1. A pregnant woman, a woman who has a child under the age of fourteen, a man who has a child under the age of fourteen and is the only parent, except for persons who have been sentenced to restriction of freedom, imprisonment for crimes against the sexual integrity of minors, shall not those who have reached the age of fourteen, imprisonment for a term of over five years for grave and especially grave crimes against the person, imprisonment for crimes provided for in articles 205, 205.1, 205.2, 205.3, 205.4 and 205.5, parts three and four of article 206, part four of article 211 , Article 361 of this Code, and crimes associated with the implementation of terrorist activities, provided for in Articles 277, 278, 279 and 360 of this Code, the court may defer the actual serving of the sentence until the child reaches the age of fourteen.
2. If the convicted person, specified in part one of this article, has abandoned the child or continues to evade the responsibilities of raising the child after a warning announced by the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence is suspended, the court may, upon the recommendation of this authority to cancel the deferment of serving the sentence and send the convicted person to serve the sentence to the place appointed in accordance with the court verdict.
3. When the child reaches the age of fourteen, the court releases the convicted person specified in part one of this article from serving the sentence or the remaining part of the sentence with the removal of the criminal record or replaces the remaining part of the punishment with a more lenient type of punishment.
4. 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 was suspended, has come to the conclusion that the convicted person has complied with the provisions specified in part one of this article, conditions of deferment and its correction, the court, upon the proposal of this body, may decide to reduce the period of deferment of serving the sentence and to release the convicted person from serving the sentence or the remaining part of the sentence with the criminal record expunged.
5. 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 the article of this Code.
- Article 81. Exemption from punishment due to illness
- Article 82.1. Deferment of serving sentences for drug addicts
What's the point
Providing a deferment of serving a sentence in a criminal case is one of the ways to avoid real punishment.
That is, the court names a person a criminal, brings him to criminal responsibility, and determines the measure of punitive action. But actual hardships and hardships are postponed to a later date. And after this time:
- are removed from the obligation to carry out military service;
- the criminal record is annulled.
During the deferred period, the convicted person is monitored. And if the behavior is not satisfactory, and other conditions for the suspension of punishment are also violated, then the offender will be handed over to the penal authorities. Where he will bear responsibility according to the general rules.
What penalties does it apply to?
The Criminal Code speaks of the possibility of delaying imprisonment. But there are also no prohibitions on applying this measure to citizens who have been assigned other criminal penalties.
The only exception is restriction of freedom . If the court chooses this type of duty, it will not be possible to postpone it. Naturally, this does not apply to fines.
Varieties
There are two reasons for applying this concession:
- a parent who has a child;
- drug addicted person.
True, these grounds also have a number of mandatory conditions and requirements. This will be discussed below.
The concession itself is applied at the sentencing stage. Or already in the process of fulfilling their “duty to society.”
Consideration of the application
When making a decision on applications for granting a deferment, the court proceeds from an assessment of:
- the gravity of the crime committed;
- characteristics of the convicted person;
- the degree of his repentance;
- objective need to provide a deferment, etc.
An application for deferment may be sent to the court:
- the convicts themselves;
- his close relatives or dependents;
- legal representatives;
- prosecutor.
To whom does it apply?
Not in any case, a person devoted to justice can count on relief in the form of a postponement of enforcement of the sentence. We are talking about the following categories.
Parent of a child under 14 years of age
Such a parent is the baby’s mother, and may also be the only parent-father.
For these persons, the law provides for the following requirements:
- a person is brought to criminal responsibility for the first time;
- the crime must not be serious or of minor gravity;
- a grave or particularly grave act is allowed, but for which the judge has determined no more than 5 years of imprisonment;
- The issue cannot be considered if offenses have been committed under such articles of the Criminal Code of the Russian Federation as: 205-206 (parts 3, 4), 211 (part 4), 277, 278, 279, 360.
For these citizens, deferment is provided until their child’s 14th birthday.
Drug addict
Deferment of serving a sentence for a drug addict also has specifics:
- a citizen must, of his own conviction and will, undergo a drug treatment program in a licensed medical institution. Including this type of treatment;
- after treatment, medical and social rehabilitation is necessary;
- the perpetrator was charged with a crime strictly under certain articles (part 1 of article 228, part 1 of article 231, or article 233) of the Criminal Code of the Russian Federation. For example, the defendant is charged with Art. 228 and 228.1 of the Criminal Code. As you can see, the totality includes “alien composition”, which means the court is not able to postpone the punishment for the future;
- the said offenses must be the deferred person's first.
Deferment is provided for up to 5 years (regardless of the term of service imposed by the court).
Application for deferment due to serious illness
The application must be accompanied by a medical or expert medical report, not only stating the fact of the presence of the disease, but also containing conclusions that the disease excludes the possibility of being in prison or performing correctional labor.
It should be remembered that not a single expert opinion has predetermined force for the court. The judge may accept the arguments of the medical report, but he will evaluate them in conjunction with other circumstances and guided by personal conviction.
The deferment is provided for the duration of treatment. If, based on the results of treatment, the convicted person recovers, the deferment will cease to apply and the convicted person will have to begin serving his sentence.
Illnesses that qualify for deferment include:
- mental illnesses that arose during the period of serving a sentence, due to which the convicted person ceases to be aware of the very fact of his presence in places of deprivation of liberty and to direct his actions;
- other serious illnesses that arose during the period of serving the sentence, incompatible with serving the sentence.
If we are talking about a mental illness, due to which the convicted person is declared insane, he is released from punishment and, if necessary, compulsory medical measures can be applied to him.
If another serious illness leads to disability of the convict, with assignment of disability of 1-2 groups, the convict will be released from serving his sentence according to the conclusion of the VTEC.
How is it prescribed?
The “suspensive” issue is considered at the time of the guilty verdict, or already in the process of imposing criminal punishment.
At sentencing
This situation is simple. The judge himself, under suitable conditions, resolves the problem.
However, if the defendant (or his lawyer) submits a petition to defer serving the sentence, then such a precaution will only be beneficial.
Such initiative is especially relevant for a drug patient. Along with the application, submit:
- medical documents confirming the diagnosis of drug addiction;
- expression of desire to undergo a drug addiction treatment program of one's own free will;
- consent to socio-medical adaptation.
In this case, treatment and adaptation in total should not exceed 5 years.
It must be taken into account that the appointment of a deferment in accordance with Part 1 of Art. 82 of the Criminal Code of the Russian Federation is a right, not an obligation of the court. Therefore, the petition must be thorough and convincing.
When the issue is resolved positively, then when the verdict comes into force, the procedural relaxation will begin to operate automatically. In this case, a copy of the verdict is sent to the criminal inspectorate at the place of residence of the defendant, where he needs to register.
During the execution of punishment
The convicted person himself, while in prison, his lawyer-defender, legal representative can file a petition to transfer the sentence to the future.
It is sent through the UIN where the convicted person is placed.
The administration of a correctional institution can independently (without the initiative of the convicted person) send its presentation to the district/city court at the location of the institution.
The general procedure for applying a deferment of serving a sentence to a convicted person looks like this.
In the petition, the woman indicates the presence of:
- child at the appropriate age;
- own housing;
- relatives who are ready to provide housing with suitable conditions for the mother and her child (children), if she does not have her own residential space;
- When the convicted man is a man, confirmation is required from the baby’s father that he is a single parent.
The administration requests information and information
No later than 10 days after receiving the petition of a criminally convicted person, the UIN sends requests to:
- Rosreestr on the availability of real estate;
- Civil registry office about children;
- The municipality on the concluded social tenancy agreement;
- as well as to the relatives of the defendant in the case regarding their consent to provide comfortable living space for the mother/father and child.
A convicted woman has the right to submit an application in advance, that is, at a late stage of pregnancy. However, there is no provision for deferment of serving sentences for convicted pregnant women. But the court can approve the petition subject to the birth of the baby. Therefore, at the stage of submitting an application, the UIN, in order to confirm the fact of pregnancy, can obtain information about this from a medical institution (clinic, antenatal clinic).
Direct forwarding of materials to the judge
Having received answers to the requests, the penitentiary administration prepares a profile for the convicted person. No later than 10 days, all this, namely:
- document on ownership of the apartment/residential building;
- consent of relatives to provide housing and necessary living conditions;
- birth certificate;
- pregnancy certificate;
- characteristics of the convicted person;
- private bussiness
sent to the territorial district/city court.
The same procedure, except for the composition of the documents, is provided for convicted drug patients.
The correctional institution, at its discretion, determines the possibility of supporting the petition. Everything is based on the conviction of penitentiary officials that the convicted person has reformed and is capable of living in freedom.
Court ruling
The court hearing is held with the participation of interested parties, including the convicted person, the prosecutor, the prisoner of imprisonment, and the victim. There are two types of judicial act:
- Refusal;
- Satisfaction. In this case, the text of the determination must include the date of release from service.
The court ruling is sent to the UIN, which is executed by it. That is, the citizen is required to sign up for the need to arrive at the territorial UIN (by registration) within 3 days from the date of return home.
Application of deferment under the Criminal Code of the Russian Federation
Art. 397 of the Code of Criminal Procedure of the Russian Federation defines the range of issues that arise in the process of executing a court verdict. Thus, in accordance with this article, consideration of applications for deferment of execution is within the competence of the judicial authorities.
The basic principle of criminal punishment is its inevitability. Therefore, sentences that have entered into legal force are subject to immediate execution within the framework determined by the court. In this case, the granting of a deferment is not the norm, but an extraordinary event, applied strictly within the law.
Persons sentenced to either imprisonment or correctional labor can request a deferment. The grounds for granting a deferment are strictly regulated. They may be:
- serious illness due to which the convicted person is physically unable to serve his sentence;
- the convict is pregnant or has children under 14 years of age in her care. The possibility of applying a deferment for these categories of convicts is limited. Thus, a reprieve cannot be applied to women sentenced to imprisonment for a term of more than five years or convicted of especially serious crimes against human life and health;
- the possibility of grave consequences for the convicted person or members of his family if the convicted person is sent to prison, for example in the event of the death of the sole breadwinner of the family or a natural disaster that destroys the family’s home. In this case, the deferment has a very limited validity period and cannot be granted for longer than 3 months.
Unlike Soviet deferments, a deferment in the Russian Federation is granted for a certain period, after which the convicted person returns to serving his sentence.
Execution order
The behavior of the deferred prisoner is monitored by the criminal-executive inspection. That is, they register it and work with it. This is another name for monitoring a convicted person with a deferred sentence. But it is not the same as with conditional or parole. Some more powers. Inspectors also monitor:
- whether the parent avoids raising/caring for the child;
- Is he undergoing drug addiction treatment and medical and social adaptation?
If exemplary behavior is observed, then the administration of the penal system, as an exception, can go to court with a presentation that provides for:
- reduction of the period as of the current date (date of submission);
- complete exemption from criminal liability;
- expungement of criminal record.
But such a representation cannot be sent if the completed calendar period of deferment is less than the period measured in the sentence.
In a normal situation, when a deferment is executed positively, the following happens.
The child of the convicted person turns 14 years old
The inspectorate sends a submission to the court in which it describes the behavior of the person involved, how the minor was raised, etc. The Chief Inspectorate asks for one of two things:
- release from punishment with a criminal record expunged;
- replace the remainder of the charge with a more loyal type of punishment (with the expungement of a criminal record). Replacement cannot be made when the citizen has not served a single day of the assigned sanction . Suppose, due to the fact that the “suspensive” issue was resolved already at the stage of drawing up the verdict.
By the way, the UIN can submit a representation even before the child reaches 14 years of age for various circumstances (for example, the death of a minor).
The court decision is made taking into account the circumstances of the case and the opinion of the UIN.
Completion of treatment and rehabilitation
The inspectorate will send the relevant document to the court provided that:
- medical procedures and medical adaptation have been fully completed;
- abstinence from drug use for 2 or more years;
- There is a positive conclusion from a narcologist.
The court resolves the issue in a similar way.
Conditions for drug addicted prisoners
For drug addicts, the law provides for special conditions for deferment from serving a sentence. They are specified in Article 82.1 of the Criminal Code of the Russian Federation. In order for the moment of execution of the punishment to be postponed, three conditions must be simultaneously met:
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- This is the first time a citizen has been deprived of his freedom. He should not have previously been prosecuted for illegally growing plants containing narcotic substances. The same applies to the organization of drug trafficking.
- The person is recognized as a drug addict. Only forensic experts can make such conclusions.
- The defendant wished to undergo medical and social rehabilitation.
In the presence of the above circumstances, the court must grant the convicted person a deferment until completion of treatment. Its maximum period is 5 years.
Grounds for termination of deferment
Such a decision may be made by the court in the following cases:
- the citizen avoids systematic treatment;
- the convict refused to undergo rehabilitation.
Evasion should be understood as a situation where the drug addict did not directly refuse treatment, but was caught committing the following actions:
- use of illegal substances (including alcohol);
- failure to appear at the medical institution at the appointed time;
- vagrancy, begging;
- ignoring doctor's instructions;
- Commission of crime;
- attempts to hide from the investigation (the person has not been in contact for more than a month).
In the presence of the above circumstances, UII employees have the right to go to court. If the judge approves the petition, the defendant will go to serve his sentence.
When does release from punishment occur?
A drug addict may be released if the following conditions are met:
- the citizen has completed a full course of treatment and rehabilitation;
- remission occurred when the addict completely stopped using illegal substances.
Application structure
There is nothing complicated in drawing up an application (petition) for a deferment. If you wish, you can use the standard template available on the site. It will only need to be individualized in accordance with the real circumstances of the convicted person.
In accordance with the list of structural elements given below, the application should sequentially include:
- name of the judicial authority to which the application is sent;
- Full name of the applicant. Let us recall that the applicant can be either the convicted person himself or his close relatives or legal representatives;
- name of the application. For example, “Application for a deferment of execution due to illness”;
- description of the background. For example, “By the verdict of the court of the city N dated April 1, 2021, I was convicted under Art. ____ with a sentence of 5 years in prison and am currently serving a sentence in a _____ colony”;
- a description of the reason why the extension is requested. For example, “While serving my sentence, I was diagnosed with the following illness ____”;
- a description of what confirms the disease;
- the actual request to the court to grant a deferment;
- list of attached documents;
- date and signature of the applicant.
The list of attached documents is not limited. This means that any document can be attached that, in the opinion of the convicted person, can confirm the existence of grounds for a deferment.
Where to contact
Applications for deferment are considered:
- courts whose jurisdiction extends to the territory where a sentence of imprisonment is served;
- by the courts that passed the sentence, if the place of serving the sentence corresponds territorially, including if the penalty is associated with a fine or correctional labor;
- by higher courts, if the place where the sentence was passed and the place where the sentence was served do not coincide, and the corresponding unit of the judicial system does not operate in the territory.
Deferment of fine payment
The period for execution of a penalty in the form of a fine is 30 days, and the fine, as a general rule, must be paid in full within this period.
If it is difficult to pay, the convicted person may ask the court or bailiff for:
- deferment of payment;
- installment payment.
Moreover, when submitting an application for deferment, the convicted person must indicate exactly when he will have the opportunity to pay the fine. In any case, a deferment may be granted for a period of no more than a year.
If the request concerns a deferment, then the amount of the fine is divided into several parts, which the convicted person must repay in accordance with the established payment schedule.
