Comments on Article 80 of the Criminal Code of the Russian Federation
Replacing the unserved part of the sentence with a more lenient type of punishment is an unconditional type of release from criminal punishment, aimed at stimulating positive behavior on the part of the convicted person.
The essence of replacing the unserved part of the punishment with a more lenient type of punishment is that the convicted person, with proper behavior, without any conditions, can be early released from serving the main type of punishment by replacing the remaining unserved part of the punishment with a more lenient type. In this case, the person, at the discretion of the court, may be fully or partially released from serving an additional type of sentence. But it must be remembered that this is a right, not an obligation of the court.
For the correct application of the provisions of Article 80 of the Criminal Code of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 21, 2009 N 8 “On the judicial practice of conditional early release from serving a sentence, replacing the unserved part of the sentence with a milder type of punishment” is important.
Replacing the unserved part of the sentence with a milder type of punishment is an optional type of release from punishment, i.e. the resolution of the issue depends on the discretion of the court. For its use, conditions and grounds .
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All softening mechanisms in one palm
— below we have listed all the ways provided by law to mitigate criminal liability and punishment.
(Note to avoid confusion: here you can familiarize yourself with the mitigation mechanisms, but in addition to them there is a separate block not related to them, namely: Mitigating circumstances
, these are not mechanisms, but individual factors that can be used at any stage of the criminal process).
— no codes contain an exhaustive list of mitigation schemes, so we have compiled a single list, this is the most comprehensive selection of “peaceful” protection options. Peaceful, this means that they are not associated with the fight against the prosecution. Still, “military” defense options can be studied here: Significant violations
law, a list recognized by practice here:
9 judicial circles
of criminal proceedings, the entire range of appeals).
— absolutely all mitigation mechanisms provided by law are listed below, some of them will not suit you according to the category of crime (some mechanisms are not applicable to serious crimes
compositions).
- the other part - does not depend at all on the will of the convicted person, but can only be applied under the influence of external events (for example, Amnesty
).
- the value of this selection is that it frees you from the need to remember, sort through your memory “what else exists to mitigate?”, and so - look at the list below, and you can be sure that you will not miss any opportunity to mitigate.
BOOK-instructions
Please note: we have compiled a manual about five methods of release (out of the 24 listed below): How to get released
— instructions on the mechanisms of parole, replacement, overtime, release due to illness, in connection with children.
Exemption from criminal liability
(Chapter of the Criminal Code)
| 1 | Active repentance , conditions and mechanism for termination of the case | 75 CC |
| 2 | Reconciliation with the victim , conditions and mechanism for termination of the case | 76 CC |
| 3 | Exemption for economic reasons trains | 76.1 CC |
| 4 | Judicial fine , conditions and mechanism for termination of the case | 76.2 CC |
| 5 | Limitation periods crimes, release due to their expiration | 78 Criminal Code |
Exemption from punishment
(Chapter of the Criminal Code)
| 1 | Change of scenery , the possibility of release from punishment | 80.1 CC |
| 2 | Exemption from punishment by disease, conditions and mechanism | 81 CC |
| 3 | Limitation periods sentences, release due to their expiration | 83 CC |
Deferment of punishment
| 1 | Postponement of execution sentence due to illness | 398 Code of Criminal Procedure |
| 2 | Deferment for parents until the child reaches 14 years of age | 82 CC |
| 3 | Postponement due to threat grave consequences in accordance with the norm | 398 Code of Criminal Procedure |
| 4 | Deferment for patients drug addiction | 82.1 CC |
| 5 | Installment plan for criminal fine, practical recommendations | 398 Code of Criminal Procedure |
Remission of punishment after conviction
| 1 | Parole liberation | 79 Criminal Code |
| 2 | Substitution of punishment softer look | Part 1 80 Criminal Code |
| 3 | Replacement with forced ones work | Part 2 80 Criminal Code |
| 4 | Changing the view institutions (over-regime) | 78 PEC |
| 5 | Early withdrawal criminal record after serving a sentence | Part 5 86 Criminal Code |
Other mechanisms
We have listed these four mitigation methods in a separate list for this reason: they are not independent.
- that is: they can be asked for, for example, in a cassation appeal, but only among other arguments. But if you file a cassation appeal, in which there will only be a request to impose a punishment below the sanction of article ( 64 of the Criminal Code
) then such a complaint will not work.
You also cannot submit a separate independent application to reduce the category of the crime ( Part 6 15 of the Criminal Code
), usually this is simply pointless.
All four methods below are applied only through the mechanisms of appealing
the verdict.
| 1 | Change category crimes | Part 6 15 of the Criminal Code |
| 2 | Insignificance crimes, possibilities of termination of the case | Part 2 14 Criminal Code |
| 3 | Punishment below the lowest sanction provided for in an article of the Criminal Code | 64 CC |
| 4 | Conditional sentence , all aspects | 73 CC |
Mechanisms independent of the actions of the convicted person
These two methods of mitigation do not depend in any way on the will of the convicted person; he does not have the opportunity to influence them in any way through his actions. Whether there will be a relaxation of the law or an amnesty depends only on a lucky chance.
| 1 | Law changes mitigating the situation of the convicted person | Part 1 10 Criminal Code |
| 2 | Amnesty when can we expect it, who might it affect? | 84 Criminal Code |
Note
: There is another mitigation mechanism, but we didn't even include it in the list.
We are talking about pardon
. Why doesn't this mechanism have a place here? Because here we have listed real mitigations, that is, those that work in reality. And the pardon mechanism is intended exclusively to resolve political issues. There is simply no chance for an ordinary convict to receive a pardon).
In parallel with the mitigation mechanisms, it is possible to appeal the verdict
| Please note that most mitigation mechanisms are resolved through issues related to the execution of the sentence (397 Code of Criminal Procedure ). And these questions are completely parallel to the appeal mechanisms sentence. — we emphasize that these two mechanisms are precisely parallel to each other (that is, they do not intersect and are absolutely unrelated to each other), since documents are submitted to different authorities: Url Additional information: — 396 Code of Criminal Procedure courts resolving issues regarding the execution of a sentence A) on b) complaints in order to appeal a verdict are filed in other courts: courts - the court responsible for the second mechanism is not notified in any way that you have used one of these two mechanisms. - therefore, the following check makes sense to see if another mitigation option can be used: I). Checking whether you have completed all stages of appeal — check whether you have completed all stages of appeal; there are nine judicial stages in total. - you can check this using a special table, which clearly shows the entire appeal ladder, you can find it here: 9 judicial circles all stages of the criminal process, from first instance to revision due to new circumstances. Url Additional information: I). District Court of Cassation 1st stage of cassation: to the cassation court general jurisdiction ( II). Supreme Court II stage of cassation: to the Judicial Collegium of the Supreme Court ( clause 2, part 1 401.3 of the Code of Criminal Procedure ) III). Chairman of the Supreme Council III stage of cassation: To the Chairman of the Supreme Court ( Part 5 401.10 of the Code of Criminal Procedure ) — in particular, you need to check whether all three available attempts cassation. - sometimes it turns out that the convicted person does not realize the difference between these stages, and in fact, not all attempts have been exhausted. — therefore, we recommend studying this three-tier structure here: Three steps cassation, their features and specificity. II). If the entire appeal process has been completed Url Additional information: Exhaustion all attempts to appeal - how to go beyond these limits - if the entire line of appeal has been completed, then you can resort to one of the options for going beyond the stages of appeal, they are outside the framework of the criminal process, they cannot be found directly in the norms, but they exist, and in the circumstances of your case there may be loopholes for one of these ways. A selection of these methods can be found here: Exit methods beyond the limits outlined by the Code of Criminal Procedure. |
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Conditions for replacing the unserved part of the sentence with a more lenient type of punishment
The court has the right to replace only such basic types of punishment as detention in a disciplinary military unit, forced labor and imprisonment. The institution in question is not applicable to convicts serving other types of sentences.
The unserved part of the sentence may be replaced by a more lenient punishment after the person sentenced to imprisonment has actually served:
- crimes of minor or moderate gravity - at least 1/3 of the sentence;
- serious crime - not less than 1/2 of the sentence;
- especially serious crime - at least 2/3 of the sentence;
- crimes against the sexual integrity of minors, as well as crimes under Art. 210 of the Criminal Code of the Russian Federation - not less than 3/4 of the sentence;
- crimes against the sexual integrity of minors under 14 years of age - no less than 4/5 of the sentence.
The law does not establish a mandatory minimum term of imprisonment for serving, as provided for on parole (Part 4 of Article 79 of the Criminal Code of the Russian Federation), for applying a substitute punishment.
A person may also be fully or partially released from any additional type of punishment if the additional punishment has not been executed by the time of replacement.
The unserved part of the sentence in the form of imprisonment can be replaced by a more lenient type of punishment only after the convicted person has actually served part of the sentence, which depends either on the category or on the type of crime (Part 2 of Article 80 of the Criminal Code of the Russian Federation). The law does not provide for such a condition for detention in a disciplinary military unit and forced labor.
Mitigation of punishment during its execution in the history of Russian legislation
Provisions on mitigation of punishment began to be included in domestic criminal legislation in the process of searching for the most significant and socially acceptable measures for treating criminals, and the legislator’s departure from a purely punitive orientation in the fight against crime.
The first attempts to introduce mitigating measures into Russian criminal legislation during the period of serving a sentence were made at the beginning of the 20th century. Thus, according to the Charter on Exiles of Russia, all convicts were divided into probationers and those undergoing correction. After a certain period of time in the detachment of probationers, a person who “showed hope for correction, having proven obedience to his superiors, self-restraint, neatness and hard work,” was transferred to the detachment of those undergoing correction, in which his position was significantly easier, for example, he was allowed to live outside the prison, build a house for himself and etc.
In the first Soviet criminal legal acts, mitigation of punishment during its execution was regulated within the framework of conditional early release from serving the sentence. Therefore, until 1958, it was recognized as conditional. So in the decree of the Council of People's Commissars of the RSFSR dated March 21, 1921. “On deprivation of liberty and the procedure for parole of prisoners” stipulated that parole “is expressed either in complete release from punishment, or in the retention of forced labor without detention for the entire remaining term or part of it”1. In Art. 38 of the Basic Principles of the Criminal Legislation of the USSR and Union Republics and in Art. 3 Decree of the Presidium of the Supreme Soviet of the USSR of July 14, 1954 “On the introduction of conditional early release from places of detention.” Replacing the unserved part of imprisonment with another, milder punishment was interpreted as a type of parole, and therefore it was recognized as conditional in these legislative acts. A special section that regulated parole and, accordingly, the replacement of the unserved part of the sentence with a more lenient measure, was contained in the Correctional Labor Code of the RSFSR of 1933.
It is characteristic that in the first criminal legal acts the application of mitigation of punishment was not differentiated depending on the class affiliation of the convicted person. The replacement of the unserved part of the sentence with a more lenient measure, like parole in general, applied to all prisoners, regardless of their class affiliation, as well as the nature of the crime and recidivism of crimes. When deciding this issue, only the behavior of the convicted person was taken into account. The lack of a class approach was then attributed to the shortcoming of the decree of the Council of People's Commissars of the RSFSR of March 21, 1922.
In Art. 52 of the Criminal Code of the RSFSR of 1922. it also provided for the use of commutation of punishment in the direction of its mitigation in relation to persons serving imprisonment. In particular, it stated: “Parole may be applied to those serving a sentence of imprisonment or forced labor who have found correction.” And in Art. 53 of this Code actually provided for mitigation of punishment only in relation to persons serving imprisonment. “Parole,” it was stated in it, “is expressed either in complete release from the sentence being served, or in transfer to forced labor without detention for the entire remaining term of the sentence or part of it and is applied by the court that passed the sentence”1. Based on the wording of this article, we can conclude that in order to mitigate the punishment in the form of replacing the remaining part of the punishment, imprisonment could be replaced by forced labor, but the latter could not be replaced by another, some milder type of punishment. Those sentenced to forced labor could only be completely freed from serving them.
Since mitigation of punishment in the form of replacement according to the Criminal Code of the RSFSR of 1922 was recognized as conditional, the provisions of Art. 54 of this Code. According to it, if a person released early committed an identical or similar crime during the unserved term of his sentence, then the unserved part of the punishment was added to the punishment for a new crime by the verdict of the court that heard the case on charges of the latter, with the exception that the total term of imprisonment to be served should not exceed ten years." Thus, when adding up punishments for the totality of sentences, it was not the punishment determined by way of replacement (that is, not forced labor) that was taken into account, but the remaining unserved part of the replaced type of punishment, that is, imprisonment.
The Criminal Code provides two ways to mitigate punishment:
- appointment by the court of a punishment below the lower limit or a more lenient type of punishment than provided for by the sanction (Article 64 of the Criminal Code of the Russian Federation);
- establishing a lower upper limit for a more severe punishment than the sanction indicates (Article 62, Part 1 of Article 65, Article 66 of the Criminal Code of the Russian Federation).
In providing for mitigation of punishment under the first option of Art. 64 of the Criminal Code of the Russian Federation states that in the presence of exceptional circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime and other circumstances that significantly reduce the degree of public danger of the crime, as well as with the active assistance of a participant in a group crime in solving this crime, the punishment may be imposed below the lower limit provided for by the relevant article of the Special Part of the Criminal Code, or the court may impose a more lenient type of punishment than provided for by this article, or not apply an additional type of punishment provided for as mandatory. Part 2 Art. 64 of the Criminal Code of the Russian Federation indicates that both individual circumstances and a combination of such circumstances can be recognized as exceptional.
When assigning a punishment to a specific person, the court may come to the conclusion that imposing even the mildest type of punishment and the minimum amount specified in the sanction will be unfair. Therefore Art. 64 of the Criminal Code of the Russian Federation and provides for the possibility of its reduction.
However, the court does not have the right to impose a punishment below the minimum limit that is determined for this type of punishment by the article of the General Part of the Criminal Code. If, for example, the sanction provides for imprisonment for a term of 2 years or more, then the court, imposing a punishment using Art. 64 of the Criminal Code of the Russian Federation, may impose imprisonment for any period less than 2 years, but not less than 2 months, because such a minimum term of imprisonment is established by Part 2 of Art. 56 of the Criminal Code of the Russian Federation.
The courts had a question whether it was possible to impose a punishment below the lower limit if the sanction is alternative and provides for more lenient types of punishment than the one imposed using Art. 64 of the Criminal Code of the Russian Federation.
Literature:
- Criminal law. General and Special parts. Textbook. Ed. Kadnikova N. G. 2012. P. 273.
- Criminal law. General part (lecture notes). Smirnov M. M. 2011. P. 229.
- Criminal law. General part: Textbook / Ed. L. V. Inogamova-Khegai, A. I. Raroga, A. I. Chuchaeva. 2010. P. 432.
- Criminal law of Russia. Parts General and Special. Lecture course. Ed. Raroga A.I. 2011. P. 532.
- Criminal law. A special part. Textbook. Rep. ed. Kozachenko I. Ya., Novoselov G. P. 2012. P. 598.
- Krylova N. E. Criminal law - textbook. Kuznetsova N.F., Tyazhkova I.M., Borzenkova G.N., Komissarova V.S. - M.: Norma. 2010. P. 442.
- Criminal law of Russia (General part): Textbook. Diakonov V.V. // M. - 2011. P. 385.
Grounds for replacing the unserved part of the sentence with a more lenient punishment
The material basis for release is the behavior of the convicted person . One of the factors indicating positive changes in the behavior of the convicted person may be compensation for the harm (in whole or in part) caused by the crime. Therefore, the legislator sets compensation for harm as a mandatory condition for replacing the unserved part of the sentence with a more lenient one.
When assessing the behavior of a convicted person when considering the issue of replacing the unserved part of a sentence with a more lenient punishment, the court takes into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence, the attitude of the convicted person to the committed act and the fact that the convicted person partially or fully compensated for the damage caused. or otherwise make amends for the harm caused as a result of the crime. In relation to a convicted person suffering from a disorder of sexual preference (pedophilia), which does not preclude sanity, and who, at the age of over 18 years, has committed a crime against the sexual integrity of a minor under 14 years of age, the court also takes into account the application of compulsory medical measures to the convicted person, his attitude towards treatment and results of forensic psychiatric examination.
It is unacceptable to refuse to replace the unserved part of the sentence with a milder type of punishment on grounds not specified in the law, such as the presence of a previous criminal record, the leniency of the imposed punishment, the convict’s non-admission of guilt, the short duration of his stay in one of the correctional institutions, etc. Penalties imposed on the convicted person for the entire period of serving the sentence, taking into account the nature of the violations committed, are subject to assessment by the court in conjunction with other data characterizing it. At the same time, the presence or absence of a penalty on the convicted person cannot serve as either an obstacle or a basis for replacing the unserved part of the punishment with a more lenient type of punishment.
My own lawyer
Article 105. Murder
1. Murder, that is, intentionally causing the death of another person, -
shall be punishable by imprisonment for a term of six to fifteen years, with or without restriction of freedom for a term of up to two years.
2. Murder:
a) two or more persons;
b) a person or his relatives in connection with the performance of official activities by this person or the performance of public duty;
c) a minor or another person who is known to be in a helpless state by the perpetrator, as well as associated with the kidnapping of a person;
d) a woman who is known to be pregnant by the perpetrator;
e) committed with particular cruelty;
f) committed in a generally dangerous manner;
e_1) based on blood feud;
g) committed by a group of persons, a group of persons by prior conspiracy or an organized group;
h) for mercenary reasons or for hire, as well as associated with robbery, extortion or banditry;
i) for hooligan reasons;
j) with the aim of concealing another crime or facilitating its commission, as well as involving rape or violent acts of a sexual nature;
k) for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity towards any social group;
l) for the purpose of using the victim’s organs or tissues, -
n) The clause has lost force since December 11, 2003 - Federal Law of December 8, 2003 No. 162-FZ - see the previous edition -
shall be punishable by imprisonment for a term of eight to twenty years with restriction of freedom for a term of one to two years, or life imprisonment, or the death penalty.
Article 15. Categories of crimes
1. Depending on the nature and degree of public danger, the acts provided for by this Code are divided into crimes of minor gravity, crimes of medium gravity, serious crimes and especially serious crimes.
2. Crimes of minor gravity are recognized as intentional and careless acts, for the commission of which the maximum punishment provided for by this Code does not exceed three years of imprisonment.
3. Crimes of average gravity are recognized as intentional acts, for the commission of which the maximum penalty provided for by this Code does not exceed five years of imprisonment, and careless acts, for the commission of which the maximum penalty provided for by this Code exceeds three years of imprisonment.
4. Grave crimes are intentional acts, for the commission of which the maximum punishment provided for by this Code does not exceed ten years of imprisonment.
5. Particularly serious crimes are intentional acts, the commission of which is punishable by this Code in the form of imprisonment for a term of more than ten years or a more severe punishment.
6. Taking into account the actual circumstances of the crime and the degree of its public danger, the court has the right, in the presence of mitigating circumstances and in the absence of aggravating circumstances, to change the category of the crime to a less serious one, but not more than one category of crime, provided that for committing the crime specified in part three of this article, the convicted person is sentenced to a sentence not exceeding three years of imprisonment, or another more lenient punishment; for committing a crime specified in part four of this article, the convicted person is sentenced to a punishment not exceeding five years of imprisonment, or another more lenient punishment; for committing a crime specified in part five of this article, the convicted person is sentenced to a punishment not exceeding seven years of imprisonment.
Article 79. Conditional early release from serving a sentence
1. A person serving detention in a disciplinary military unit, forced labor or imprisonment is subject to parole if the court recognizes that for his correction he does not need to fully serve the sentence imposed by the court, and has also compensated for the damage (in whole or in part) ), caused by a crime, in the amount determined by a court decision. In this case, the person may be fully or partially released from serving an additional type of punishment.
2. When applying conditional early release, the court may impose on the convicted person the duties provided for in part five of Article 73 of this Code, which must be fulfilled by him during the remaining unserved part of the sentence.
3. Conditional early release can be applied only after the convicted person has actually served:
a) at least one third of the sentence imposed for a crime of minor or medium gravity;
b) at least half of the sentence imposed for a serious crime;
c) at least two-thirds of the term of punishment imposed for a particularly serious crime, as well as two-thirds of the term of punishment assigned to a person previously released on parole, if parole was canceled on the grounds provided for in part seven of this article;
d) at least three quarters of the sentence imposed for crimes against the sexual integrity of minors, as well as for grave and especially grave crimes related to the illicit trafficking of narcotic drugs, psychotropic substances and their precursors, as well as for crimes provided for in Articles 205, 205.1, 205.2, 205.3, 205.4, 205.5, 210 and 361 of this Code;
e) at least four-fifths of the sentence imposed for crimes against the sexual integrity of minors under fourteen years of age.
4. The term of imprisonment actually served by the convicted person cannot be less than six months.
4.1. When considering a convicted person’s request for conditional early release from serving a sentence, the court takes into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence, including available incentives and penalties, the attitude of the convicted person to the committed act and the fact that the convicted person is partially or fully compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime, as well as the conclusion of the administration of the correctional institution on the advisability of his parole. In relation to a convicted person suffering from a disorder of sexual preference (pedophilia), which does not exclude sanity, and who, at the age of over eighteen years, has committed a crime against the sexual integrity of a minor under fourteen years of age, the court also takes into account the application of compulsory medical measures to the convicted person, his attitude towards treatment and results of forensic psychiatric examination.
5. A person serving a life imprisonment may be released on parole if the court finds that he does not need to further serve this sentence and has actually served at least twenty-five years of imprisonment. Conditional early release from further serving of life imprisonment is applied only if the convicted person has not committed malicious violations of the established procedure for serving the sentence during the previous three years. A person who commits a new grave or especially grave crime while serving a life imprisonment is not subject to parole.
6. Control over the behavior of a person released on parole is carried out by an authorized specialized state body, and in relation to military personnel - by the command of military units and institutions.
7. If during the remaining unserved part of the sentence:
a) the convicted person has committed a violation of public order, for which an administrative penalty was imposed on him, or has maliciously evaded the fulfillment of the duties assigned to him by the court when applying parole, as well as compulsory medical measures prescribed by the court, the court, on the proposal of the authorities, specified in part six of this article, may decide to cancel parole and execute the remaining unserved part of the sentence;
b) the convicted person has committed a crime through negligence or an intentional crime of minor or medium gravity, the issue of canceling or maintaining parole is decided by the court;
c) the convicted person has committed a serious or especially serious crime, the court imposes punishment on him according to the rules provided for in Article 70 of this Code. According to the same rules, punishment is imposed in the case of a crime committed through negligence or an intentional crime of minor or medium gravity, if the court revokes parole.
Article 80. Replacement of the unserved part of the punishment with a more lenient type of punishment
1. For a person serving detention in a disciplinary military unit, forced labor or imprisonment, who has compensated for the damage (in whole or in part) caused by the crime, the court, taking into account his behavior during the entire period of serving the sentence, may replace the remaining unserved part of the sentence with a more lenient punishment. . In this case, the person may be fully or partially released from serving an additional type of punishment.
2. The unserved part of the sentence may be replaced by a more lenient punishment after the person sentenced to imprisonment has actually served for committing:
crimes of minor or moderate gravity - at least one third of the sentence;
serious crime - at least half of the sentence;
especially serious crime - at least two-thirds of the sentence;
crimes against the sexual integrity of minors, as well as crimes provided for in Article 210 of this Code - at least three quarters of the sentence;
crimes against the sexual integrity of minors under fourteen years of age - no less than four-fifths of the sentence.
3. When replacing the unserved part of the sentence, the court may choose any milder type of punishment in accordance with the types of punishments specified in Article 44 of this Code, within the limits provided for by this Code for each type of punishment.
4. When considering a petition from a convicted person or a submission from the administration of an institution or body executing a sentence to replace the unserved part of his sentence with a milder form of punishment, the court takes into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence, the attitude of the convicted person to the committed act and that the convicted person partially or fully compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime. In relation to a convicted person suffering from a disorder of sexual preference (pedophilia), which does not exclude sanity, and who, at the age of over eighteen years, has committed a crime against the sexual integrity of a minor under fourteen years of age, the court also takes into account the application of compulsory medical measures to the convicted person, his attitude towards treatment and results of forensic psychiatric examination.
Thus, only after serving 2/3 of the term.
Petition to replace the unserved part of the sentence with a more lenient one
The convicted person himself, as well as his lawyer (legal representative), can apply to the court to replace the unserved part of the sentence with a more lenient one. The administration of the institution executing the sentence in which the convicted person is serving his sentence submits to the court a proposal to replace the unserved part of the sentence with a more lenient one.
The replacement of the unserved part of the sentence with a more lenient form is carried out by the court at the place of serving the sentence being replaced, upon the proposal of the institution or body executing it. At the same time, this provision does not prevent the convicted person from filing a petition with the court to replace the unserved part of the sentence with a more lenient one.
If the court refuses to replace the unserved part of the sentence with a milder type of punishment, the repeated submission of the corresponding petition or presentation to the court may take place no earlier than six months from the date of the court’s decision on refusal (Article 175 of the Penal Code of the Russian Federation).
Choosing the type of punishment when replacing the unserved part of the sentence
When replacing the unserved part of the sentence, the court may choose any milder type of punishment in accordance with the types of punishments provided for in Art. 44 of the Criminal Code of the Russian Federation. The choice of a specific type of punishment depends on whether it is possible to achieve with its help the goals of restoring social justice, correcting the convicted person and preventing the commission of new crimes. In this case, the court is guided by the terms or amounts established by the Criminal Code of the Russian Federation for each of the specified types of punishment.
The replacement of the unserved part of the sentence with a more lenient punishment is final.
When replacing the unserved part of a sentence, it is necessary to take into account other general conditions associated with the assignment of a particular type of punishment. In this regard, for example, imprisonment for a certain period of time assigned to a person who is a disabled person of the first group cannot be replaced by a more lenient type of punishment - correctional labor.
Malicious evasion from serving the remainder of the sentence
If the sentence of imprisonment imposed on the convicted person was replaced in accordance with Art. 80 of the Criminal Code of the Russian Federation with a restriction of freedom, from serving which he maliciously avoided, the court, on the proposal of the Criminal Investigation Inspectorate, is considering the issue of replacing this punishment with imprisonment (Part 5 of Article 58 of the Penal Code of the Russian Federation).
If the convicted person maliciously evades serving the remaining part of the sentence, replaced by a milder type of punishment on the basis of Article 80 of the Criminal Code of the Russian Federation, the type of correctional institution is assigned to the one that was previously determined by the 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.
