Deferment of serving a sentence - comments from a Federal Judge / MIP Law Group

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Criminal law provides for severe legal penalties for people who have committed criminal offenses of varying severity. However, in relation to certain persons, a special mechanism for carrying out punishment is possible with the provision of a reprieve for serving the prescribed sentence in places of deprivation of liberty.

The concept of deferment of serving a sentence

Deferment of serving a sentence is one of the conditional types of exemption from full incarceration of the criminal punishment prescribed by current legislation for a previously committed offense. The legal and social essence of deferment of serving a criminal sentence is to provide subjects of this legal norm who have young children in their care with the opportunity to be free until the child reaches a certain age.

The subjects of this law are the following persons:

• A woman who is pregnant;
• A woman who has a young child in her care;
• A man who is the parent and legal guardian of a child under fourteen years of age.

Accordingly, the objects of this legal norm are young children up to the age of fourteen. The key purpose of using this legal norm in judicial practice is to try to create the most optimal conditions for:

• Normal birth of a child;
• Full education and all-round development of a child.

Deferment of serving sentences for pregnant women and women who have minors in their upbringing and care, as well as for men who legally act as the sole parent of a minor, is granted on the basis of the application of the key principles of humanism and tolerance.

This norm of domestic law was developed and put into use after conducting research in the field of psychology and mental processes of convicts. Based on research results, it has been proven that in a state of pregnancy, as well as at the time of raising young children, a convicted citizen chooses exclusively the process of raising and maintaining his heir as a life dominant. Accordingly, even the most severe punishment will be ineffective. Therefore, when drawing up and adopting the law, it was justified to provide a deferment from serving a criminal sentence.

The procedure for considering issues of deferment of execution of punishment provides for compliance with the requirements of penal legislation. In order for the court to approve a decision to grant a deferment, it is customary to submit a corresponding petition for deferment of serving the sentence to the judicial authorities after considering the case of the offense.

Commentary on Article 82 of the Criminal Code of the Russian Federation

1. For a pregnant woman or a woman who has at least one child under the age of 14, the court may defer the actual serving of the sentence until the child reaches the age of 14, if she is convicted: a) for a crime against the person (minor and (or) moderate gravity ) - to imprisonment for a term of not more than five years or another more lenient punishment; b) for another type of crime - to any punishment.

2. Application of comments. Article cannot be associated with the appointment of a sentence of imprisonment for a term of more than five years to a convicted female person for a grave or especially grave crime against a person.

3. Pregnant women and women with children under the age of 14 cannot be given such types of punishment as restriction of freedom (Part 5 of Article 53), arrest (Part 2 of Article 54), which is why the use of comments. articles in these cases is impossible. It should be noted that currently the court has no right to impose criminal penalties in the form of restriction of freedom and arrest (see Article 4 of the Introductory Law). Compulsory work (Part 4 of Article 49) is not assigned to pregnant women and women with children under three years of age. The provisions of the Criminal Code of the Russian Federation on punishment in the form of compulsory labor were put into effect by the Federal Law of December 28, 2004 N 177-FZ “On the implementation of the provisions of the Criminal Code of the Russian Federation and the Criminal Executive Code of the Russian Federation on punishment in the form of compulsory labor” <1>. ——————————— <1> NW RF. 2005. N 1 (part 1). Art. 3.

4. A woman is considered convicted (as a general rule) from the moment the court’s conviction comes into force.

4.1. A person convicted of a crime is a person whose guilt in committing a crime has been proven and against whom a court verdict has been passed on this matter.

4.2. A conviction is a documented court decision based on the defendant’s guilt of committing a crime proven during the trial.

4.3. The verdict of the court of first instance enters into legal force after the expiration of the period for appealing it through the appellate or cassation procedure, if it has not been appealed. The verdict of the appellate court comes into force after the expiration of the period for appealing it in cassation, if it has not been appealed. If a complaint is filed or submitted in cassation, the verdict, unless it is overturned by the court of cassation, comes into force on the day the cassation ruling is issued (Article 390 of the Code of Criminal Procedure).

5. The fact of a woman’s pregnancy is confirmed by a medical certificate of pregnancy, and the fact of the presence of a child under 14 years of age is confirmed by his birth certificate and a certificate of the actual presence of a dependent child of the convicted woman.

6. A woman may be deferred from serving her sentence both when the court pronounces a guilty verdict and during the execution of the sentence.

6.1. A petition for a deferment of serving the sentence of a woman sentenced, in particular, to compulsory or correctional labor, or restriction of freedom (if she becomes pregnant), is submitted to the court by the convicted woman herself from the date of granting maternity leave (Part 9 of Article 175 of the Penal Code).

7. A deferment of serving a sentence for a pregnant woman or a woman who has a child under the age of 14 can be applied only if there are sufficient conditions for the normal upbringing of the child in a state of freedom, in particular: a) in the presence of a permanent place of residence; b) in a favorable social environment; c) when presenting to the court reasonable assurances about the future lawful way of life of the convicted mother and the possibility of raising and providing for the child.

7.1. These conditions are reflected in the documents sent by the administration of the correctional institution to the court along with a proposal to release the convicted woman from actually serving the sentence, and after a positive decision by the court is also sent to the penal inspection at the place of residence of the woman in respect of whom the deferment was applied, along with a copy of the court ruling on deferment of serving the sentence. These documents include: a) characteristics of the convicted person; b) a certificate of consent of relatives to accept her and the child, provide them with housing and create the necessary conditions for living, or a certificate of her availability of housing and the necessary conditions for living with the child; c) a medical report about pregnancy or a copy of the child’s birth certificate or a certificate of the presence of a child; d) the personal file of the convicted person (to resolve the issue in court) or a signature of a woman released from punishment to appear at the penal inspection within three days from the date of arrival (after a positive resolution of the issue in court) (see Part 3 of Article 177 of the Penal Code, paragraph 138 of the Instructions on the procedure for executing sentences without isolation from society).

7.2. Control over the behavior of a convicted woman during the period of deferment of serving her sentence is carried out by the penal inspection at her place of residence. A woman released from actually serving her sentence is required to appear at the inspectorate within three days from the date of arrival for registration (Part 4 of Article 177 of the Penal Code). On the day of her appearance at the inspection, the convicted woman is explained the conditions for deferring the serving of her sentence, the main of which are the conscientious upbringing and care of her child.

7.3. If a convicted woman, in respect of whom a deferment of serving a sentence has been applied, evades raising and caring for a child, then she is warned by the inspectorate in writing about the possibility of canceling the deferment and sending the convicted woman to serve her sentence.

8. If the convicted woman continues to evade raising and caring for the child after the warning has been announced, the criminal-executive inspection submits to the court a proposal to cancel the deferment and to send her to serve the sentence imposed by the court verdict. The following documents are attached to the submission: a) a copy of the court ruling on deferment of serving the sentence; b) materials indicating that the convicted woman evaded raising and caring for the child; c) characteristics from the place of work and residence; d) information from the local police commissioner, the juvenile affairs unit of the internal affairs body, the guardianship and trusteeship authority about her behavior and lifestyle; e) other documents (see part 3 of article 178 of the Penal Code; paragraph 146 of the Instructions on the procedure for executing sentences without isolation from society).

8.1. The submission must set out specific facts of the convicted woman’s evasion from raising and caring for a child, as well as data characterizing her behavior.

8.2. A motion to cancel the deferment and send a convicted woman to serve a sentence imposed by a court verdict is submitted by the criminal-executive inspection to the court without prior warning if the convicted woman officially abandons her child (see paragraphs 146, 147 of the Instructions on the procedure for executing sentences without isolation from society).

9. Evasion from raising a child and his maintenance can be expressed in leaving a child in a maternity hospital or transferring him to relatives, relatives, an orphanage or other persons (without officially abandoning him), leaving a child unattended for a long time, failure to fulfill basic responsibilities of a mother in raising and caring for a child, etc.

9.1. Failure to comply with the requirements for raising a child and caring for him may be associated with the convicted person leading an antisocial lifestyle, hiding her from a regulatory authority, etc.

10. When a child reaches the age of 14, or in cases of death of a child or termination of pregnancy by a woman, the punishment in respect of whom has been deferred, the penal inspection sends a proposal to the court to make one of the following decisions: a) release the convicted woman from serving the remainder of the sentence; b) replace the remaining part of the punishment with a more lenient punishment.

Decision-making depends on the nature and degree of social danger of the crime committed, the behavior of the convicted person, her attitude towards raising the child, the terms of the sentence served and unserved. The submission is accompanied by characteristics from the convicted woman’s place of work, information from the local police commissioner, the juvenile affairs unit of the internal affairs body, the guardianship and trusteeship authority about her behavior, lifestyle and other documents (see Part 3 of Article 82 of the Criminal Code; Part 5 Article 178 of the Penal Code; paragraph 149 of the Instructions on the procedure for the execution of sentences without isolation from society).

11. A convicted woman, whose sentence has been deferred, who has committed a crime again, is given a new conviction by the court and sentenced in accordance with the general rule - according to the totality of sentences (see Part 4 of Article 82, Article 70).

Grounds for deferment of punishment

A deferment of serving a sentence is granted only if there are serious grounds, which are:

• Discovery of pregnancy in a convicted woman.
• Having one child or young children under the age of fourteen.
• A man has one or more children under the age of fourteen, if he is the only legal parent and guardian.

Such grounds are optional, as they are considered optional. That is, in such a situation, the judicial authority can grant a deferment, but is not obliged to do this in every such case.

Review procedure and deadlines

The court must consider the petition within 10 days, but in practice this period may be delayed. If the decision is positive, the citizen must be immediately released from the correctional facility if he is being held there.

A refusal can be obtained if a person does not inspire confidence in the court as a parent for children (no job or home, has bad habits).

What happens in case of refusal

The citizen has only 10 days to appeal the court’s decision to deny a deferment of sentence to higher authorities. The period is counted from the moment this document is received in hand.

However, it is recommended to do this in cases where you have grounds for obtaining a deferment, otherwise, most likely, your appeal will be rejected.

Mandatory conditions for applying a deferment of punishment

According to current legislation, judicial authorities should not correlate the fact of granting a deferment with the type of punishment imposed. However, there is a list of formal conditions, compliance with which is mandatory for granting a deferment from serving a sentence. The conditions for applying the deferment rule are the absence of offenses and crimes of the following composition:

• An act committed against a minor under the age of fourteen, which was carried out against his sexual integrity;
• A crime against a person of particular gravity, which is punishable by more than five years of imprisonment;
• Offenses that are directed against public safety;
• Crimes that include a person as an object of criminal attack: robbery, extortion under threat of violence, illegal seizure, terrorism.

When considering cases on granting a reprieve for convicts who have minors in their care or women who are pregnant, the following factors are taken into account:

• Certificate of presence of a minor child.
• Certificate of pregnancy from a medical institution.
• The opinion of the administrative apparatus of the institution that is called upon to execute the decision on punishment.
• Psychological, professional and social characteristics of the person.
• The fact of consent of relatives for a citizen to live next to the child.
• Information about the availability of living space and the compliance of conditions with all the standards necessary for the optimal upbringing and development of a young child.

Thus, before making a decision to grant a deferment, the court takes into account all the important data that is indicated in the person’s personal file. The citizen’s behavior while serving his sentence and living conditions outside places of detention are also additionally taken into account. Accordingly, a deferment is not provided to violators of the law, as well as to persons who refuse to raise their own child or are deprived of parental rights.

How to get a deferment

To do this, you need to file a petition, and the decision is made by the court. Before this, the regulatory authorities also find out whether there are the necessary conditions for raising a child: the availability of work, housing, etc. is checked.

If a citizen is already in a correctional institution, then its administration is obliged to check all the above information within 10 days. Next, the petition itself is sent to the court with a description of the citizen, as well as all documents regarding the established information about his work and place of residence.

If the decision is positive, the citizen is released, but within 3 days he must appear at the penal inspection, where a conversation is held with him explaining his responsibilities for fulfilling the conditions of the deferment. Then he will be monitored.

Structure and sample of an application

This document is prepared like all regular applications. In the upper right corner the name and address of the court where the paper is submitted, and all information regarding the citizen himself is indicated. In the middle is the title of the document.

Next, you need to describe for what offense the punishment was imposed and in what amount. Then you need to indicate for what reason the deferment is required (if due to the presence of children, then be sure to write how old they are and whether there are conditions for their maintenance).

In the application you need to list the attached documents, and at the end - put your signature and date of preparation.

Cancellation of deferment of serving sentence

The fundamental basis for canceling the deferment for serving a criminal sentence in places of deprivation of liberty and sending a citizen to the appropriate correctional institution is:

• Voluntary abandonment by a person of his own child;
• Malicious and prolonged evasion of participation in the upbringing of a minor after the issuance of an appropriate warning by a judicial authority;
• Termination of pregnancy at the request of a woman without medical indications.

The basis for the categorical cancellation of a deferment for serving a sentence for a criminal offense in places of deprivation of liberty is the commission of a new crime by the convicted person during the period of the deferment. In this case, the nature and severity of the crime is not considered at all.

A reduction in the deferment for serving a criminal sentence for committing a crime is possible subject to the expiration of a period equal to the duration of the allotted punishment before the minor child reaches the age of fourteen.

In this case, the convicted person is obliged to comply with all the conditions of the deferment and prove to the responsible government authorities the fact of his correction. On such grounds, the judicial authority has the opportunity to shorten the period of deferment, release the convicted person early, and completely eliminate the criminal record.

Concept and features

Deferment is understood as a measure in which the state temporarily refuses to apply punishment due to circumstances determined by law. This could be a temporary state refusal. structures from using the measure, and the complete release of a person from it in cases where no illegal actions were noticed in his behavior.

The purpose of this measure is determined by humanism, expressed in providing the child with normal living conditions and growing up, but taking into account the necessary influence on the citizen for his correction.