cell for a period of 15 days, as well as The decision recognizing him as a persistent violator of the established procedure for serving his sentence was canceled as illegal and unfounded.

In addition, later, during an inspection at PKI IK-5 of the Federal Penitentiary Service of Russia in the Ryazan Region, the Ryazan Regional Prosecutor's Office for Supervision of Compliance with Laws in Correctional Institutions examined materials on the imposition of penalties on a convicted person. According to the results, all four decisions of the head of the correctional institution FKU IK-5 of the Federal Penitentiary Service of Russia in the Ryazan Region on placing the convicted person in a punishment cell were canceled as illegal and unfounded.

On August 21, 2022, the Skopinsky District Court of the Ryazan Region considered the petition of a lawyer acting in the interests of the convicted person for parole from further serving his sentence. During the court hearing, the court examined and assessed in aggregate all the materials of the case, took into account the behavior of the convict, his characteristics, his attitude to work while serving his sentence, the presence of incentives, the absence of outstanding penalties and came to the conclusion that the convict had developed a respectful attitude towards society, towards labor, norms, rules and traditions of human society and developed law-abiding behavior, which, by virtue of Art. 9 of the Penal Code of the Russian Federation indicates the correction of the convicted person, due to which he does not need to further serve the sentence assigned to him. As a result, the court granted the request of the lawyer acting in the interests of the convicted person for conditional early release from further serving the sentence.

My own lawyer

In __________ district court
Address: _________________

From the convicted person:_________________________________

By the verdict of the ________district court of the ______ region dated "__"______ 201_, I was sentenced under Part__ Art.__ of the Criminal Code of the Russian Federation to ___ years ___ months of imprisonment with serving the sentence in a correctional colony of the _______ regime. The sentence came into force in _________201_. The beginning of the term of serving the sentence is “__”_____201_, the end of the term of serving the sentence: “__”______ 201_.

I believe that the type of correctional institution may be changed for me on the following grounds:

While serving my sentence, I had ___ times incentives:___________________________________________________________

________________________________________________________________________

“__”________ 201__for the lack of penalties and for violating the established procedure for serving a sentence and conscientious attitude to work, I was transferred to lighter conditions of serving the sentence.

I have no disciplinary actions.
I characterize the IC administration positively.
Fully (partially) compensated for the damage caused by the crime by__

____________________________________________________________________.

As established by the court verdict that entered into legal force, I admitted my guilt in committing a crime, repented of my deeds, petitioned for the use of a special trial procedure, and took measures to voluntarily compensate for the property damage caused to the victim.
I believe that the listed facts indicate the possibility of changing my type of correctional institution to ___________________.

According to Part 1 of Art. 78 of the Penal Code of the Russian Federation, depending on the behavior and attitude to work of those sentenced to imprisonment, the type of correctional institution may be changed.

In accordance with the legal position of the Supreme Court of the Russian Federation, reflected in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 9 of May 29, 2014 “On the practice of appointing and changing types of correctional institutions by courts”:

Within the meaning of Part 2 of Article 78 of the Penal Code of the Russian Federation, if the petition of the convicted person, as well as on his behalf of the lawyer, to change the type of correctional institution, there are no documents that the administration of the correctional institution in which the convicted person is serving his sentence is required to submit, it is recommended to send a copy of the petition to the specified correctional institution for subsequent submission by the administration of the necessary materials to the court.

Based on the above, in accordance with Articles 397 of the Code of Criminal Procedure of the Russian Federation, 78 of the Penal Code of the Russian Federation,

ASK:

Change the type of correctional institution for the convicted person_______________________________________________ from colony______________ to _____________

Application:

A copy of the petition.

"__"_________ 2022 Full name

Replacement of the unserved part of the sentence with a more lenient punishment

Dear Evgenia Yuryevna! A question has arisen on which I would like to hear your opinion - because I somehow doubt the correctness of some points... So, I was asked to prepare a petition to replace the unserved part of the sentence with a colony-settlement. Previously, I didn’t really work with the PEC of the Russian Federation, so I started digging ConsultantPlus and, of course, Pravorub and your article on it, which God himself ordered. After studying, I came to the conclusion that submitting a petition to replace the unserved part of the sentence with a more lenient one, specifying it in the form of a colony-settlement, is formally incorrect... in this topic, the question of specifying the desired replacement arose, to which you replied: ↓ Read in full ↓ in order to make the work easier judges (this is very welcome), you can indicate in the petition the type of punishment with reference to Art. 78 of the Criminal Executive Code of the Russian Federation. However, Art. 78 of the Penal Code of the Russian Federation provides for a change in the type of correctional institution, but not a change in the type of punishment to a more lenient one... What is a strict regime colony, what is common, that a colony-settlement are, according to Art. 56 of the Criminal Code of the Russian Federation, to the type of punishment provided for in Part 1 of this article - Imprisonment for a certain period. Replacing the unserved part of the punishment with a more lenient one, it turns out, should lead to replacing the punishment of imprisonment with punishment - if we take the list from Art. 44 of the Criminal Code of the Russian Federation - (The punishment that occupies a higher line in the legislative list of punishments in Article 44 of the Criminal Code of the Russian Federation is considered more lenient) - Article 44 of the Criminal Code of the Russian Federation. Types of punishments Types of punishments are: .... d) compulsory work; …. e) correctional labor; …. k) imprisonment for a certain period;

Consequently, the court may replace deprivation of liberty with one of the following types of punishment: compulsory labor, correctional labor, restriction of freedom or arrest, and in relation to military personnel - restriction on military service or detention in a disciplinary military unit. according to

Article 80. Replacement of the unserved part of the punishment with a more lenient type of punishment 1. For a person serving detention in a disciplinary military unit, forced labor or imprisonment, the court, taking into account his behavior during the period of serving the sentence, may replace the remaining unserved part of the punishment with a more lenient type of punishment. Article 56 of the Criminal Code of the Russian Federation. Deprivation of liberty for a specified period 1. Deprivation of liberty consists of isolating a convicted person from society by sending him to a penal colony, placement in an educational colony, a medical correctional institution, a correctional colony of general, strict or special regime, or to prison.

Here is the question - to submit a petition to replace the unserved part of the sentence with a more lenient punishment, specifying or not specifying the desired replacement - a colony settlement in accordance with Article 80 of the Criminal Code of the Russian Federation, 175 of the Penal Code of the Russian Federation,

or submit a petition to change the type of correctional institution in accordance with Art. 78 of the Penal Code of the Russian Federation... in general it’s somehow strange, in accordance with Art. 78 of the Penal Code of the Russian Federation - c) from general regime correctional colonies to a settlement colony - after convicts in light conditions of detention have served at least one quarter of their sentence; Moreover, there is no dependence on the severity of the crime committed at all... In accordance with Article 80 of the Criminal Code of the Russian Federation, 175 of the Penal Code of the Russian Federation - 2. The unserved part of the punishment can be replaced by a more lenient type of punishment after the actual serving of the sentenced to imprisonment for committing: a minor crime or moderate severity - at least one third of the sentence; serious crime - at least half of the sentence; especially serious crime - at least two-thirds of the sentence; where did I miss something - where did the dog rummage? Or is it all about the words - of convicts in light conditions of detention?