The abolition of additional punishment in a criminal case worries many. Our clients are interested: why, when the courts impose punishment, they apply several types of punishment to the same committed act, because for the same crime or offense one cannot be punished twice, since this is guaranteed by the provisions of the Constitution of the Russian Federation.
In this article you will find the answer to the question of how to remove an additional punishment, whether its early cancellation is possible and why such punishments are imposed for certain acts. Our criminal lawyer will help you protect your rights.
What is additional punishment in criminal law?
Additional penalties may be imposed by the courts due to the fact that this is provided for by the relevant types of criminal and administrative legislation. However, the same type of punishment cannot be assigned both as the main and as an additional one. At the same time, the imposition of an additional punishment in a specific case is necessarily accompanied by appropriate motivation in each specific case and in each specific judicial act.
The criminal law in Russia identifies several types of punishments that can be imposed both as additional and basic ones.
Types of additional punishments
So, the following can be used as additional types of punishment in criminal proceedings:
- fine;
- restriction of freedom;
- deprivation of the right to hold certain positions;
- deprivation of the right to engage in certain activities;
- deprivation of a special rank;
- deprivation of military rank;
- deprivation of an honorary title;
- deprivation of class rank;
- deprivation of state awards.
Next, you will find out whether it is possible to get rid of the above penalties and in what ways this can be done.
Purposes of criminal punishment
The discussions on the purpose of punishment by the Russian philosopher V. Solovyov remain instructive today. Considering punishment as a multifaceted concept, he noted that its various aspects should equally be determined by the general moral principle of philanthropy, which embraces both the offended and the offender. The victim of a crime has the right to protection and, if possible, reward; society has the right to safety; the offender has the right to admonition and correction[129].
Correct definition of the goal is the most important condition for ensuring the effectiveness of legal regulation. To establish the effectiveness of punishment, it is necessary first of all to resolve the question of what goals punishment pursues in society. “Until,” noted N. Wiener, “until society establishes what it really wants: redemption, isolation, education or intimidation of potential criminals, we will have neither redemption, nor education, nor intimidation, but only confusion , where one crime gives rise to another”[130].
The goals of punishment in criminal law are those final actual results that the state seeks to achieve by establishing criminal liability, convicting the perpetrator of a crime to a certain type and amount of punishment and implementing this measure of criminal law.
In the Criminal Code of the Russian Federation of 1996, the purposes of punishment are defined in Part 2 of Art. 43 of the Criminal Code. It is this norm that gives grounds to attribute the current criminal law of Russia to the so-called neoclassical direction, since when assigning punishment, both the severity of the crime committed and the personality of the perpetrator, his behavior before and after the commission of the crime are taken into account.
The current Criminal Code identifies three goals (Part 2 of Article 43 of the Criminal Code):
· restoration of social justice;
· correction of the convicted person;
· prevention of new crimes.
“Restoring social justice as the goal of punishment,” I.Ya rightly notes. Kozachenko, “should be understood not only and not so much in the framework of compensation for property or moral damage caused to the person offended by the crime (otherwise we can only talk about restoring personal justice for the victim of the crime), but in the parameters of restoring public justice”[131].
Restoring social justice involves
— compensation for property damage or moral harm from a crime;
- determination of punishment commensurate with the gravity of the crime, the circumstances of its commission and the identity of the perpetrator.
Correction of a convicted person involves a process of educational influence on the convicted person by the authorities executing this or that punishment, and is aimed at instilling in the convicted person respect for the laws, the rules of human society, and adaptation to normal living conditions in society.
Crime prevention includes:
— special prevention, that is, preventing these convicts from committing new crimes. Achieved through the use of various educational measures by state bodies executing the punishment applied to him;
- general prevention - preventing other persons from committing crimes. It consists of a psychological impact on unstable citizens by punishing the guilty, the inevitability of responsibility for the crime committed, and the threat of punishment. According to I.Ya. Kozachenko, it is inappropriate to set the goal of general prevention before criminal punishment, because due to its utopian nature, it has never had really visible social and legal outlines. If punitive regulators other than criminal punishment could not deter someone from committing a crime, then punishment in its ugly forms of execution can hardly fulfill the role of a social bogeyman restraining the criminal impulse of individual citizens[132].
Speaking about the goal of preventing the commission of crimes, it is wrong to say that the main means of combating crime is criminal punishment. “A state seeking to strengthen its internal anti-criminal power only (or primarily) through the constant strengthening of criminal repression is doomed. In this case, the innocent aphorism that if there were no laws, there would be no crimes takes on an ominous connotation.”[133] At the same time, the punishment imposed by the court interrupts the criminal activity of individuals and affects a certain part of people who, under pain of criminal punishment, do not commit criminal acts.
In the broadest sense, the purpose of punishment is to prevent the commission of socially dangerous acts. This goal is guided by:
- legislator, establishing what acts to punish and how;
- the judge, assigning a specific type and amount of punishment;
- bodies that carry out punishment.
Professor V.N. Kudryavtsev emphasizes that the greater the preventive value of punishment, the higher the inevitability of responsibility, the faster the punishment follows the crime, the stronger the punishment infringes on the interests of the criminal and his loved ones, the higher the level of moral consciousness of the individual, the more just the punishment looks in the eyes of the perpetrator and in public opinion[134] .
The content of the purposes of punishment is the lawful behavior of citizens and compliance with the established law and order. Moral improvement of the individual is not proclaimed as the purpose of punishment.
The law directs punishment to achieve goals, but cannot fully guarantee their achievement. According to experts, the effectiveness of punishment is on average 50%. The effectiveness of punishment, according to A.E. Natashev, can be defined as the actual implementation (degree of achievement) of the goals of punishment as a result of the impact on public consciousness and on the convicted person. Measuring the effectiveness of punishment and its types in its pure form, that is, without the influence of punitive judicial practice, the effectiveness of penal correction and post-penitentiary adaptation and resocialization of punished persons is virtually impossible. The most average and conditional indicator of the effectiveness of punishment is the proportion, dynamics and structure of criminal recidivism. For the effectiveness of general prevention, this is the dynamics of all crime as a whole, the dynamics of individual types of crimes, the dynamics of juvenile crime, etc. The effectiveness of special prevention is determined by the level and structure of criminal recidivism, the types of highest and lowest recidivism of various categories of crimes and punishments.
Topic 15. SYSTEM AND TYPES OF PUNISHMENTS
1. The concept and meaning of the punishment system.
2. Types of punishments and their classification.
3. Punishments not related to restriction or imprisonment.
4. Punishments related to restriction or imprisonment.
5. Assignment of a type of correctional institution to those sentenced to imprisonment.
The discussions on the purpose of punishment by the Russian philosopher V. Solovyov remain instructive today. Considering punishment as a multifaceted concept, he noted that its various aspects should equally be determined by the general moral principle of philanthropy, which embraces both the offended and the offender. The victim of a crime has the right to protection and, if possible, reward; society has the right to safety; the offender has the right to admonition and correction[129].
Correct definition of the goal is the most important condition for ensuring the effectiveness of legal regulation. To establish the effectiveness of punishment, it is necessary first of all to resolve the question of what goals punishment pursues in society. “Until,” noted N. Wiener, “until society establishes what it really wants: redemption, isolation, education or intimidation of potential criminals, we will have neither redemption, nor education, nor intimidation, but only confusion , where one crime gives rise to another”[130].
The goals of punishment in criminal law are those final actual results that the state seeks to achieve by establishing criminal liability, convicting the perpetrator of a crime to a certain type and amount of punishment and implementing this measure of criminal law.
In the Criminal Code of the Russian Federation of 1996, the purposes of punishment are defined in Part 2 of Art. 43 of the Criminal Code. It is this norm that gives grounds to attribute the current criminal law of Russia to the so-called neoclassical direction, since when assigning punishment, both the severity of the crime committed and the personality of the perpetrator, his behavior before and after the commission of the crime are taken into account.
The current Criminal Code identifies three goals (Part 2 of Article 43 of the Criminal Code):
· restoration of social justice;
· correction of the convicted person;
· prevention of new crimes.
“Restoring social justice as the goal of punishment,” I.Ya rightly notes. Kozachenko, “should be understood not only and not so much in the framework of compensation for property or moral damage caused to the person offended by the crime (otherwise we can only talk about restoring personal justice for the victim of the crime), but in the parameters of restoring public justice”[131].
Restoring social justice involves
— compensation for property damage or moral harm from a crime;
- determination of punishment commensurate with the gravity of the crime, the circumstances of its commission and the identity of the perpetrator.
Correction of a convicted person involves a process of educational influence on the convicted person by the authorities executing this or that punishment, and is aimed at instilling in the convicted person respect for the laws, the rules of human society, and adaptation to normal living conditions in society.
Crime prevention includes:
— special prevention, that is, preventing these convicts from committing new crimes. Achieved through the use of various educational measures by state bodies executing the punishment applied to him;
- general prevention - preventing other persons from committing crimes. It consists of a psychological impact on unstable citizens by punishing the guilty, the inevitability of responsibility for the crime committed, and the threat of punishment. According to I.Ya. Kozachenko, it is inappropriate to set the goal of general prevention before criminal punishment, because due to its utopian nature, it has never had really visible social and legal outlines. If punitive regulators other than criminal punishment could not deter someone from committing a crime, then punishment in its ugly forms of execution can hardly fulfill the role of a social bogeyman restraining the criminal impulse of individual citizens[132].
Speaking about the goal of preventing the commission of crimes, it is wrong to say that the main means of combating crime is criminal punishment. “A state seeking to strengthen its internal anti-criminal power only (or primarily) through the constant strengthening of criminal repression is doomed. In this case, the innocent aphorism that if there were no laws, there would be no crimes takes on an ominous connotation.”[133] At the same time, the punishment imposed by the court interrupts the criminal activity of individuals and affects a certain part of people who, under pain of criminal punishment, do not commit criminal acts.
In the broadest sense, the purpose of punishment is to prevent the commission of socially dangerous acts. This goal is guided by:
- legislator, establishing what acts to punish and how;
- the judge, assigning a specific type and amount of punishment;
- bodies that carry out punishment.
Professor V.N. Kudryavtsev emphasizes that the greater the preventive value of punishment, the higher the inevitability of responsibility, the faster the punishment follows the crime, the stronger the punishment infringes on the interests of the criminal and his loved ones, the higher the level of moral consciousness of the individual, the more just the punishment looks in the eyes of the perpetrator and in public opinion[134] .
The content of the purposes of punishment is the lawful behavior of citizens and compliance with the established law and order. Moral improvement of the individual is not proclaimed as the purpose of punishment.
The law directs punishment to achieve goals, but cannot fully guarantee their achievement. According to experts, the effectiveness of punishment is on average 50%. The effectiveness of punishment, according to A.E. Natashev, can be defined as the actual implementation (degree of achievement) of the goals of punishment as a result of the impact on public consciousness and on the convicted person. Measuring the effectiveness of punishment and its types in its pure form, that is, without the influence of punitive judicial practice, the effectiveness of penal correction and post-penitentiary adaptation and resocialization of punished persons is virtually impossible. The most average and conditional indicator of the effectiveness of punishment is the proportion, dynamics and structure of criminal recidivism. For the effectiveness of general prevention, this is the dynamics of all crime as a whole, the dynamics of individual types of crimes, the dynamics of juvenile crime, etc. The effectiveness of special prevention is determined by the level and structure of criminal recidivism, the types of highest and lowest recidivism of various categories of crimes and punishments.
Topic 15. SYSTEM AND TYPES OF PUNISHMENTS
1. The concept and meaning of the punishment system.
2. Types of punishments and their classification.
3. Punishments not related to restriction or imprisonment.
4. Punishments related to restriction or imprisonment.
5. Assignment of a type of correctional institution to those sentenced to imprisonment.
Ways of exemption from additional punishments
There are several ways for the court to release a person from additional punishment in whole or in part.
Firstly, through the preparation and submission of an appropriate appeal to the court with a request to cancel or change the sentence in whole or in part.
Secondly, through drawing up and filing a cassation appeal with similar demands against a court verdict that has already entered into force. And thirdly, through drawing up and submitting to the court a petition for parole with a request for release from additional punishment.
If a person has expressed a desire to apply to the court for release from additional punishment, then his (her) complaint or petition must contain the following details:
- name of the judicial authority;
- FULL NAME. the applicant, information about his (her) place of residence or stay;
- name of the application
- reference to the sentence, resolution or other judicial act that imposed additional punishment, as well as the case number;
- regulatory justification of your requirements;
- attachments to the document and signature of the applicant or the applicant’s representative;
All of the above information must be provided in strict accordance with the norms of criminal procedure legislation. Next, the court that made the decision makes, in the case of a complaint, a ruling on satisfying or refusing to satisfy the applicant’s demands, or in the case of a petition, a ruling on satisfying or refusing to satisfy the applicant’s demands. At the same time, it must be remembered that early release from additional punishment is possible subject to the replacement of the main punishment with a more lenient one.
Features of exemption from additional punishments
It should be remembered that exemption from additional punishment in the form of deprivation of a special rank, military rank, honorary title, class rank, state award is possible only through filing an appropriate complaint. Moreover, if the additional punishment was partially executed: for example, the fine was not collected in full, and the period of prohibition from holding certain positions or engaging in certain activities has already begun to run, the court may exempt from this type of punishment on a cassation appeal or on a petition for probation. - early release of a convicted person.
You can be released from the restriction of freedom for the remaining period either by cassation appeal or by the presentation of the penal inspection; for this, the convicted person must contact the head of the relevant penitentiary institution.
If the additional punishment was not carried out at all - the period of restriction of freedom, the ban on holding certain positions or the period of engaging in certain activities has not begun to run, the fine has not been paid, and the deprivation of a special rank, military rank, honorary title, class rank, state award has not yet been carried out – then, upon the complaint of the person brought to criminal liability, the court may release this person from such punishment in full.
From the above, we can conclude that full or partial release from additional punishment is possible only in four cases: an appeal or cassation complaint by a person or his defense attorney against a court verdict, on a petition for conditional early release from an additional punishment, or on the presentation of a criminal justice. executive inspection. In such situations, most people do not know what to do or who to turn to for help. Remember that even if several types of punishments have been imposed on a person, they can be challenged or canceled ahead of schedule. Come and we will figure out what to do in your situation: individually, professionally and on favorable payment terms.
Criminal Executive Code of the Russian Federation:
Article 16. Institutions and bodies executing punishments
1. Punishment in the form of a fine is carried out by bailiffs at the place of residence (work) of the convicted person.
2. Punishment in the form of deprivation of the right to hold certain positions or engage in certain activities is carried out by the penal inspection at the place of residence (work) of the convicted person, by a correctional institution or by a disciplinary military unit. The requirements of a sentence on deprivation of the right to hold certain positions or engage in certain activities are fulfilled by the administration of the organization in which the convicted person works, as well as by bodies authorized in accordance with the law to revoke permission to engage in the relevant activity.
3. Punishment in the form of deprivation of a special, military or honorary title, class rank and state awards is carried out by the court that passed the sentence. The requirements of the sentence for the deprivation of a special, military or honorary title, class rank and state awards are fulfilled by the official who conferred the title, class rank or awarded the state award, or by the relevant bodies of the Russian Federation.
4. Punishment in the form of compulsory labor is carried out by the penal inspection at the place of residence of the convicted person.
5. Punishment in the form of correctional labor is carried out by the penal inspection.
6. Lost power. — Federal Law of December 8, 2003 N 161-FZ.
7. Punishment in the form of restriction of freedom is carried out by the penal inspection at the place of residence of the convicted person.
7.1. Punishment in the form of forced labor is carried out by a correctional center.
8. The punishment of arrest is carried out by the arrest house.
9. Punishment in the form of imprisonment is carried out by a colony-settlement, educational colony, medical correctional institution, correctional colony of general, strict or special regime or prison, and in relation to the persons specified in Article 77 of this Code, by a pre-trial detention center.
10. Punishment in the form of life imprisonment is carried out by a special regime correctional colony for convicts serving life imprisonment.
11. The death penalty is carried out by institutions of the penal system.
12. In relation to military personnel, punishments are carried out by the military police of the Armed Forces of the Russian Federation: detention in a disciplinary military unit - in disciplinary military units specially designed for this purpose; arrest - in guardhouses. The restriction on military service is enforced by the command of the military units in which the military personnel serve (hereinafter referred to as the command of the military units).
13. Conditionally convicted persons are under the control of penal inspections, which also monitor the application of compulsory medical measures prescribed in accordance with part two.1 of Article 102 of the Criminal Code of the Russian Federation. Control over suspended sentenced military personnel is carried out by the command of military units.
14. The institutions specified in parts four, five, seven, seven.1, eight, nine and ten of this article are institutions of the penal system.
Return to the table of contents of the document: Criminal Executive Code of the Russian Federation in the current edition
