Restriction of freedom - comments from a Federal Judge / MIP Law Group

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Restriction of freedom is one of many criminal penalties, the existence of which is intended to ensure the principle of individualization of sentencing, taking into account the nature and severity of the crime, the identity of the perpetrator and other circumstances, and to prevent further criminalization of the individual.

Punishment in the form of restriction of freedom

Punishment in the form of restriction of freedom can be imposed as a primary or additional punishment. The essence of restriction of freedom as a punishment is the imposition on a person by a court verdict of a number of restrictions provided for by domestic criminal legislation. Such restrictions include a number of prohibitions, in particular:

• to leave your home at the hours determined by the court;
• to visit certain places, the location of which is the territory of the corresponding administrative-territorial unit;
• to travel outside the administrative-territorial unit of residence;
• to visit venues of various kinds of events, primarily of a mass nature, as well as to participate in these events;
• to change the place of residence (stay), place of work (study) in the absence of permission from the body that carries out the execution (control and supervision) of the sentence by the convicted person.

In this case, the court has the right to establish individually specific types of the above prohibitions at its discretion, with the exception of restrictions related to changing the place of residence (stay) and traveling outside the administrative-territorial unit, the establishment of which is mandatory for all persons who are sentenced to such punishment as restriction of freedom .

Additionally, the convicted person is required to visit the body carrying out the execution of the sentence for registration 1-4 times monthly. The frequency is also specified in the sentence.

Judicial practice: sentences and punishment under Art. 58 of the Criminal Code of the Russian Federation

• Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2022 Judicial Collegium for Military Personnel of the Supreme...
• Judicial Collegium for Criminal Cases, appeal:... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-APU 17-21 APPEAL DECISION Moscow October 04, 2022 Judicial Collegium for Criminal Cases...
• Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
• Decision of the Supreme Court: Determination No. 72-АПУ17-1 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-АПУ17-1 APPEAL DECISION Moscow February 2, 2022 Judicial Collegium for Criminal Cases...
• Decision of the Supreme Court: Determination No. 38-АПУ17-2 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 38-АПУ17-2 APPEAL DECISION Moscow March 1, 2022 Judicial Collegium for Criminal Cases of the Supreme Court...
• Cassation ruling of the Judicial Collegium on... THE SUPREME COURT OF THE RUSSIAN FEDERATION CASSATION DECISION dated October 11, 2022 N 83-UD18-15 Judicial Collegium on criminal cases of the Supreme Court...
• Decision of the Supreme Court: Determination No. 8-APU17-2 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 8-APU17-2 Moscow March 16, 2017 Judicial Collegium for Criminal Cases of the Supreme Court...
• Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 27, 2002 N 29 ON JUDICIAL PRACTICE IN CASES OF THEFT,...
• Appeal ruling: Judicial Collegium for... THE SUPREME COURT OF THE RUSSIAN FEDERATION APPEAL DECISION dated July 11, 2022 N 7-APU19-5SP Judicial Collegium for criminal cases of the Supreme Court...

Duration and procedure for execution of punishment in the form of restriction of freedom

The execution of punishment in the form of restriction of freedom is entrusted to territorial criminal-executive inspections. The specific inspection that is required to register a convicted person is determined by the place of residence (stay) of the convicted person. From the moment of registration, inspectorate employees supervise the convicted person and carry out individual educational work aimed at correcting the personality and consciously preventing the latter from committing new crimes. Representatives of the public have the right to be involved in educational work.

In the course of performing supervisory functions during the execution of a sentence, technical means may be used, the introduction of which is intended to ensure the strict execution of the punishment and the latter’s compliance with the established restrictions, listed by government decree No. 198 of March 31, 2010, which approved the list of those. means of supervision and control used by the territorial correctional institutions of the country to ensure supervision over those sentenced to punishment in the form of restriction of freedom.”

The duration of the term of restriction of freedom as the main punishment begins from the moment of registration with the territorial criminal-executive inspection, where the sentenced supervised person is explained the legal status and consequences of violating restrictions and prohibitions.

If the convicted person is kept in custody during the preliminary investigation, the specified preventive measure shall be counted towards the final total sentence. The calculation is carried out according to the formula: a day in custody equals 2 days of restriction of freedom. This offset is reflected by the court in the verdict.

Additional punishment - restriction of freedom, as well as in the case of replacing imprisonment with this type of punishment, begins its course on the day of release from the penitentiary institution executing the sentence of imprisonment. In addition, if some time is required from the correctional institution to the territorial inspection at the place of residence, then it is subject to counting towards the term of serving the restriction of freedom at the rate of 1 to 1. Absence from the place of residence without reasons objectively recognized as valid cannot be counted towards the term of serving punishments.

In what cases can such a conviction be imposed?

A suspended sentence is feasible only for certain punishment options:

• correctional work;
• restriction on military service;
• detention in a disciplinary military unit;
• imprisonment up to eight years.

When the court selects a punishment, it pays attention to the following factors:

• social danger of the crime - degree and nature;
• the identity of the culprit;
• extenuating circumstances;
• aggravating circumstances.

Responsibility for evading restriction of freedom

Evasion from serving a restriction of freedom is punishable by criminal law only if it is recognized by it as malicious. Malicious evasion occurs when the convicted person:

• having been officially warned about the inadmissibility of violating the restrictions imposed by the court verdict, he nevertheless committed a violation of either a number of the procedures and conditions for serving the imposed sentence;
• refused to apply technical means to him for supervision;
• left his place of residence without the knowledge and permission of the inspectorate and his whereabouts within 30 days have not been clarified;
• did not arrive for registration or registration with the territorial inspection.

At the same time, criminal measures have their differences. Thus, if a person maliciously evades the main punishment of restriction of freedom, or imposed as a substitute for imprisonment, upon the submission of the inspection to the court, such punishment must be replaced with imprisonment or forced labor. In this case, two days of commutable punishment is equivalent to one day of both imprisonment and forced labor.

Malicious evasion of such additional punishment also involves prosecution under Article 314 of the Criminal Code of the Russian Federation.

Control

Control over the life of a person who has been given a suspended sentence is carried out by a special government body. As for military personnel, control is carried out by the command of military units.

If the offender, during the probationary period, evaded the fulfillment of the duties assigned to him, and also violated the current legislation, the court is authorized to cancel the suspended sentence and replace it with a real one.

A suspended sentence can be revoked before the end of the probationary period, including when not even half of it has passed. But the criminal must prove that he has reformed and also compensate for the harm caused. In this case, the judge may remove the criminal record.

The difference between restriction of freedom and imprisonment

The distinctive features of the analyzed types of punishment are:

• both punishments according to the Criminal Code of the Russian Federation act as independent independent measures of criminal legal influence on persons who committed criminal offenses;
• Both punishments, despite the fact that they relate to the freedom of the convicted person, however, the degree of that freedom in the event of its deprivation is literally reduced to a minimum, since the convicted person is completely isolated from the outside world and society by fences and the territory of the penitentiary institution, to which he is transferred for the entire term appointed by the court . The limitation lies in the conditional isolation of the convicted person, which is limited to the place of residence due to prohibitions on movement outside it, both on a territorial basis and on a temporary basis and the imposition of additional responsibilities.
• Isolation within the framework of imprisonment is ensured by special measures. institutions of the country's penitentiary system (prisons, colonies, medical institutions), while restriction of freedom does not require placement in any specially designated institutions, but is served at home under the supervision of the territorial correctional institution.
• The existence of restrictions on freedom in the sanctions of articles of the Criminal Code in domestic criminal law is relatively short-lived and starts in 2010. Imprisonment has been used for centuries as a criminal law measure, and is not a novelty for the current Russian code.
• The category of crimes for which imprisonment is imposed are grave and especially grave; restriction of liberty is provided for crimes that the law regards as less grave.
• Imprisonment within the framework of imprisonment can reach 20 years, and if there is a combination of sentences, then even 30 years, while the limitation provides for a term not exceeding 4 years.
• Restriction of freedom is not always the main type of punishment, and may be additional to deprivation of liberty, while deprivation of freedom is always the main type of punishment.

Commentary to Art. 58 of the Criminal Code of the Russian Federation

1. The issues of assigning and changing types of correctional institutions by courts are explained in the Post. Plenum of the Armed Forces of the Russian Federation dated May 29, 2014 N 9.

In Post. The Plenum of the Armed Forces of the Russian Federation dated November 29, 2016 N 55 explains the issues of motivation for punishment and the features of the operative part of a conviction in terms of the appointment of types of correctional institutions (paragraphs 27, 29, 34).

2. The designation of the type of correctional institution in accordance with the commented article ensures the differentiation of criminal liability, the implementation of the principles of justice and humanism, the achievement of the goals of punishment, as well as the individualization of the execution of punishment in relation to a person sentenced to imprisonment.

When assigning a type of correctional institution, it is necessary to take into account the criteria provided for in this article: category of crimes, form of guilt, type of punishment imposed (for a certain period or life), term of imprisonment, type of recidivism of crimes, the fact of having previously served a sentence of imprisonment, gender, age . In total, there are 18 such criteria. Their combination in various versions makes it possible to determine a particular institution in which the convicted person should serve his imprisonment.

At the same time, it should be noted that not all combinations of these criteria encountered in practice are directly provided for in Art. 58 of the Criminal Code of the Russian Federation. In many cases, interpretation of the provisions of this norm is required. This is the subject of clauses 2, 3, 4 and 8 of the Post. Plenum of the Armed Forces of the Russian Federation dated May 29, 2014 N 9.

3. The criminal law does not allow the possibility of appointing one or another type of correctional institution at the discretion of the court, with the exception of the cases specified in paragraph “a” of part 1 and part 2 of the commented article. We are talking about the possibility of appointing a general regime colony instead of a settlement colony, as well as a prison instead of strict and special regime colonies. In these cases, the court must motivate the decision. Taking this into account, in paragraphs 2 and 5 of the Post. The Plenum of the Armed Forces of the Russian Federation dated May 29, 2014 N 9 provides an approximate list of circumstances that the courts must take into account when resolving this issue. In particular, the number of crimes committed by the convicted person, their nature and degree of social danger (form of guilt, severity of the consequences, degree of implementation of the criminal intent, method of committing the crime, the role of the convicted person in it, other significant circumstances of the case); behavior before and after the commission of a crime, including attitude towards the act, compensation for harm caused by the crime, behavior in a pre-trial detention center, in a correctional institution, if the person previously served imprisonment; having a criminal record; data on the use of alcohol, drugs and other intoxicants, health status, presence of dependents, etc.

4. According to the rules provided for in paragraph “a” of part 1 of the commented article, the type of correctional institution should be assigned in case of conviction:

a) persons for crimes committed through negligence, regardless of the term of punishment and previous convictions;

b) a person who has not previously served imprisonment, for a combination of crimes, some of which were committed through negligence, and others intentionally, and intentional crimes belong to the categories of minor or moderate gravity;

c) a person who has not previously served imprisonment, for a set of crimes or a set of sentences for intentional crimes of minor and (or) medium gravity, as well as a serious crime for which a punishment not related to imprisonment was imposed.

If in these cases the court comes to the conclusion that it is necessary to appoint a general regime correctional colony for the convicted person to serve his sentence instead of a settlement colony, it must justify the decision made.

5. In the event of a conviction to imprisonment for intentional crimes of minor and (or) medium gravity or for a serious crime of a male person who has previously served imprisonment, in the absence of recidivism of crimes (for example, if imprisonment was served for a crime committed through negligence or under age) the sentence is served in a general regime correctional colony.

6. When a male person who has previously served imprisonment is sentenced to imprisonment for a certain period of time for committing a particularly serious crime, in the absence of any type of recidivism, the court assigns him a high-security correctional colony.

7. If a male person is sentenced to imprisonment for a term of over five years for committing a particularly serious crime, as well as in the case of a particularly dangerous recidivism of crimes, and in accordance with Part 2 of the commented article, he is assigned to serve part of the sentence in prison, the court must motivate the decision in the sentence and indicate in its operative part what term of punishment the convicted person must serve in prison and the type of correctional institution in which he must serve the remainder of the term of imprisonment.

When deciding on the appointment of a prison, the court must take into account the circumstances of the crime and the personality of the defendant, in particular the number of crimes he has committed, their nature and the degree of public danger; behavior before and after the crime, data on his behavior while serving imprisonment under previous sentences.

By virtue of the provisions of Part 2 of the commented article, the court must count the time the convicted person was held in custody before the conviction entered into legal force into the term of serving the sentence in prison. In this case, it does not matter whether or not a penalty in the form of placement in a punishment cell was applied to the convicted person during his stay in the pre-trial detention center. Based on the provisions of Part 1 of Art. 130 of the Penal Code, this circumstance is taken into account only when calculating the period of detention of a convicted person in a maximum security prison.

In addition, the period of serving the sentence in prison must also include the time the convict is transferred to the specified correctional institution after the conviction has entered into legal force, i.e. the period of its transfer.

8. A male person sentenced to imprisonment for a set of crimes or a set of sentences, including for a particularly grave crime for a term of over five years, may be assigned to serve a sentence in prison for part of the sentence for a particularly grave crime. A male person convicted of a particularly dangerous recidivism of crimes may be served in prison for part of the sentence imposed for the totality of crimes or for the totality of sentences.

9. If a male person commits a new crime while serving a sentence in prison, the court should assign him a sentence based on the totality of the sentences and indicate what part of it should be served in prison. Moreover, such a term cannot be less than the unserved part of the sentence in prison imposed under the previous sentence. The type of correctional institution for serving the remaining part of the sentence is determined in accordance with the commented article in the operative part of the sentence.

10. It is necessary to take into account that female persons sentenced to imprisonment for committing serious and especially serious crimes, regardless of the type of recidivism of crimes, are assigned to serve imprisonment in a general regime correctional colony, and in other cases - according to the rules of paragraph “a” h 1 commented article.

11. A person who has not reached 18 years of age at the time of sentencing, upon conviction in accordance with Part 6 of Art. 88 of the Criminal Code, the court prescribes serving the sentence in a correctional colony for deprivation of liberty (Part 3 of the commented article).

12. If a person who has committed a serious or especially serious crime as a minor has reached the age of 18 at the time of sentencing, the court should assign him to serve his sentence in a general regime correctional colony. When such a person is sentenced to imprisonment for a crime committed through negligence, or for an intentional crime of minor or moderate gravity, a type of correctional colony is assigned to him in accordance with paragraph “a” of part 1 of the commented article.

If a male person is convicted of crimes, some of which were committed by him before reaching the age of 18, and the other part - after the age of 18, the court must take into account what category of crimes were committed in each of these periods. For example, if a particularly serious crime was committed by a person before reaching the age of 18, and after reaching this age an intentional crime of moderate gravity was committed, then the person should be assigned to a general regime correctional colony. If, before reaching the age of 18, a person has committed an intentional crime of moderate gravity, and after reaching this age a particularly serious crime has been committed, then the sentence will be served in a high-security correctional colony.

13. When assigning a type of correctional institution, a person who has previously served imprisonment should be considered a person who, for a crime he committed in the past, served a sentence of imprisonment in a correctional colony, educational colony, prison, medical correctional institution or pre-trial detention center in the cases specified in Part. 1 tbsp. 74 of the Penal Code, if the conviction for this crime was not expunged or expunged at the time of the commission of the new crime.

Those who have previously served a sentence of imprisonment, in particular, include:

a) a person conditionally sentenced to imprisonment, who, on the grounds set out in Part 2.1, 3, 4 and 5 of Art. 74 of the Criminal Code of the Russian Federation, was sent to serve a prison sentence in a correctional institution and served it there;

b) a person for whom the deferment of serving a sentence was canceled on the grounds specified in Parts 2 and 5 of Art. 82 or part 2 and 5 art. 82.1 of the Criminal Code of the Russian Federation, and which was sent to serve imprisonment in the correctional institution where it was served;

c) a person sentenced to imprisonment, who, after serving part of the sentence, is released from prison on parole or on the basis of an amnesty act, by way of pardon, due to illness, or for whom the remaining unserved part of the imprisonment has been replaced by a more lenient punishment;

d) a person sentenced to imprisonment, who, after serving part of the sentence, was released from a correctional institution with a deferment of serving the sentence in accordance with Art. Art. 82 and 82.1 of the Criminal Code;

e) a person who has been sentenced to punishment in the form of a fine, compulsory labor, correctional labor, restriction of freedom or forced labor, who, on the grounds provided for in Part 5 of Art. 46, part 3 art. 49, part 4 art. 50, part 5 art. 53 and part 6 of Art. 53.1 of the Criminal Code of the Russian Federation, these types of punishment were replaced by imprisonment, which the person served in a correctional institution;

f) a person sentenced to imprisonment by a court of another state, who, in connection with his subsequent transfer to Russia for further serving of the sentence, served imprisonment in a correctional institution of the Russian Federation in accordance with a court decision on the recognition and execution of the sentence of a foreign state.

14. The concept of “a person who has previously served a sentence”, the definition of which is given in paragraph 11 of the Post. Plenum of the Armed Forces of the Russian Federation dated May 29, 2014 N 9, applies only to cases of designating a type of correctional institution.

In Art. 80 of the Penal Code, which regulates the separate detention of persons sentenced to imprisonment in correctional institutions, establishes that persons sentenced to imprisonment for the first time are kept separately from convicts who have previously served imprisonment (Part 2). In judicial practice, the question has arisen as to whether persons in respect of whom the criminal record has been expunged or withdrawn belong to the latter category.

The separate detention of persons sentenced to imprisonment for the first time and those previously serving imprisonment, regardless of the expungement or expungement of a criminal record, is due to the need to avoid the possible negative impact of the latter on persons who find themselves in correctional institutions for the first time. At the same time, the legal status of these persons and the procedure for serving the sentence (regime) in correctional institutions are the same.

This approach is consistent with the tasks and goals of criminal proceedings, defined in Art. 1 of the Penal Code: correction of convicts, regulation of the procedure and conditions for the execution and serving of sentences, determination of means of correction of convicts.

In addition, based on the provisions of Part 6 of Art. 86 of the Criminal Code, expungement or removal of a criminal record cancels all legal consequences provided for by the Criminal Code of the Russian Federation associated with a criminal record. Within the meaning of this norm, the need for separate detention of persons who have previously served a sentence of imprisonment cannot be considered as a legal consequence of a criminal record. ——————————— See: Def. Judicial Collegium for Administrative Cases of the Armed Forces of the Russian Federation dated 06/04/2014 N 9-КГ14-1.

15. Cannot be considered as having previously served a sentence of imprisonment, in particular:

a) a person who, for a crime committed, is judged in accordance with Part 1 of Art. 55 of the Criminal Code, instead of imprisonment, imposed a punishment in the form of detention in a disciplinary HF;

b) a person who was in a correctional institution by a court verdict, if his sentence was canceled in cassation or supervisory proceedings with the termination of the case or changed and if he was given a sentence not related to imprisonment, or a conditional sentence to imprisonment was applied to him;

c) a person who has been sentenced to imprisonment, but has not actually served his sentence in a correctional institution due to the application of an amnesty act to him, or exemption from serving a sentence by way of pardon, or failure to carry out the sentence in the event of the expiration of the statutory limitation period for the conviction , or for other reasons;

d) a person serving a sentence of imprisonment, if he is sentenced to imprisonment for a crime committed before the first sentence;

e) a person sentenced to imprisonment and who has served a sentence in places of deprivation of liberty for acts, the criminality and punishability of which has been eliminated by the new law, as well as if the new law does not provide for punishment in the form of imprisonment in the relevant article of the Special Part of the Criminal Code;

f) a person who was previously sentenced to imprisonment within the period of his stay in custody or under house arrest as a preventive measure, since he did not serve his sentence in a correctional institution;

g) a person who has evaded receiving an order on the procedure for going to the place of serving the sentence independently on the basis of Art. 75.1 of the Penal Code on a sentence that has entered into legal force or who has received this order, but has not arrived in the colony settlement;

h) a person conditionally sentenced to imprisonment, who, on the grounds set out in Art. 74 of the Criminal Code of the Russian Federation, was sent to serve imprisonment in a correctional institution, but this sentence was not actually served (for example, if he was taken into custody when accused of a new crime committed before arriving at the correctional institution).

16. When assigning a sentence of imprisonment to a person for a set of crimes or a set of sentences, the court must assign him a type of correctional institution in accordance with the requirements of Art. 58 of the Criminal Code after determining the final punishment.

17. If the court changes the category of the crime on the basis of Part 6 of Art. 15 of the Criminal Code, the type of correctional institution is assigned to the convicted person taking into account the changed category of crime.

18. It should be taken into account that, although the number of institutions executing punishment in the form of imprisonment includes medical correctional institutions (Part 9 of Article 16 of the Penal Code), in which, in accordance with Part 8 of Art. 74 of the Penal Code serve sentences for persons suffering from open tuberculosis, alcoholism and drug addiction; when such persons are sentenced to imprisonment, they must be assigned a type of correctional facility in accordance with the provisions of the commented article. Treatment of these convicts is organized in the manner established by penal legislation and by the administration of the correctional institution in which they are serving their sentence.

19. If provisions on deferment of serving a sentence of imprisonment are applied to a convicted person (Article 82 or 82.1 of the Criminal Code of the Russian Federation), the court should indicate the type of correctional institution in the operative part of the sentence, since if this deferment is canceled, such a person is subject to referral for serving the sentence in the place appointed by the court verdict.

20. In case of a suspended sentence to imprisonment, the type of correctional institution is not assigned. If a conditionally convicted person committed a new crime during the probationary period, the court, having canceled the conditional sentence on the basis of Part 4 or 5 of Art. 74 of the Criminal Code of the Russian Federation, appoints the type of correctional institution according to the rules of the commented article, including taking into account the category of crimes committed during the probationary period, as well as those crimes for which a suspended prison sentence was imposed.

The court, making a decision to revoke a suspended sentence and execute a sentence of imprisonment on the grounds specified in Part 2.1 or 3 of Art. 74 of the Criminal Code of the Russian Federation, the type of correctional institution is also assigned in accordance with the commented article.

21. If, before the sentence enters into legal force, it is established that the person sentenced to imprisonment was not assigned a type of correctional institution, the appellate court, in the manner provided for in Art. 389.13 of the Code of Criminal Procedure, in accordance with the commented article, designates the type of correctional institution in which the convicted person must serve his imprisonment. In the event that this circumstance is established after the sentence has entered into legal force, the court that passed the sentence or the court at the place of execution of the sentence in the manner provided for in Art. Art. 396 and 399 of the Code of Criminal Procedure, designates the type of correctional institution in accordance with the commented article.

In case of incorrect assignment of the type of correctional institution, the appellate court on the basis of clause 4 of part 1 of Art. 389.26 of the Code of Criminal Procedure has the right to change to a softer or more strict type of correctional institution in accordance with the requirements of the commented article. However, in this case, a more strict type of correctional institution can be assigned only if there is a presentation from the prosecutor or a complaint from the victim or private prosecutor, their legal representatives and (or) representatives.

If the convicted person is assigned a type of correctional colony with a less strict regime, then the court of cassation (supervisory) instance, within a year after the verdict enters into legal force, if there is a presentation from the prosecutor or a complaint from the victim or private prosecutor, their legal representatives and (or) representatives, cancels the sentence in this case. parts and transfers the case for a new trial in accordance with the rules of Art. Art. 396 and 399 of the Criminal Procedure Code for the appointment of the appropriate type of correctional institution.

22. According to part 4 of the commented article, a change in the type of correctional institution is carried out by the court in accordance with the criminal executive legislation of the Russian Federation.

In Art. 78 of the Penal Code establishes the rules for changing the type of correctional institution already assigned to a person serving a sentence of imprisonment. This norm, based on the requirements of individualization of punishment and differentiation of the conditions for serving it, gives the court the right, depending on the behavior of the convicted person and his attitude to work, to decide the issue of changing the type of correctional institution, both in the direction of improving the conditions for serving the sentence and in the direction their tightening.

23. During the court hearing, circumstances that are important for resolving the issue of changing the type of correctional institution for the convicted person are subject to investigation, in particular, the serving time of the convicted person in accordance with Part 2 of Art. 78 of the Penal Code, part of the sentence, his behavior, attitude to study and work, attitude to the committed act, partial or full compensation for the damage caused or otherwise making amends for the damage caused as a result of the crime.

The decision on the issue of changing the type of correctional institution must be legal, justified and motivated, and contain a substantiation of the conclusions that the court came to as a result of considering the relevant submission (petition). The courts do not have the right to refuse to change the type of correctional institution on grounds not specified in the law (for example, the severity of the crime committed, the presence of a previous criminal record, the leniency of the imposed punishment).

When resolving this issue, the court should keep in mind the opinion of the representative of the correctional institution and the prosecutor on the possibility of changing the type of correctional institution.

If a decision is made to change the type of correctional institution, the court sends a copy of the decision that has entered into legal force to the court that passed the sentence.

24. Courts should take into account that the actual serving by the convicted person of the legally prescribed part of the sentence in accordance with Art. 78 of the Penal Code in itself cannot serve as an unconditional basis for changing the type of correctional institution.

If the convicted person has served the part of the sentence established by law, after serving which it is possible to change the type of correctional institution, then the court does not have the right to refuse the petition on the grounds that the convicted person has served an insignificant part of the sentence.

If the convicted person has not served part of the sentence prescribed by law, then when a petition is received to change the type of correctional institution, the court should refuse to accept it for consideration. Such a petition may be submitted again at any time, as soon as the convicted person has served the statutory part of the sentence established by law.

25. The conclusion that a convicted person is positively characterized must be based on a comprehensive accounting of data on his behavior for the entire period of serving his sentence, and not just for the time immediately preceding the consideration of the presentation or petition. In this case, it is necessary to take into account compliance with internal regulations, compliance with the requirements of the administration of the correctional institution, participation in educational activities and in the public life of the correctional institution, rewards and penalties, maintaining relationships with relatives, as well as with convicts who are positively or negatively characterized, transfer to lighter conditions content, etc.

Penalties imposed on a convicted person for the entire period of serving the sentence are subject to assessment by the court in conjunction with other data characterizing him. In this case, one should keep in mind the nature of the violations committed and their impact on the process of correction of the convicted person, the time of imposition of penalties, their number, frequency, removal and repayment, the time elapsed since the last penalty. The presence or absence of a penalty against a convicted person cannot serve as either an obstacle to changing the type of correctional institution or a basis for changing it.

When deciding the issue of changing the type of correctional institution, the court does not check the legality of the penalties imposed on the convicted person, since the actions of the administration of the correctional institution related to disciplinary action are appealed through civil proceedings. At the same time, in cases provided for in Part 4 of Art. 78 of the Penal Code, the court must verify compliance with Art. 116 of the Penal Code, conditions and procedures for recognizing a person as a persistent violator of the established procedure for serving a sentence.

In the case where the convicted person served his sentence in various correctional institutions, in order to assess his behavior for the entire period of serving the sentence, the courts need to examine data on his behavior in all institutions.

26. When assessing the attitude of a convicted person to study and work, the courts should take into account, in particular, his desire to improve his educational level, studying at a comprehensive school and vocational school in a colony, acquiring labor skills during classes in training and production workshops operating in correctional facilities. institutions, obtaining a profession, engaging in work (subject to the convict’s ability to work and the availability of jobs in the correctional institution), participation in unpaid work for the improvement of correctional institutions and adjacent territories in accordance with Art. 106 PEC.

27. When examining the question of attitude towards the committed act, it is necessary to take into account the repentance of the convicted person for the act that occurred during the execution of the sentence. In this case, the court has the right to compare the attitude of the convicted person to what he did before the sentence was passed, which is reflected in the verdict, and his attitude to the committed act during the execution of the sentence.

It should be borne in mind that the constitutional right of everyone not to testify against themselves (Article 51 of the Constitution) must be ensured at any stage of criminal proceedings, including at the stage of execution of a sentence. Therefore, the fact that a person took advantage of this right when resolving the issue of changing the type of correctional institution cannot in itself serve as a basis for the occurrence of any adverse consequences for him.

28. When deciding on compensation for damage and (or) making amends for harm caused as a result of a crime, the courts must take into account the information provided by the administration of the correctional institution, the convicted person and (or) the victims (in particular, information about the settlement of a civil claim).

In cases where the damage caused by a crime is not compensated in a civil lawsuit due to such objective reasons as the disability of the convicted person or the presence of diseases that prevent him from finding employment, the impossibility of employment due to the limited number of jobs in the colony, etc., the court does not have the right to refuse to change the type of correctional institution only on this basis. At the same time, established facts of a convicted person’s evasion of compensation for damage caused by a crime (by concealing property, income, evading work, etc.), along with other circumstances, can serve as an obstacle to changing the type of correctional institution.

29. Within the meaning of clause “d”, part 2 of Art. 78 of the Penal Code, in relation to positively characterized convicts found guilty of committing especially serious crimes, the decision to transfer them to further serve their sentence from high-security correctional colonies to a settlement colony should be made after the person has served at least 2/3 of the sentence.

30. The law does not provide for the return to a special regime correctional colony of convicts transferred to a maximum security colony in the event of a malicious violation of the procedure for serving their sentence in this colony. The administration of the correctional institution may apply penalties provided for in Art. 115 of the Penal Code, as well as transfer by the court from a high-security correctional colony to prison in accordance with paragraph “c” of Part 4 of Art. 78 PEC.

In case of cancellation of parole on the basis of paragraph “a” of Part 7 of Art. 79 of the Criminal Code of the Russian Federation, as well as in case of malicious evasion of the convicted person from serving the remaining part of the sentence, replaced by a more lenient type of punishment on the basis of Art. 80 of the Criminal Code of the Russian Federation, the type of correctional institution is assigned to the one that was previously determined by a court verdict in accordance with Art. 58 of the Criminal Code of the Russian Federation, regardless of the type of correctional institution from which the convicted person was released.

Moreover, in the case of malicious evasion from serving a sentence determined in accordance with Art. 80 of the Criminal Code of the Russian Federation, the issue of replacing such a punishment with imprisonment must be decided according to the rules provided for the punishment chosen by the court in the execution of the sentence (for example, part 3 of article 49, part 4 of article 50, part 5 of article 53 , part 6 of article 53.1 of the Criminal Code of the Russian Federation).

Those sentenced to imprisonment and serving their sentence in a colony-settlement who have evaded receiving the order provided for in Part 1 of Art. 75.1 of the Penal Code, or who fail to arrive at the place of serving the sentence within the period established in the order, the type of correctional institution may be changed to a general regime correctional colony.

31. If a convicted person who has reached the age of 18 years is negatively characterized in places of deprivation of liberty, the court, in accordance with Part 1 of Art. 140 of the Penal Code, on the recommendation of the administration of the educational colony, may decide to transfer him for further serving of his sentence from the educational colony to an isolated section of the educational colony, functioning as a general-regime correctional colony, if any, or to a general-regime correctional colony.

When deciding this issue, the court should take into account, in particular, the behavior of the convicted person while serving his sentence in a correctional colony, including facts of his violation of internal regulations, evasion from study and work, and his negative impact on minors held in this colony.

The decision to transfer such a convicted person to an isolated section of a correctional colony, functioning as a general regime correctional colony, or to a general regime correctional colony is made by a judge of a district (city) court in compliance with the rules provided for in Art. Art. 396 and 399 Code of Criminal Procedure.