Criminal Code of the Russian Federation in the latest edition:
Article 80.1 of the Criminal Code of the Russian Federation. Exemption from punishment due to a change in situation
A person who has committed a crime of minor or medium gravity for the first time is released by the court from punishment if it is established that, due to a change in the situation, this person or the crime he committed has ceased to be socially dangerous.
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Comments on Article 80.1 of the Criminal Code of the Russian Federation
The Criminal Code of the Russian Federation provides for the possibility of exemption from punishment in situations where, due to a change in the situation, the person who committed the crime or the crime he committed ceased to be socially dangerous.
The issue of release from punishment due to a change in the situation is decided by the court simultaneously with the pronouncement of the sentence and is not subject to consideration at the stage of execution of the sentence.
Release from punishment on the grounds under consideration does not constitute rehabilitation of the perpetrator. A person who has committed a crime and is found guilty of committing it by a court conviction is exempt from punishment. Release from punishment is carried out in connection with subsequent changes in the situation, which led to the above-mentioned loss of the sign of public danger.
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Normative base
—
80.1 of the Criminal Code
exemption due to change in situation
— clause 3
Plenum No. 3 exemption from punishment due to changes in the situation
- P.
Plenum No. 48 on economic affairs discusses the possibility of applying
Article 80.1 of the Criminal Code
- clause.
Plenum No. 10, a change in the category of crime affects the possibility of applying
80.1 of the Criminal Code.
Conditions for release from punishment due to a change in the situation ( 80.1 of the Criminal Code
)
| I). First time perfect | The crime must be committed for the first time Url Additional information: — 80.1 CC termination condition, crime committed for the first time — clause 2 Plenum No. 19 who is considered to have committed the first - first condition: termination of the case is possible only in relation to first-time offenders crime ( Url Additional information: - - please note if the culprit was prosecuted, but his criminal record was expunged , then he is also recognized as having committed it for the first time ( |
| II). Light to moderate | The crime category must be no higher than average Url Additional information: — 80.1 CC termination condition, minor or moderate crime - second condition: termination of the case is possible only for minor or - it is impossible to terminate the case due to serious and |
| III). Loss of danger | Url Additional information: — 80.1 CC termination condition, a person (or act) has ceased to be dangerous - third condition: loss of public danger ( 80.1 of the Criminal Code ), there are 2 options: The person has lost his social danger Url Additional information: — clause 4 Plenum No. 19 a person must cease to be socially dangerous - the first option for loss of public danger: the perpetrator has lost public danger, the interpretation of this term is given in paragraph 4 Plenum No. 19 (it talks about another mechanism, the termination of the case due to active repentance, but can be used by analogy): A) the loss of public danger is evidenced by the behavior of a person after the commission of a crime: this usually means actions in the interests of the victim (apologizing, compensating for damage). b) the loss of public danger is evidenced by personal data (health, marital status). Examples: marriage during the investigation of a case, or the birth of a child, or getting a job - can be used as an argument about changed personal data, indicating the loss of a person’s social danger. The act has ceased to be a public danger - the second option for the loss of social danger: the act has ceased to be socially dangerous, examples: — illegal hunting in the reserve, but then allowed due to the large number of animals. - the accused was charged with evading military service, but he had legal grounds for a deferment from conscription (his second child was born, he was enrolling in a university). |
Termination procedure
Practice
- although from norm 80.1 of the Criminal Code
it follows that if all 3 conditions are present, the court is obliged (and not entitled) to terminate the criminal case, but in practice everything depends on the interpretation of the term “change” of the situation, that is, this is a very vague concept.
- in Article 80.1 of the Criminal Code
We are not talking about the termination of a criminal case, but about release from punishment.
a guilty verdict is passed against him
.
Url Additional information:
— clause 3, part 5 302 of the Code of Criminal Procedure
the verdict can be passed without imposing punishment
- and only after this (in the verdict itself, or by a separate resolution) the person is released from the assigned punishment.
Illustration
— illustration of the application of Article 80.1 of the Criminal Code
is given in
paragraph 3
of Plenum No. 3 “In cases where the grounds provided for by law, in the presence of which citizens are not conscripted for military service, arose during the period of evasion of conscription for military service (for example, in the case of the birth of a citizen’s second child or the admission of a person to military service) state educational institution of higher professional education and full-time training), the court releases the person from punishment due to a change in the situation if the conditions provided for in
80.1 of the Criminal Code
.”
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Conditions for release from punishment due to changes in the situation
To be released from punishment due to a change in situation, the law requires the presence of two conditions:
- committing a crime of minor or moderate gravity (for categories of crimes, see Article 15 of the Criminal Code of the Russian Federation);
- the crime must be committed for the first time (in which cases a person is considered to have committed a crime for the first time, see paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 19).
If a person is simultaneously convicted of committing a crime of minor and medium gravity, several crimes of minor gravity or several crimes of medium gravity, for none of which he was convicted, it should be recognized that he has committed a crime for the first time and, if this person has ceased to be socially dangerous or the crime has lost its social danger, such a person should be released from punishment due to a change in the situation.
Does the court have the right or obligation to release from punishment?
An analysis of the wording of articles of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, which provide for exemption from liability and punishment, allows us to conclude that the application of Art. 80.1 of the Criminal Code of the Russian Federation is the duty of the court. There is no “may” or “may” in this provision, as there is in some other articles. However, not everything is so simple.
The main problem of the unconditional application by the courts of Art. 80.1 of the Criminal Code of the Russian Federation – the need for all conditions to be present. As we have already noted, a change in the situation with the loss of the accused or an act of public danger is an evaluative criterion that the court can evaluate in different ways. In Russia there is no case law that allows judicial practice to be applied to all similar or similar cases. Just as there are no absolutely identical crimes and accused. In general, almost everything in this matter is at the discretion of the court. And, of course, a lot depends on how convincing the defense will be. The position of the injured party should also be taken into account. Her opinion often becomes decisive, so it is best to prudently make amends for the harm caused and enlist, if not support, then at least the tacit consent of the victim.
Grounds for exemption from punishment due to changes in the situation
The basis for the application of Art. 80.1 of the Criminal Code of the Russian Federation states that it is inappropriate to impose punishment on a person in a changed situation, in which the person or the crime he committed has ceased to be socially dangerous.
Thus, Article 80.1 of the Criminal Code of the Russian Federation provides for two similar in content and meaning, but at the same time independent grounds for exemption from punishment:
- loss of public danger to the personality of the criminal;
- loss of public danger of the act itself.
The indicated grounds may occur in combination, but one of them may also be present, which does not affect the decision on the existence of grounds for exemption from punishment due to a change in the situation.
Loss of public danger to the identity of the criminal
The loss of public danger by a person who has committed a crime is associated with the emergence of objective circumstances indicating the absence of danger of such a person. Such circumstances should include changes related solely to the personality characteristics of the perpetrator and the degree of his danger in connection with the crime he committed.
When the criminal’s personality is no longer a public danger, the change in the situation concerns the conditions of his life and activities after the commission of the crime. These changes may consist, for example, in the dismissal of the culprit from a position that he used for criminal purposes; in breaking ties with the criminal environment; in recovery from alcoholism or drug addiction; in admission to an educational institution; in conscription for military service; at the birth of a child; in exemplary behavior over a long period of time, etc.
The loss of social danger to the personality of the criminal can be evidenced, for example, by the marriage of the perpetrator to the victim of his crime, the deterioration of his health: for example, if during the commission of the crime the person was physically healthy, and then suffered a serious injury and was bedridden, then the court may decide that this person does not pose a public danger and release him from punishment.
Loss of public danger of the act itself
An act is recognized as having lost its social danger when the conditions that determine the danger of this act no longer exist in society, i.e. there are objective events that influenced the degree of public danger of the crime.
Example 1. Illegal hunting on the territory of the reserve (Clause “d”, Part 1, Article 258 of the Criminal Code of the Russian Federation), being a socially dangerous act, is considered a crime. If, after its commission, the place where the guilty person was hunting ceased to be considered a reserve, the conditions under which illegal hunting is considered precisely as a crime, and not an administrative tort, no longer exist. The same applies to illegal hunting in a nature reserve, if by the time the case is considered in court it will be allowed there due to an excessive increase in the number of this species of animal.
Example 2. “In cases where the grounds provided for by law, in the presence of which citizens are not called up for military service, arose during the period of evasion of conscription for military service (for example, in the case of the birth of a citizen’s second child or the admission of a person to a state educational institution of higher professional full-time education and training), the court releases the person from punishment due to a change in the situation in the presence of the conditions provided for in Article 80.1 of the Criminal Code of the Russian Federation" (clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/03/2008 N 3 "On the practice of considering criminal cases by courts cases of evasion of conscription for military service and military or alternative civil service").
Example 3. A person engaged in private medical practice, during the period of obtaining a license for the chosen type of activity, through negligence caused harm to the patient’s health and was prosecuted under Part 1 of Art. 235 of the Criminal Code of the Russian Federation. At the time the case was considered in court, the license was obtained, and the person prosecuted began to have the legal right to engage in private medical practice. In this case, it can be recognized that the above-mentioned act has ceased to be socially dangerous, and harm caused by negligence can be compensated through civil proceedings (or voluntarily). At the time the harm was caused, the act was criminal. However, in the case under consideration, the court may decide to release the person from punishment due to the fact that the situation has changed, and the act itself and the person who committed it have ceased to be socially dangerous.
Deferment of serving sentences for pregnant women and women with young children
In Part 1 of Art. 82 of the Criminal Code of the Russian Federation provides that pregnant women and women with children under the age of fourteen, except those sentenced to restriction of freedom, are sentenced to imprisonment for crimes against the sexual integrity of minors under the age of fourteen, sentenced to imprisonment for a term of over five years For grave and especially grave crimes against a person, the court may defer the actual serving of the sentence until the child reaches the age of fourteen.
The basis for the use of this institution is the inappropriateness of serving sentences for pregnant women (regardless of the stage of pregnancy) and women with children under the age of fourteen (including adopted children). The physiological state of a woman during pregnancy, childbirth, and raising a child affects her psyche, health and can make it difficult for her to reform, and the imposed punishment when convicted of a crime may not achieve its goal. This provision does not apply to a man, who may, in certain cases, be entitled, as a father, to the same benefits as a mother.
The release from punishment of convicted pregnant women and women with children under the age of fourteen is conditional and not final. Providing a woman with a deferment of serving a sentence for the court is optional, i.e., it is a right and not an obligation of the court.
The deferment applies to women, except for those sentenced to imprisonment for a term of over five years for grave and especially grave crimes against the person, which should include not only the acts listed in the seventh section of the Criminal Code of the Russian Federation, but also those provided for in other sections, if in the dispositions of the norms crimes are described that are classified as grave or especially grave, and are associated with attacks on life or health (in particular, Articles 277, 295, 317, etc.).
Part 2 Art. 82 of the Criminal Code of the Russian Federation provides for two grounds for canceling the deferment and the possibility of the court, upon appropriate motion, to cancel the deferment of serving the sentence and send the convicted woman to serve the sentence to the place appointed in accordance with the court verdict:
- if the convicted woman has abandoned the child, this must be documented in writing at the medical institution, signed by the woman and certified by the institution;
- if she continues to evade raising the child after a warning announced by the body exercising control over the behavior of the convicted person, i.e., without officially abandoning the child, she left him in a maternity hospital or transferred him to an orphanage, to other persons, leads an antisocial lifestyle and does not engage in raising a child, caring for him, went into hiding, or commits other actions indicating evasion from raising a child.
In cases where the conditions on the basis of which the deferment was applied have disappeared, in particular in the event of termination of pregnancy, the birth of a stillbirth, or the death of a child, the issue of canceling the deferment must be resolved.
In accordance with Part 3 of Art. 82 of the Criminal Code of the Russian Federation, when a child reaches the age of fourteen, the court may make one of the following decisions:
- releases the convicted person from serving the remainder of the sentence with the criminal record expunged;
- replaces the remainder of the punishment with a more lenient punishment.
The basis for the complete release of a convicted person from serving the remainder of her sentence is her correction, when it is concluded that the convicted person will not commit a new crime. To replace the remaining part of the punishment with a more lenient type of punishment, this is not required; it is enough to establish that the process of correction has begun and the convicted person can be corrected with a more lenient punishment than the one imposed by the court.
If before the child reaches the age of fourteen, a period equal to the term of the sentence, the serving of which was suspended, has expired, and the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence has been suspended, has come to the conclusion that the convicted person has complied with the conditions of the deferment and has corrected him, the court, upon the recommendation of this The authority may decide to shorten the period of deferred serving of the sentence and to release the convicted person from serving the sentence or the remaining part of the sentence with the criminal record expunged.
If, during the period of deferment of serving the sentence, the convicted person specified in part one of this article commits a new crime, the court imposes a punishment on him according to the rules provided for in Art. 70 of the Criminal Code of the Russian Federation.
Unconditionality of release from punishment due to changes in circumstances
Release from punishment due to a change in the situation is one of the mandatory and unconditional grounds for release from punishment. Article 80.1 of the Criminal Code of the Russian Federation obliges the court, if one of the two grounds provided for in this norm is established, to release the person who committed the crime from such negative consequences of his act as imposition of punishment, execution of punishment and criminal record. The unconditional nature of the commented grounds for exemption from punishment lies in the fact that the decision taken by the court to apply Art. 80.1 of the Criminal Code of the Russian Federation is final, is not accompanied by the establishment of any requirements for the subject who committed the crime, and is not made dependent on his subsequent behavior.
Exemption from punishment on the grounds provided for in Art. 80.1 of the Criminal Code of the Russian Federation, is carried out by the court in the form of a verdict of guilty without imposing punishment (clause 3, part 5, article 302 of the Criminal Procedure Code of the Russian Federation).
Change in the situation with the loss of the accused or an act of public danger
The law provides two options for changing the situation:
- One that led to the loss of public danger by the person who committed the crime.
- One that led to the crime losing its danger to society.
To be released from punishment, any of the options is sufficient.
The first option concerns changes in the life of the accused after the crime. However, such changes are not specified by law, therefore, in principle, they can be anything. An important condition is that circumstances must change in such a way that the person ceases to be dangerous to society. In this regard, we have to turn to investigative (before December 2003) and judicial practice.
As a rule, the following are recognized as sufficient circumstances for exemption from punishment:
- Changes in social status (for example, joining the army, getting a job, entering an educational institution, giving birth to a child, serious illness of a child or other family member and the need for constant care).
- Marriage with the victim(s).
- Severe illness or serious deterioration in health.
Often changes in the life of the accused are assessed in the context of the crime committed, despite the fact that this is more suitable for analyzing the second option of release from punishment. For example, dismissal from work can also be recognized as a change in the situation if the crime was committed in connection with such work (position, type of activity). Quite often, adults who had sexual relations with persons under 16 years of age (Part 1 of Article 134 of the Criminal Code of the Russian Federation) and subsequently married them are exempt from punishment.
The second option for exemption from punishment provides for the loss of public danger by the act (crime). There is a wider range of possible circumstances, but at the same time everything is more individual in relation to a specific crime.
Some examples from judicial practice that demonstrate the general approach to the application of Art. 80.1 of the Criminal Code of the Russian Federation:
- permission to hunt, which at the time the crime was committed was illegal;
- the emergence of a legal basis for a deferment from conscription after a person has evaded military duty for some time.
As can be seen from the examples, in order to apply the second option, it is very important what kind of crime was committed and why it can no longer be considered as socially dangerous as before. In the case of a person losing public danger, it is not so important what kind of act we are talking about.
Judicial practice develops in such a way that the burden of proving the existence of grounds for exemption from punishment falls on the defense - the accused and his lawyer. Therefore, you need to prepare your position very carefully and, most importantly, justify it well.
