General principles of sentencing

The general principles of sentencing are the fundamental rules (requirements, criteria) established by criminal law that the court must follow when imposing punishment.

In accordance with the general principles of sentencing (Part 1 of Article 60 of the Criminal Code of the Russian Federation), a more severe type of punishment from among those provided for the crime committed is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment.

In the event that a convicted person, by virtue of the provisions established by law, cannot be assigned any of the types of punishment provided for in the relevant article of the Special Part of the Criminal Code of the Russian Federation (for example, compulsory labor - by virtue of Part 4 of Article 49 of the Criminal Code of the Russian Federation, corrective labor - in by virtue of Part 5 of Article 50 of the Criminal Code of the Russian Federation, forced labor and arrest - due to their non-application at present, imprisonment - by virtue of Part 1 of Article 56 of the Criminal Code of the Russian Federation), he is given a more lenient punishment than provided for by the sanction of the corresponding article .

By virtue of Part 3 of Art. 60 of the Criminal Code of the Russian Federation, when assigning punishment, the courts, along with the nature and degree of public danger of the crime, data on the identity of the perpetrator, mitigating and aggravating circumstances, also take into account the impact of the imposed punishment on the correction of the convicted person and the living conditions of his family (for example, the possible loss of funds by family members of the convicted person existence due to age, health status), and actual family relationships can also be taken into account.

Commentary to Art. 45 Criminal Code

1. The main types of punishments can be imposed by the court only as independent ones and cannot be added to other punishments. This or that main type of punishment can be imposed by the court only if it is directly enshrined in the sanction of the applicable article of the Special Part of the Criminal Code. An exception to this rule is Art. 64 of the Criminal Code, according to which, in the presence of exceptional mitigating circumstances, the court may impose a more lenient punishment than provided for the crime.

2. Additional types of punishment cannot be imposed by the court independently; they are added to the main punishment, thus increasing the scope of legal restrictions. The court may deprive a person of a special, military or honorary title, class rank and state awards if there is such a need for a serious or especially serious crime.

Circumstances mitigating and aggravating punishment

The following are recognized as mitigating circumstances:

a) committing a crime of minor or medium gravity for the first time due to a random combination of circumstances;

b) the minority of the perpetrator;

c) pregnancy;

d) the presence of young children with the perpetrator;

e) committing a crime due to a combination of difficult life circumstances or out of compassion;

f) committing a crime as a result of physical or mental coercion or due to financial, official or other dependence;

g) commission of a crime in violation of the conditions of legality of necessary defense, detention of the person who committed the crime, extreme necessity, justified risk, execution of an order or instruction;

h) illegality or immorality of the behavior of the victim, which was the reason for the crime;

i) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime;

j) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused to the victim.

The list of mitigating circumstances is not exhaustive, and when imposing a punishment, other circumstances not specified in Part 1 of Art. 61 CC.

When assigning a punishment, circumstances not provided for in the first part of this article may be taken into account as mitigating factors.

The following are considered aggravating circumstances:

a) relapse of crimes;

b) the onset of grave consequences as a result of the commission of a crime;

c) committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization);

d) a particularly active role in the commission of a crime;

e) involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins;

f) committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group;

f.1) committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission;

g) commission of a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty;

h) committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person or a person dependent on the perpetrator;

i) committing a crime with particular cruelty, sadism, mockery, and torture for the victim;

j) committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, narcotic drugs, psychotropic, potent, poisonous and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion;

k) committing a crime during a state of emergency, natural or other public disaster, as well as during mass riots, in conditions of armed conflict or military action;

l) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;

m) committing a crime using the uniform or documents of a government representative;

o) commission of a deliberate crime by an employee of an internal affairs body;

o) commission of a crime against a minor (minor) by a parent or other person who is charged by law with the responsibility for raising the minor (minor), as well as by a teacher or other employee of an educational organization, medical organization, organization providing social services, or other organization, obligated to supervise the minor (minor);

p) committing a crime for the purpose of promoting, justifying and supporting terrorism.

Code on criminal and correctional punishments 1845

The Code on Criminal and Correctional Punishments was a big step forward in the development of criminal legislation of the Russian Empire. However, he still carried a large burden of feudal principles and prejudices.

According to the Code of Criminal and Correctional Punishments of 1845, a crime is defined as an unlawful guilty act. This definition does not establish a clear distinction between a crime and a misdemeanor.

The Code of Criminal and Correctional Punishments of 1845 defines the forms of guilt and the conditions for exemption from criminal liability (such as minority, mental illness, etc.).

According to the Code of 1845, the grounds eliminating imputation were: accident; early childhood (up to 10 years of age imputation was excluded, from 10 to 12 it was conditional); madness; madness; unconsciousness; error (accidental or the result of deception); compulsion; irresistible force; necessary defense.

The subjective side was divided into:

1) intent : with premeditated intention; with sudden impulse, unpremeditated;

2) negligence , in which the consequences of the act could not be easily foreseen; the harmful consequences could not be foreseen at all.

The Code distinguished between complicity in a crime : by prior agreement of the participants; without prior agreement. Accomplices were divided into: instigators, accomplices, instigators, instigators, accomplices, connivers, concealers.

The crime system included twelve sections, each of which was divided into chapters and sections. The most important were crimes against faith, state, against the order of government, official, property, against deanery, laws on wealth, against life, health, freedom and honor of individuals, family and property.

Classification of crimes (according to the Code of Criminal and Correctional Punishments of 1845):

1) religious (about 80 types): blasphemy, seducing an Orthodox Christian into another faith, etc.;

2) state (about 20 types): high treason, rebellion, attempt on the life of the emperor, etc.;

3) crimes against management order: disobedience to superiors, etc.;

4) malfeasance: bribery, being late for work, etc.;

5) crimes against the person: murder, etc.;

6) crimes against property: robbery, robbery, etc.

The punishment system consisted of a complex hierarchy of criminal and correctional punishments. The Code provided for 11 types of punishment, divided into 35 stages (from the death penalty to indoctrination).

Punishments (according to the Code of Criminal and Correctional Punishments 1845):

1) criminal , which were accompanied by the deprivation of all rights of the state: the death penalty (appointed only for political crimes); hard labor (from 5 years to life) followed by settlement in Siberia; lifelong exile to Siberia; exile to the Caucasus (assigned for religious crimes, not assigned to the military);

2) correctional , which were accompanied by the deprivation of only some rights of the state: corporal punishment (for example, whipping, branding); exile to Siberia for a certain period of time; short-term imprisonment, which could be implemented either in a fortress or in a prison); fine; short-term arrest; rebuke.

45. Legal status of Poland within the Russian Empire. Ukrainian autonomy in the 17th–18th centuries

Polish and Lithuanian lands became part of Russia as a result of the third partition of Poland in 1795. Following the results of the Congress of Vienna in 1815, during the period when most of the Grand Duchy of Warsaw was again annexed to Russia, Alexander I granted Poland, which received the status of a kingdom, a Constitutional Charter. The Russian Emperor became the Polish King at the same time. Since 1818 Sejm began to be elected by the gentry and townspeople . It was convened in 1820, and in 1825 the Executive power was concentrated in the hands of the Tsar's viceroy, with the State Council acting as an advisory body.

In Poland, local law was preserved, even the army, budget and other attributes of statehood. For example, Poland, as before, was divided into voivodeships, and not into provinces.

After the Polish uprising of 1830, Nicholas I replaced the Alexander Constitutional Charter of 1815 with the Organic Statute of 1832 , as a result of which the Polish Sejm was abolished , the voivodships were transformed into ordinary Russian provinces, and further elements of Poland's autonomy were gradually abolished, in 1866 the Kingdom The Polish was finally transformed into the Warsaw General Government , although the All-Russian Emperor retained the name of the Tsar of Poland in his official title.

Ukrainian autonomy in the XVII–XVIII centuries. : in 1654, according to the decision of the Zemsky Sobor, Ukraine was annexed to Russia (primarily Left Bank Ukraine, as well as Kyiv). As part of Russia, Ukraine was given a special status: the Ukrainian system of government, headed by a hetman elected by the military (general) council, and Ukrainian law were preserved. Under the hetman there was a general foreman (Ukrainian government). The territory of Ukraine was divided into military-administrative units - regiments. The regiments were headed by elected colonels.

Until 1663, the affairs of governing Ukraine were concentrated in the office for Little Russian affairs of the Ambassadorial Prikaz. Issues of foreign policy of Ukraine were subordinated to the Ambassadorial Order, and the armed forces - to the Discharge Order. From 1663, the affairs of Ukraine began to be managed by the Little Russian Prikaz , which in 1722 was transformed by Peter I into the Little Russian Collegium . After the liquidation of the Little Russian Collegium in 1727, the leadership of Ukraine passed to the Collegium of Foreign Affairs, and from 1750 to the Senate.

The position of the Ukrainian hetman was abolished by Peter I in 1722, then the position of the Ukrainian hetman was restored and abolished again. Elizaveta Petrovna restored it in 1750 in order to reward her favorite brother, K. Razumovsky. Catherine II finally abolished the Ukrainian hetmanate, and she also restored the Little Russian (Ukrainian) Collegium.

In addition, Catherine II liquidated the Ukrainian system of self-government and established the post of Little Russian governor-general, as a result of which Ukraine became almost an ordinary province of the Russian Empire.

The former Ukrainian law existed until the beginning of the 19th century. (it was officially abolished by Nicholas I in 1842). Under Catherine II, as a result of the divisions of Poland, Western (Right Bank) Ukraine became part of Russia, except for Galicia, which belonged to Austria (Austria-Hungary). The Northern Black Sea region (including Crimea) annexed to Russia began to be called Little Russia.

The Code of Criminal and Correctional Punishments of 1845 defines the forms of guilt and the conditions for exemption from criminal liability (such as minority, mental illness, etc.).

The subjective side was divided into:

1) intent : with premeditated intention; with sudden impulse, unpremeditated;

2) negligence , in which the consequences of the act could not be easily foreseen; the harmful consequences could not be foreseen at all.

Classification of crimes (according to the Code of Criminal and Correctional Punishments of 1845):

1) religious (about 80 types): blasphemy, seducing an Orthodox Christian into another faith, etc.;

2) state (about 20 types): high treason, rebellion, attempt on the life of the emperor, etc.;

3) crimes against management order: disobedience to superiors, etc.;

4) malfeasance: bribery, being late for work, etc.;

5) crimes against the person: murder, etc.;

6) crimes against property: robbery, robbery, etc.

Punishments (according to the Code of Criminal and Correctional Punishments 1845):

45. Legal status of Poland within the Russian Empire. Ukrainian autonomy in the 17th–18th centuries

In Poland, local law was preserved, even the army, budget and other attributes of statehood. For example, Poland, as before, was divided into voivodeships, and not into provinces.

Mandatory mitigation of punishment (Articles 62, 64-66 of the Criminal Code)

Mandatory mitigation of punishment is allowed in the following cases provided for in criminal law.

In the presence of mitigating circumstances (Article 62 of the Criminal Code), covering various options for positive post-criminal behavior (active repentance) and provided for in paragraphs “i” and “k” of Part 1 of Art. 61 of the Criminal Code, and also in the absence of aggravating circumstances, the term or amount of punishment cannot exceed three quarters of the maximum term or amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Criminal Code. The above paragraphs provide a list of several circumstances, however, to apply the rules of Art. 62 of the Criminal Code, it is enough to establish the presence of at least one of them.

It should be noted that the rule on the mandatory reduction of the term or amount applies only to the most severe type of punishment from among those provided for by the sanction. Increasingly milder types of punishment may be imposed within the limits established by law for the crime committed.

The presence of exceptional mitigating circumstances justifying the imposition of a more lenient punishment than provided for this crime (Article 64 of the Criminal Code). This type of mitigation of punishment may be due to the presence of one of three types of exceptional ones, i.e. atypical, rather rare mitigating circumstances:

a) circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, which convincingly indicate the need to reduce in this case the standard punishment provided for in the sanction of the article of the Special Part of the Criminal Code;

b) other circumstances that significantly reduce the degree of public danger of the crime, for example, the circumstances provided for in paragraphs “f”, “h”, “i”, “k” of Part 1 of Art. 61 of the Criminal Code, or mitigating circumstances not specified in the law, if the court recognizes them as exceptional;

c) active assistance of a participant in a group crime in solving this crime, which consists of proactively or at the request of law enforcement agencies assisting a person in solving a crime, exposing other accomplices in a crime, searching for property obtained as a result of a crime, tools and means of committing a crime, etc. (clause “ and" Part 1 of Article 61 of the Criminal Code).

The law provides for three forms of emergency mitigation of appointment in the presence of exceptional mitigating circumstances (Article 64 of the Criminal Code):

1) imposing a punishment below the lower limit provided for in the relevant article of the Special Part of the Criminal Code.

Going beyond the lower limits provided for in the sanction, the court does not have the right to impose a punishment below the minimum limit established in the General Part of the Criminal Code for this type of punishment. According to the meaning of the law, the court can go beyond the lower limits of not only the most severe, but also any other punishment provided for in the alternative sanction;

2) imposition of a more lenient type of punishment than provided for by the sanction of the article of the Special Part of the Criminal Code.

Taking into account the rules contained in Art. 64 of the Criminal Code of the Russian Federation, any milder type of basic punishment may be imposed, not specified in the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation, including a fine, deprivation of the right to hold certain positions or engage in certain activities, correctional labor, in compliance with the provisions of Art. 44 and parts 1 and 2 art. 45 of the Criminal Code of the Russian Federation not lower than the amounts or terms specified in the relevant articles of the General Part of the Criminal Code of the Russian Federation in relation to each type of punishment;

3) non-application of an additional type of punishment provided for as mandatory. Thus, if there are grounds for an extreme mitigation of the sentence, the court has the right to refuse to assign a person under Part 3 of Art. 285 of the Criminal Code of the Russian Federation deprivation of the right to hold certain positions or engage in certain activities.

The jury's verdict of leniency (Article 65 of the Criminal Code).

In case of a verdict of leniency, the punishment is assigned according to the following rules:

1) the term or amount of punishment for a person found guilty of committing a crime by a jury, but deserving leniency, cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed.

If certain types of punishments can be imposed as additional ones, indicating the term or amount (for example, a fine, deprivation of the right to hold certain positions or engage in certain activities), then if the jury verdicts on leniency, an additional punishment is imposed within the limits specified in the sanction of the article of the Special Part of the Criminal Code RF;

2) if the relevant article of the Special Part of the Criminal Code provides for the death penalty or life imprisonment, these types of punishments are not applied, and the punishment is imposed within the limits of the sanction provided for by the relevant article of the Special Part of the Criminal Code;

3) when imposing punishment for a set of crimes or a set of sentences, the type, term or amount of punishment is assigned according to the rules provided for in Art. Art. 69 and 70 of the Criminal Code. At the same time, jurors have the right to recognize that a person guilty of committing several crimes deserves leniency both for each of the crimes and for one of them;

4) when assigning a punishment to a person found guilty of committing a crime by a jury verdict, but deserving leniency, aggravating circumstances are not taken into account.

The presence of a verdict of leniency does not prevent, if there are grounds, the application of Art. 64 of the Criminal Code and the imposition of a more lenient punishment than provided for this crime.

Committing an unfinished crime (Article 66 of the Criminal Code).

The term or amount of punishment for preparation for a crime cannot exceed half (Part 2 of Article 66 of the Criminal Code), and for attempted crime - three quarters (Part 3 of Article 66 of the Criminal Code) of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code for a completed crime.

When assigning punishment for preparation for a crime or for an attempted crime, the court must be guided by the rules of Parts 2 and 3 of Art. 66 of the Criminal Code of the Russian Federation, bearing in mind that they apply also in the case when the calculated period is below the lower limit of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation. It is not required that there be grounds for imposing a more lenient punishment than provided for the crime.

The death penalty and life imprisonment for preparation for a crime and attempted crime are not imposed (Part 4 of Article 66 of the Criminal Code of the Russian Federation).

Second commentary to Art. 45 of the Criminal Code of the Russian Federation

1. According to the order of application, all types of punishment are divided into: a) main, b) additional, c) punishments with a dual legal nature (assigned both as main and as additional).

2. The types of punishments listed in part 1 of this article are the main ones. They bear this name because they are assigned only independently and cannot be combined with other types of punishment. Due to their nature and content, it is they who are called upon to provide the main, main, defining task of achieving the goals facing punishment.

3. A fine, deprivation of the right to hold certain positions or engage in certain activities, as well as restriction of freedom are punishments with a dual legal nature: they can be applied both as primary and as additional (Part 3 of the article). Guided by certain rules, the court can vary the application of these types of punishment, assigning them as either only basic or only additional.

4. Part 3 of this article provides for additional punishment. It is assigned only by joining the main ones and cannot be used as an independent punishment. This punishment plays an auxiliary, secondary role in achieving the goals facing the punishment.