List of basic conditions for release on parole

When is parole applied?

In accordance with Part 1 of Article 79, the following types of sentences may be released early from serving:

referral to a disciplinary military unit;
forced labor;
imprisonment.

Any convicted person can ask to be released early if he has served a certain part of his sentence:

1/3 of the sentence - for crimes of minor or moderate severity (for example, insult, theft) (what to do if your boss yells and humiliates you - read here)
½ term – for a serious crime (causing serious bodily harm);
2/3 of the sentence is for a particularly serious crime (aggravated murder), the same amount must be served by prisoners who have previously been released on parole and committed a new crime during this time;
¾ of the term - for certain categories of crimes provided for in paragraph “d”, part 3, article 79 of the Criminal Code (drug trafficking, etc.);
4/5 of the term - for crimes against the sexual integrity of children under 14 years of age.

In any case, the total term of the sentence served cannot be less than six months.

My own lawyer

At the end of last year, the Plenum of the Supreme Court of the Russian Federation adopted resolution No. 511 dated November 17, 2015, which contains a number of new positions on the application of the norms of the Criminal Code of the Russian Federation on parole and the replacement of the unserved part of the sentence with a more lenient type of punishment. Basically, the changes were made to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 21, 2009 No. 8 “On the judicial practice of parole from serving a sentence, replacing the unserved part of the sentence with a milder type of punishment.

In connection with the amendments made to Art. Art. 79 and 80 of the Criminal Code of the Russian Federation regarding the conditions for release from punishment, paragraph 1 of Resolution No. 8 was supplemented with paragraph. 2. It draws the attention of the courts to the need to take into account the provisions of Art. 10 of the Criminal Code of the Russian Federation and apply the new law providing for an increase in the part of the sentence subject to mandatory serving only in relation to those convicted who committed a crime after the entry into force of the new criminal law. This approach directly follows from the provisions of Art. 10 of the Criminal Code that a new criminal law that worsens the situation of a convicted person does not have retroactive effect.

In paragraph 2 of Resolution No. 8 from para. 1 the word “superior” (court) is excluded. This was done for the reason that, on the basis of Art. 10 of the Criminal Code of the Russian Federation, the punishment can be commuted not only by a higher court, but also by a district (garrison military court) at the place of execution of the sentence in the manner established by Art. 397, 399 Code of Criminal Procedure of the Russian Federation.

In paragraph 2 of paragraph 2 of Resolution No. 8, it is now explained that the terms of actual serving of the sentence (the longest) are determined not by the severity of the crime committed, but by the nature of its social danger.

Clause 5 has been excluded from the text of the current resolution. It explained that even if the convicted person had actually served the legally prescribed part of the sentence in accordance with Part 3 of Art. 79 and part 2 of Art. 80 of the Criminal Code of the Russian Federation, then this cannot serve as an unconditional basis for parole or replacing the unserved part of the punishment with a more lenient type of punishment. The decision to exclude this paragraph from Resolution No. 8 was due to the fact that the explanations contained in it were enshrined in the current law. More precisely, in Part 4.1 of Art. 79 and part 4 of Art. 80 of the Criminal Code of the Russian Federation. These norms provide that, for example, in relation to a convicted person suffering from pedophilia, which does not preclude sanity, the court does not take into account his attitude to treatment and the results of a forensic psychiatric examination.

New paragraphs have also been added to paragraph 6 of Resolution No. 8. The need for additions was due to the fact that the courts, denying parole to a person who has served part of the term specified in Part 3 and Part 4 of Art. 79 of the Criminal Code, often refer to the gravity of the crime committed. However, this approach is not based on law. Therefore, it was clarified that the nature, severity and consequences cannot be grounds for refusing to satisfy a request or application for parole or a change of sentence, since the degree of gravity of the committed act, which is determined, including taking into account its consequences, has already served as criteria for establishing the deadlines specified in Art. 79, 80 and 93 of the Criminal Code of the Russian Federation. In addition, in each specific case, these circumstances must be taken into account in the verdict when assigning punishment to the defendant.

Paragraph 6 of Resolution No. 8 provides an explanation that when assessing the behavior of a convicted person, courts should take into account the entirety of available data. At the same time, the mere presence of penalties against a convicted person, including for repeated violations, should not be regarded by the court as an unconditional basis for refusing to satisfy a request for parole. Courts must take into account information about these circumstances in conjunction with other data characterizing the convicted person.

Very important is the issue of a differentiated approach to assessing the penalties available to a convicted person, taking into account the specific circumstances of each violation committed by the convicted person, its severity and nature. At the same time, the Plenum emphasized that penalties imposed for the entire period of serving the sentence, and not just for the time immediately preceding the consideration of the petition or presentation, are subject to recording.

The new edition contains clause 7 of Resolution No. 8. This was caused by the changes made to Art. 79 and 80 of the Criminal Code of the Russian Federation Federal Law dated December 28, 2013 No. 432-FZ4. According to the amendments, a convicted person may be released on parole or the unserved part of his sentence may be replaced by a more lenient punishment, subject to compensation for the damage (in whole or in part) caused by the crime in the amount determined by a court decision.

It should be noted that the courts previously took into account the fact of compensation for harm when deciding the issue of parole. This circumstance to a certain extent characterizes the attitude of the convicted person to the crime. However, the direct enshrinement in the law of compensation for harm (in whole or in part) as one of the grounds for exemption from punishment has necessitated the need to clarify the previously given clarifications.

Thus, paragraph 7 states that the court does not have the right to refuse parole if it finds that the convicted person took measures to compensate for the harm caused by the crime (material damage and moral harm), but due to objective reasons the harm was compensated only in an insignificant amount.

In connection with the change in Part 3 of Art. 396 of the Code of Criminal Procedure of the Russian Federation, paragraph 13 of Resolution No. 8 is stated in a new way. It is indicated that issues of parole are resolved at the location of the institution executing the punishment, in accordance with Art. 81 Penal Code of the Russian Federation. Subject to the provisions of Art. 16 of the Penal Code of the Russian Federation, it is impossible to consider such petitions at the location of the pre-trial detention center to which the convicted person was transferred on the basis of Art. 77.1 Penal Code of the Russian Federation.

However, the prescription of Part 3 of Art. 396 of the Code of Criminal Procedure of the Russian Federation should in no way prevent an application to the court with a petition for parole or a petition or submission to replace the sentence in relation to a convicted person transferred to a pre-trial detention center in the manner prescribed by Art. 77.1 Penal Code of the Russian Federation. Therefore, paragraph 13 of Resolution No. 8 now contains an indication that such a petition must be sent to the court at the location of the institution executing the sentence from which the convicted person was transferred to the pre-trial detention center.

Clause 16 of Resolution No. 8 has been supplemented with a new paragraph. It follows from it that the court should not refuse to satisfy a petition for parole or a commutation of punishment if the convicted person, his legal representative or lawyer made such petitions earlier than the period provided for in the Criminal Code of the Russian Federation for serving part of the sentence. Such a refusal, in fact, would lead to the fact that a repeated appeal to the court by these persons on the same issue could not take place earlier than after 6 months (Part 10 of Article 175 of the Penal Code of the Russian Federation). Therefore, it is clarified that in such cases the court must make an order refusing to accept the petition and return it to the applicant.

The participation of the victim when the court considers applications for parole and commutation of punishment is now covered by clauses. 14, 18 and 19. There was a need to clarify to the courts the issue regarding the role of the victim in the court hearing, his legal representative or representative. In this regard, in para. 2, paragraph 19 of Resolution No. 8 specifies the procedure for the court hearing, within the framework of which issues regarding parole are resolved. It is emphasized that after examining the presented materials, the court listens to the explanations of the persons who appeared at the court hearing, including the victim, his legal representative or representative. Thus, the victim is ensured the right to convey to the court his position on the issue under consideration.

The decision to release from punishment, like any court decision, must be legal, justified and motivated, and contain detailed justification for the conclusions that the court came to as a result of considering such a petition. The attention of the courts is drawn to this in paragraph 20 of Resolution No. 8. It is supplemented by an indication that in the event of a refusal to satisfy a petition or presentation, the court decision must indicate specific factual circumstances that exclude the possibility of parole or replacing the unserved part of the sentence with a more lenient punishment. The court cannot draw conclusions about the existence of such circumstances based on information not verified at the court hearing. As an example, such circumstances could include the results of an operational investigation that was not verified in court, obtained and presented in violation of the requirements of Art. 89 Code of Criminal Procedure of the Russian Federation.

Particular attention should be paid to the content of paragraph 24 of Resolution No. 8. It concerns the issue of exemption from serving a sentence due to illness of a person who fell ill with a serious illness after committing a crime.

According to Part 2 of Art. 81 of the Criminal Code of the Russian Federation, a serious illness of a convicted person is the basis for release from serving his sentence, provided that such illness makes it impossible for him to serve his sentence. It should be said that the criminal law does not connect the resolution of this issue with any conditions other than the presence of the disease itself. Including the possibility of providing medical care in medical institutions of the penitentiary system.

In the previous version of paragraph 24 of Resolution No. 8, courts were recommended to establish and evaluate other circumstances. In particular, the behavior of the convicted person, whether he has a permanent place of residence, and persons who can and agree to care for him. But this approach is not entirely consistent with the statutory grounds.

Therefore, according to the new wording of paragraph 24, when deciding on the release of a person from punishment due to illness, the determining factor is the determination by the court that the convicted person has a serious illness that prevents him from serving his assigned sentence. When considering a petition from a convicted person, the court must evaluate the medical report of a special medical commission or a medical and social examination institution, taking into account the List of diseases that prevent the serving of a sentence (approved by Decree of the Government of the Russian Federation of 02/06/2004 No. 54) 6, as well as other circumstances relevant to the resolution petitions on the merits.

Other changes to Resolution No. 8 are of a so-called technical nature. Following changes in legislation, certain provisions have been clarified. For example, currently convicted persons, their lawyers and legal representatives have the right to file a petition to replace the unserved part of the sentence with a more lenient punishment. Previously, only the administration of the correctional institution had this right. Corresponding clarifications were included in the resolution of the Plenum.

The authors of the publication, as the main developers of the draft resolution, express the hope that the new positions and approaches reflected in the resolution of the Plenum will significantly influence the situation with the use of parole for convicts who have proven their correction.

Who can apply for parole

Absolutely any convicted person who has served the above-mentioned sentence can submit a petition, but not every petition will be granted. Convicts who:

are positively characterized by the place of serving the sentence, have not committed violations of the procedure for serving the sentence;
participated in public life at the place of detention;
worked or studied diligently while serving their sentence;
were awarded by the administration of the correctional institution for providing assistance;
have stable connections in the outside world: relatives, friends, loved ones;
fully compensated the damage to the victim or his relatives.

Don't wake the beast

In fact, many victims can be understood. Reminders of events that have already begun to be forgotten, sometimes tragic, can bring not only unpleasant memories, but also real problems.

As an example, we can cite the case of a Novosibirsk pedophile pornographer, in which more than two hundred of his victims, who had matured by that time, received notices of the upcoming court hearing. Many girls made a lot of efforts to forget what happened, find their place in society again, make friends and start a family. The husbands of many of them knew nothing about the past of the “Siberian mice.” After court summonses and letters of apology from the convict, some families broke up; husbands could not accept the girls’ terrible past.

What kind of reaction can you expect from them at trial? Are they ready to forgive a person who continues to affect their lives even a decade after the crime? In this situation, the victims’ opinion about parole and the NBM may turn out to be fatal. Moreover, many crime victims consciously make efforts to ensure that the convicted person stays in prison and suffers more.

How to apply for parole

Additional information
The petition can be drawn up either by the criminal himself or by his lawyer. Parents can submit an application for convicted minors.

Every convicted person who wishes to be released from punishment ahead of schedule must write a corresponding application. A sample application for parole from a convicted person is not established by law, but it should reflect all the points that prove the person’s correction.

The petition is addressed to the same court that pronounced the sentence against the convicted person. It is submitted through the administration of the colony, which sends it to the addressee within 10 days. The following must be attached to the application:

a copy of the court verdict (officially certified by the court);
characteristics from the place of serving the sentence;
payment and other documents confirming compensation for material damage (if it was caused by a crime).

If these documents are not available, the petition must ask the court to make an appropriate request to obtain them. Other documents are attached upon request.

After receiving the petition, the judge requests the criminal case from the archive and studies it together with the received documents.

Please note that exemption from criminal punishment does not mean exemption from criminal liability. However, for some reasons, a citizen can absolve himself of responsibility in a criminal case. This happens in case of amnesty, expiration of statute of limitations, and so on. Read more in this article https://lexconsult.online/8615-varianty-osvobozhdeniya-ot-ugolovnoi-otvetstvennosti

Victims against parole and ZNBM

Victims in criminal proceedings are always victims. They themselves suffered from the actions of the convicted person or lost loved ones. The trial was a difficult process for them, which for a long time did not give them the opportunity to breathe out and get distracted. And now the criminal is punished, people are just beginning to come to their senses a little, when a call rings or a telegram arrives from the court - the culprit of the trouble is about to be released.

Before the appointed term, sometimes without having served even half of the term (those convicted of an accident, for example, can file a petition already a third of the term). How? Why? Not fair! It is completely natural to be against the release of your procedural opponent, because the court imposed a fair punishment, for what merits did they now decide to release the person earlier? The victims are angry and want to do something. In this situation, what might be the opinion of the victims about parole?

The court's decision

Based on the results of consideration of the petition, the court may release the convicted person from the remaining sentence or refuse to satisfy his request.

In the first case, the convicted person is subject to release while maintaining supervision over him by the penal authorities. Control continues until the criminal record is expunged or expunged.

A criminal record is expunged after the expiration of the terms specified in Article 86 of the Criminal Code of the Russian Federation: from 6 months after punishment not related to imprisonment to 10 years after punishment for especially serious crimes. We will tell you more in a separate article https://lexconsult.online/9100-ustanovlennye-zakonom-sroki-pogasheniya-snyatiya-sudimosti

If the convicted person is released early, the terms may be calculated differently depending on the type of parole:

With full parole, when a person is released from the main and additional punishment, the criminal record begins to be expunged immediately after leaving the colony.
With partial parole, when the additional punishment remains, the criminal record will begin to expire only after it has been served.

The court may remove the criminal record from a person released on parole immediately upon application of parole or after some time. This is possible if a person has proven by his behavior his desire for a respectable lifestyle.

Parole Court

Be sure to demand participation in the parole procedure, since explanations must be given to the collected material in court, and the court often has questions regarding the personal life of the convicted person, the answers to which can only be given by someone who is in a direct close relationship with the convicted person. The answers to these questions play an important role for a positive outcome of the case. You can win a parole trial in Nizhny Tagil or another city in the Sverdlovsk region.

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Serving a sentence after parole

The procedural procedure for conditional early release from punishment provides for the return of the convicted person to actually serving his sentence under the following circumstances:

While at large, the released person has committed an administrative offense or does not comply with the obligations imposed on him by the court (for example, to get a job or recover from alcoholism).
Committed a crime before the expiration of his sentence. In this case, the court, choosing the measure of responsibility for a new crime, adds in whole or in part the unserved punishment for the previous offense.

Who can initiate parole?

It must be remembered that an application for parole can be submitted by:

the convicted person himself (the convicted person’s request for parole is in full force and must be considered on time)
lawyer for the convicted person
legal representative of the convicted person
administration of the colony where the person is serving his sentence

In this regard, an application submitted, for example, by the sister or mother of an adult convicted person will not be considered, and you will waste a lot of effort in vain to help your loved one who finds himself in an unfavorable situation. Find out more at a consultation with a criminal lawyer about the parole procedure.

Revenge or justice?

Let's consider an example from judicial practice. By a decision of the Kalininsky District Court of St. Petersburg (popularly known as “Kalsud”), the convict was denied a request to replace the unserved part of the sentence with a more lenient punishment. At the same time, both the prosecutor and the representative of the administration of the colony settlement supported the petition. The victim objected, which apparently became the determining factor in making a decision in the case.

At the last minute, the victim filed a civil claim for compensation for moral damages. At the same time, he not only ignored the attempts of the convicted person to make payments voluntarily, but also deliberately sabotaged them - he did not respond to the letter of apology, and did not provide details for transferring money.

Desperate to reach an agreement, the convict asked his parents to transfer to the victim a significant amount for his family by postal order to the address indicated in the indictment. The recipient did not accept the transfer and the money was returned.

At the time of consideration of the petition, the institution had not yet been presented with a writ of execution; penalties in favor of the victim had not begun due to his own actions, which he did not even deny at the court hearing. He directly stated that he is a wealthy person, he is not interested in money, and with the help of a lawsuit he only wants to extend the punishment.

The convicted person is employed in the colony, makes attempts to make amends, and is characterized positively. His petition, we recall, was supported by both the institution and the prosecutor’s office.

The court refused to commute the sentence to a more lenient one on formal grounds. Of course, the judge did not directly indicate the opinion of the victim as decisive, but no other arguments were significant for making a positive decision. Moreover, by excluding from the text of the decision the word “only”, used by the judge several times, you can obtain a decision to satisfy the petition.

And just a few weeks before this trial, another incident occurred in the same court. The convict's request for parole was granted with the support of all participants in the process, except for the victims. At the same time, their claims were fully satisfied. To extend the imprisonment, the victims filed an appeal, and the convicted person (having fully paid the claim of several million rubles) remained in prison to await the consideration of the appeal. The document was drawn up carelessly. Obviously, the victims understand that they will be refused - they are simply stalling for time to punish the person again.