ST 82 of the Criminal Code of the Russian Federation.
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 Article 70 of this Code.
Commentary to Art. 82 of the Criminal Code
1. In Art. 82 of the Criminal Code provides for an optional type of exemption from punishment for pregnant women, women with children under 14 years of age, and men with a child under 14 years of age and who are the only parent, from imprisonment for crimes under Art. 205, 205.1, 205.2, 205.3, 205.4, 205.5, parts 3 and 4 of Art. 206, part 4 art. 211 of the Criminal Code, and crimes associated with the implementation of terrorist activities, provided for in Art. 277, 278, 279 and 360 of the Criminal Code.
2. To apply the analyzed norm, several conditions and grounds must be present. Conditions of application: a deferment can be granted not only from serving imprisonment, but also from any type of punishment, the execution of which is made difficult by the woman’s pregnancy or the presence of a young child with the convicted person.
3. In Part 9 of Art. 175 of the Penal Code of the Russian Federation provides for the possibility of granting a deferment of serving a sentence in connection with the onset of pregnancy of a woman serving a sentence in the form of compulsory labor, correctional labor or forced labor. In clause 2, part 1, art. 398 of the Code of Criminal Procedure of the Russian Federation secures the right of the court to defer the execution of a sentence when sentencing pregnant women or those with young children to compulsory labor, correctional labor, arrest or imprisonment, as well as convicted men who are the only parent of young children, until the youngest child reaches the age of 14 years.
4. A deferment from serving a sentence is not granted to those sentenced to restriction of freedom or imprisonment for a term of more than five years for grave and especially grave crimes against the person. In this case, crimes against the person are understood as crimes in which the person acts as the main or additional object of the attack. In addition, a reprieve is not provided to those sentenced to imprisonment for crimes against the sexual integrity of a minor under the age of 14 years (Articles 131 - 135, 240 - 242.2 of the Criminal Code).
5. The basis for release from punishment is the pregnancy of the defendant or convicted person or the presence of a young child under the age of 14; in the presence of such circumstances, the corrective effect of the actually served sentence is significantly more difficult.
6. Pregnant women serving imprisonment may be granted a deferment regardless of the stage of pregnancy. If they are serving a sentence in the form of compulsory labor or correctional labor, a deferment can only be granted from the day when, according to the Labor Code of the Russian Federation, she has the right to maternity leave.
7. When deciding whether to grant a deferment, the court takes into account the characteristics of the defendant or convicted person, the consent of relatives to accept him (her) and the child, the availability of housing and the ability to create conditions for the normal development of the child, etc.
8. A deferment from serving a sentence is a conditional type of release from punishment. It can be canceled in the following cases:
- if the convicted person abandoned the child. Abandonment of a child should be understood as an official statement made by the child’s parent to the relevant authorities;
- if he (she) continues to evade raising and caring for the child after a warning issued by the criminal-executive inspectorate monitoring his (her) behavior.
A person is considered to be evading raising a child and caring for him if he, without officially abandoning the child, left him in a maternity hospital or transferred him to an orphanage, or leads an antisocial lifestyle, or left the child to relatives or other persons, or hid, or commits other actions indicating evasion from raising a child (Part 3 of Article 178 of the Penal Code of the Russian Federation).
9. If a person commits a new crime during the period of deferment, then the deferment is canceled and the punishment is imposed according to the rules of Art. 70 CC.
10. When a child reaches 14 years of age (if a person has two or more young children, then when the youngest child reaches that age), the court makes one of two decisions: either releases the person from serving the sentence or the remaining part of the sentence, or replaces the remaining part of the sentence a milder form of punishment.
One of these decisions is also made in the event of the death of a child (Part 4 of Article 178 of the Penal Code of the Russian Federation). When making a decision, the court takes into account the nature and degree of social danger of the crime committed, the behavior of the convicted person, his attitude towards raising the child, the served and unserved sentence. However, if the statute of limitations for the conviction established by Art. 83 of the Criminal Code, a person is subject to mandatory release from punishment.
11. If a person complies with the conditions for deferring serving a sentence and correcting it, the criminal-executive inspection submits to the court a proposal to reduce the period of deferment of serving the sentence and to release the person from serving the sentence or the remaining part of the sentence with the criminal record expunged. In this case, the specified submission cannot be made before the expiration of a period equal to the term of the sentence, the serving of which was postponed (Part 5 of Article 178 of the Penal Code of the Russian Federation).
Types of deferment of serving a sentence
Types of deferments are classified as follows:
- for the duration of pregnancy, childbirth, until the child reaches the age of 1 year;
- for the duration of guardianship until the minor reaches fourteen years of age;
- for the period of treatment and rehabilitation of a drug addict;
- for a period of up to 6 months if certain circumstances arise that threaten the offender or members of his family (natural disasters, death of a person who was the sole breadwinner).
If these facts exist, according to the Criminal Code of the Russian Federation, the deferment of serving the sentence is considered lawful.
Second commentary to Art. 82 of the Criminal Code of the Russian Federation
1. The possibility of granting a deferment of serving a sentence to pregnant women and women with young children also applies to a man who has a child under the age of 14, provided that he is the only parent of this child. This clause excludes the application of the deferment to the child's adoptive father or grandparent.
2. The law does not link the use of deferment with any specific type of punishment. In accordance with Part 9 of Article 175 of the Penal Code, the institution in question applies to women sentenced to compulsory labor, correctional labor and forced labor, and Art. 177 of the Penal Code regulates the deferment of serving a sentence of imprisonment.
3. The basis for applying this type of exemption from punishment is the inexpediency of serving a sentence by a pregnant woman, as well as a woman with a young child, since pregnancy and the presence of a small child significantly complicate the process of executing the punishment and achieving its goals, as in relation to a man who is the only parent of a young child.
4. The law provides for two conditions necessary for granting a deferment of serving a sentence.
Firstly, the fact of pregnancy of a woman or birth (adoption, adoption) of a child must be established. The question of granting a woman a deferment of serving her sentence can be raised at any time after pregnancy is established or she has a child. Naturally, termination of pregnancy, stillbirth or death of a child during the deferment means that the condition in question disappears and entails raising the question of canceling the granted deferment. In relation to a man, it is necessary to establish that he has a child under the age of 14 and that the child does not have a mother.
The second condition is that the person has not been sentenced to imprisonment for a term of more than five years for a serious or especially serious crime against the person. In accordance with the letter of the law, Article 82 of the Criminal Code does not apply to those sentenced to imprisonment for a term of more than five years for grave and especially grave crimes against the person, i.e. provided for by Section VII of the Criminal Code (Article 105, 111, Part 2 of Article 117, Part 3 of Article 122, 126, Part 3 of Article 127,
Part 2 Art. 128, 131, 132, parts 2-4 art. 150, part 3 art. 151). However, these crimes also include acts provided for in other sections of the Special Part of the Code, but related to an attack on human life or health (for example, Articles 206, 277, 295, 317, etc.).
This type of release does not apply to persons sentenced to imprisonment (regardless of its term) for any of the crimes of a terrorist nature listed in Part 1 of Art. 82 of the Criminal Code.
5. Conviction for any crime related to an attack on the person to a less severe punishment than 5 years of imprisonment is not an obstacle to granting a deferment of serving the sentence.
6. Within the meaning of the law, a deferment from serving a sentence may be granted to a convicted person both when the sentence is announced and during the period of serving the sentence. If pregnancy occurs or a child is born before the verdict is passed, as well as in cases where a man has become the only parent of a young child, the court, taking into account the presence of necessary conditions and a medical report on pregnancy or documents confirming the presence of a child, decides to defer the execution of the sentence until the younger child reaches a child of 14 years of age (clause 2, part 1, article 398 of the Code of Criminal Procedure). If the above-mentioned circumstances arose while the convicted woman was serving her sentence, then the specialized state body in charge of executing the sentence submits to the court a proposal to defer further serving of the sentence, sending along with the proposal a medical report on pregnancy or documents confirming the presence of a child, as well as a description and personal case of a convicted person.
7. Women serving imprisonment may be granted a deferment regardless of the stage of pregnancy. Women serving a sentence in the form of compulsory labor, correctional labor or forced labor can be granted a deferment only from the date of maternity leave (Part 9 of Article 175 of the Penal Code).
The procedure for granting deferment of serving a sentence to persons serving imprisonment in a correctional institution is regulated by Article 177 of the Penal Code.
8. The behavior of convicts who have been granted a deferment of serving their sentence is monitored by the penal inspection. Evasion from raising a child is a violation of the terms of the deferment and entails a penalty in the form of a written warning. If the convicted woman (convict) continues to evade raising the child after a warning, the court, upon the proposal of the penal inspection, has the right to cancel the granted deferment and send the convicted woman (convicted) to serve the sentence in accordance with the sentence (Part 2 of Article 82 of the Criminal Code).
9. The refusal of the convicted person to abandon the child and transfer him to a child care institution or to other persons, according to the law, is sufficient grounds for canceling the granted deferment. Based on this fact, the penal inspection, without any preliminary educational measures, submits to the court a proposal to cancel the deferment of serving the sentence, which, as a general rule, must be granted by the court.
Advertisement the convicted person from serving the sentence or the remaining part of the sentence with the criminal record expunged (Part 4 of Article 82 of the Criminal Code).
11. Deferment of serving a sentence is not a final release from serving the sentence imposed by the sentence. In accordance with part 3 of Art. 82 of the Criminal Code, when a child reaches 14 years of age, the court is obliged to consider the consequences of the expiration of the deferment time. Taking into account the behavior of the convicted person during the deferment and her (his) attitude towards the performance of parental responsibilities, the court has the right to make one of three decisions:
- finally release the convicted person from serving the assigned sentence with the criminal record expunged;
- release her (him) from serving the remainder of the sentence with the criminal record expunged;
- replace this part with a more lenient form of punishment.
12. If a person who was granted a deferment when passing a sentence, after the end of the deferment was released from serving the assigned sentence, then in accordance with Part 2 of Art. 86 of the Criminal Code, he is considered to have no criminal record.
13. The type of exemption from punishment under consideration is optional, i.e. applied at the discretion of the court, and conditional. Its conditional nature is manifested in the fact that the deferment can be canceled on the grounds provided for in Part 2 of Art. 82 of the Criminal Code, and also that after the expiration of the deferment, the punishment imposed on the person, depending on the specific circumstances, can be replaced by a more lenient punishment. The law provides only two grounds for canceling the granted deferment:
- evasion of raising a child after a written warning issued by the criminal-executive inspection, and
- commission of a new crime during the deferment period.
It should be emphasized that the cancellation of the deferment, as well as the execution of the punishment, is possible only within the limitation periods for the conviction established in Article 83 of the Criminal Code. This means that if, simultaneously with the proclamation of the sentence, a deferment was granted for serving the sentence imposed for a crime of minor or medium gravity or for a serious crime, then after the expiration of the deferment, release from punishment in accordance with paragraphs “a”
“b” and “c” part 1 art. 83 of the Criminal Code is mandatory due to the statute of limitations of the conviction, which expires before the end of the deferment period. Thus, part 3 of Art. 82 of the Criminal Code has practical significance only in relation to persons convicted of especially serious crimes. If the reprieve was granted while serving the sentence, then after its expiration, replacing the unserved part of the sentence with a more lenient one is possible only if the duration of the deferment is less than the statute of limitations for the conviction.
As for the cancellation of the deferment on the grounds provided for in Part 2 of Art. 82 of the Criminal Code, then it is possible only within 2 years from the date of entry into force of the sentence imposed for crimes of minor gravity, 6 years for a sentence for crimes of moderate gravity and 10 years for a sentence for serious crimes.
If a person commits a new crime during the period of deferment, the punishment is imposed based on the totality of sentences.
