Article 80 of the Criminal Code of the Russian Federation: replacement of the unserved part of the punishment with a more lenient form

Article 80 of the Criminal Code of the Russian Federation provides for the replacement of punishment (more precisely, the part that has not been served) with a more lenient type of punishment. Certain conditions that are prescribed in legislative acts must be met.

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Characteristic

The laws provide for the possibility of replacing part of the sentences not served by offenders. The measure in question extends its effect to persons who are sentenced to serve repressive measures, represented by forced labor, imprisonment, as well as being in military units that have a disciplinary bias.

The use of other measures of influence is permissible after a number of conditions are met, in particular:

The court makes such a decision.
The behavior of the convicted person must be taken into account. Pay attention to the entire period during which the convicted person served his sentence.
The change is towards softening.
The damage caused by the criminal act is compensated. This applies to both full and partial refunds.
They will replace the part of the sentence that the person has not served.

It is worth paying attention to the fact that, according to Art. 80 of the Criminal Code of the Russian Federation, a criminal cannot be exempted from repressive provisions that have additional meaning. This applies to both full and partial exemption.

A separate category - acts directed against the sexual integrity of persons under the age of 18 - 3/4 of the time established by the competent authority has been served. If the victim in this category of cases has not reached the age of 14 years at the time of commission, then the period is equal to 4/5 of the total applied.

Replacement of punishment is carried out taking into account the provisions of the criminal law. In particular, Article 44 of the Criminal Code is taken into account. They can choose any type of sanctions that will be milder compared to what the person is already serving. The article in question, Article 80 of the Criminal Code of the Russian Federation, says that prisoners must submit a petition. It is addressed to the authorities that perform the functions of implementing educational measures or the administration of the institution where the offender is kept.

The person’s behavior will be taken into account, as well as how conscientious the attitude towards work is. An assessment is also given to the attitude of the offender towards the act he committed.

The unserved part of the sentence is replaced after the offender has served his share of the sanction. At the same time, each category of criminal acts has its own period. For example, if an act of minor or moderate gravity has been committed, then no less than 1/3 of the time specified in the sentence must be served. As for serious acts, the legislator establishes a requirement for serving 1/2 of the part, while for especially serious acts a period of 2/3 is prescribed.

Another comment on Art. 80 of the Criminal Code of the Russian Federation

1. This type of exemption from punishment is applied at the discretion of the court in relation to persons serving imprisonment, as well as detention in a disciplinary military unit or forced labor, taking into account their behavior during the period of serving the sentence. Replacing the unserved part of the sentence with a more lenient form is permissible only in relation to positively characterized convicts.

2. A convicted person serving imprisonment may be presented for replacement of the unserved part of the sentence no earlier than after serving a certain part of the term of imprisonment assigned to him. When replacing detention in a disciplinary military unit, the actual part of the sentence served can be any.

3. As with parole, when replacing the unserved part with a milder type of punishment, the convicted person may be fully or partially released from serving an additional type of punishment (see commentary to Article 79 of the Criminal Code of the Russian Federation).

4. When making a replacement, the court has the right on the basis of Art. 44 of the Criminal Code of the Russian Federation, choose any milder type of punishment applicable to a particular convicted person. When determining its term, the court must be guided by the general limits established for each type of punishment (Article 46, - 55 of the Criminal Code of the Russian Federation).

5. Replacement of the unserved part of the sentence with a milder 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 (part 3 of article 175 of the Penal Code of the Russian Federation, part 3 of article 396, paragraph 5 of part 1 of article 399 Code of Criminal Procedure of the Russian Federation). It should, however, be taken into account that these norms do 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 (Definition of the Constitutional Court of the Russian Federation of October 20, 2005 N 388-O).

A comment

The Plenum of the Supreme Court, as well as the provisions of the criminal legislation, provide that, as grounds for releasing a person from being in correctional facilities, a measure is provided in the form of replacing the unserved term with a milder type of repressive measures. Application of this rule, in accordance with Part 1 of Art. 80 of the Criminal Code will be considered acceptable only in a situation where a number of conditions are met. These conditions are expressly stated in the law.

Before an official comes to a conclusion about the possibility of changing repressive measures, he analyzes several factors. This includes assessing how the applicable type of repression affected the convicted person. For example, his participation in work activity is taken into account, as well as his attitude towards it, etc. The entire period of a person’s stay in a correctional institution is taken into account, and not a specific time. It is also taken into account whether a person can become non-dangerous to society if a more lenient type of correctional provisions is assigned to him. In particular, these are fines, restrictions and other measures of influence.

The legislator indicates that depending on the severity of the act committed, the period that must be served by the offender will be calculated. In this case, attention is paid to the sanction of the article applicable to the criminals, as well as the established period. It is indicated that a more severe type of sanctions cannot be applied, only milder ones than those that are already being served.

The time of departure is established from the moment the court verdict came into force. Ends with the day the decision is made, according to which part of the period is replaced with a more lenient measure.

If a situation arises where the applied measure has already been mitigated by:

amnesty act;
court decision;
decree of pardon.

In the resolution, when applying corrective measures for committing another offense, the share replaced by a mitigated version is not added.
This applies to those persons for whom repressive measures were replaced with mild ones. However, the part that has not been served is added. The following procedure for considering this issue is provided: the prisoner himself must draw up a petition for mitigation of measures of influence, after which he submits the document to the administration of the institution where he is being held. You can also visit with this request the authorities that perform correctional functions. The listed bodies send a resolution to the court to consider this issue. The procedure itself is regulated by current legislation.

The portion of the period that was actually served by the convicted person is subject to accounting. A similar principle applies in relation to the application of rules on parole. Part 2 of the commented article does not mean that the replacement is not automatic, that is, certain conditions must be met. The first thing the court pays attention to is whether there are any positive changes in a person’s behavior. In addition, it is important whether the convicted person will complete his correction if a more lenient measure is applied to him.

The commentary suggests that amendments were made to the law, according to which the provisions on replacing repressive measures with mild ones for offenders who have not reached the age of eighteen are no longer in force. These adjustments were made in 2001.

When a judicial body refuses to replace correctional measures with others, the date for a new consideration of this issue can be applied no earlier than six months from the date of this meeting. This rule applies to persons who are serving the specified measure in a disciplinary unit. If we are talking about deprivation of liberty, then a person can again apply for a mitigation of the sanction a year after this meeting.

The legal consultant explains that those positions have a softened educational impact; if you look at the code, in Article 44 they should be located one line higher than what the offender is already serving. The absence of a positive description of the perpetrator is the basis for the court to refuse to replace the unserved sentence with a commuted one.

When considering this issue, the judge is guided by rules that have general significance. They are established separately for all types of repressive measures. A petition is submitted at the place where the preventive measure is served. Article eighty-one of the Criminal Code provides for such a basis for exemption from educational provisions as illness; one can also talk about deferring the applicable provisions of the itr.

Article 80. Replacement of the unserved part of the punishment with a more lenient type of punishment

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 14, 2018 N 51-o18-2 The current state of health of the convicted person can be taken into account when deciding issues of parole from serving a sentence, replacing the unserved part of the sentence with a more lenient type of punishment, or exemption from punishment due to illness (if there are grounds) in accordance with Art. Art. , , Criminal Code of the Russian Federation.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 08.08.2019 N 53-APU19-14

Request from I.A. Khovrich the replacement of the unserved part of the sentence with a more lenient type of punishment cannot be considered on the merits by the court of appeal when checking the legality and validity of the sentence that has not entered into legal force, since these issues, in accordance with Art. The Criminal Code of the Russian Federation and 397 of the Code of Criminal Procedure of the Russian Federation are resolved by the court when executing the sentence.

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 17, 2019 N 74-UD19-4

Taking into account the above data, as well as the fact that Starostina M.V. committed a crime of minor gravity for the first time, fully admitted guilt in the crime, is young, actively contributed to the detection and investigation of the crime, gave birth to a child, is raising him, more than two years have passed since the commission of the crime, the Judicial Board finds that due to a change in the situation, Starostina M. V., as a person who committed this crime, has ceased to be socially dangerous and is subject to release from the punishment imposed on her under Part 1 of Art. 109 of the Criminal Code of the Russian Federation in the form of corrective labor for a period of 1 year, with the deduction of 15% from her earnings to the state income, on the basis of Art. - Criminal Code of the Russian Federation - due to changes in the situation.

Determination of the Constitutional Court of the Russian Federation dated June 27, 2017 N 1406-O

The duty of the federal legislator to enshrine in the criminal law provisions providing for the possibility of replacing life imprisonment with a more lenient punishment does not directly follow from the Constitution of the Russian Federation. Formulating the norms of the article of the Criminal Code of the Russian Federation, taking into account both the nature of the crimes for the commission of which punishment is established in the form of life imprisonment (especially serious crimes encroaching on life, as well as especially serious crimes against public health and public morality, public safety, sexual integrity of minors, under fourteen years of age - part one of article of the Criminal Code of the Russian Federation), and the identity of the perpetrators to whom such a penalty is imposed, the federal legislator did not go beyond the limits of his powers (rulings of the Constitutional Court of the Russian Federation of November 25, 2010 N 1525-О-О , dated February 24, 2011 N 267-О-О, dated October 18, 2012 N 1928-О, dated September 24, 2013 N 1432-О and N 1433-О, dated September 25, 2014 N 2042-О, dated 23 December 2014 N 2823-O and dated March 29, 2016 N 622-O).

Determination of the Constitutional Court of the Russian Federation dated July 18, 2017 N 1489-O

PART OF THE SECOND ARTICLE OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION, the Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,

Determination of the Constitutional Court of the Russian Federation dated September 28, 2017 N 2186-O

OF THE FOURTH ARTICLE OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION, PART OF THE SECOND ARTICLE 257 AND PART OF THE THIRD ARTICLE 399 OF THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, S.P. Mavrina, N.V. Melnikova, O.S. Khokhryakova, V.G. Yaroslavtseva,

Determination of the Constitutional Court of the Russian Federation dated December 19, 2017 N 2860-O

ARTICLE OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION, the Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 24, 2019 N 48-APU19-34

- convicted Rosenthal A.V. indicates that the sentence is excessively harsh. Claims that under Part 1 of Art. 119 of the Criminal Code of the Russian Federation, he was convicted unfoundedly, since his brother, R., used violence against him, hitting him on the head with a brick, which is confirmed by the conclusion of a forensic expert. He believes that the seizure of the knife was carried out in violation of the criminal procedural law, the “rose” from the broken bottle was discovered only the next day and no witnesses were present at its seizure, no traces of it were found on the bottle. Charged with two crimes under Part 1 of Art. 119 of the Criminal Code of the Russian Federation is based only on the testimony of the victim R., who was interested in his conviction, since there was a dispute between them over the apartment left after the death of their parents. Believes that on June 12 and 19, 2022 there was a mutual fight. Challenges the validity of the conviction under paragraph “a” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and claims that V. did not kill, he had no grounds for murder, and during the preliminary investigation he incriminated himself under the influence of police officers. He asks to change the sentence, to qualify his actions under Part 1 of Art. 105 of the Criminal Code of the Russian Federation and mitigate the imposed punishment. The additional appeal notes that in the verdict the court incorrectly indicated the conditional early release from the punishment imposed by the verdict of September 28, 2016, whereas in accordance with Art. The Criminal Code of the Russian Federation replaced his imprisonment with a more lenient type of punishment - restriction of freedom and the unserved sentence in the form of restriction of freedom at the time of the verdict was 20 days.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 4, 2019 N 45-APU19-12

The authors of the complaints ask for the verdict to be overturned and for Pestrikov D.R. to be acquitted. Pestrikov D.R. also indicates the presence of five children, requests the application of the provisions of Art. of the Criminal Code of the Russian Federation and on the manifestation of leniency. In the appeal and additions to it, the convicted Gagarin V.G. also expresses disagreement with the verdict, due to the discrepancy between the court's conclusions and the actual circumstances of the case, and the incorrect application of the criminal law. In support, he points out that his identification could not have been made on April 11, 2016, since the events took place on September 3, 2016. Questions the reliability of the testimony of the victim D., born in 1977, about the presence of a bruise under his eye, Gagarin V.G., since his brother, Gagarin E.G., initially mentioned this circumstance during interrogation. He disputes the testimony of witness Sh. He claims that the actions of the victims lack signs of necessary defense, and therefore expresses disagreement with the termination of the case against them on the grounds of Art. 105 of the Criminal Code of the Russian Federation. Expresses disagreement with the qualification of his actions. It is noteworthy that Ogly Ruslan, after concluding a pre-trial agreement, slandered some of the convicted persons.

Determination of the Constitutional Court of the Russian Federation dated January 30, 2020 N 230-O

ARTICLES OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, V.G. Yaroslavtseva,

Determination of the Constitutional Court of the Russian Federation dated February 27, 2020 N 307-O

What does judicial practice show under this article?

The practice under this article is widespread; there are often cases where the punishment is replaced with a more lenient one after some part of the term has passed.

Examples of cases:

Citizen K. was serving a sentence in a penal colony for theft and breaking into someone else’s home. He was sentenced to 5 years in prison. Since K. behaved well, had a positive reference from his previous place of work and from his family, the court considered the petition, in which the remainder of the unserved sentence - 3 years - was replaced with a more lenient punishment. It became forced labor.
Citizen E. received 5 years of imprisonment in a general regime colony for bank robbery. In a correctional facility, he behaved negatively and took part in clashes between prisoners a couple of times. After serving half of his sentence, his lawyer wanted to ask the court to replace the rest of the sentence with a more lenient one. But the court rejected this decision, pointing out that the citizen’s behavior was not good enough. The verdict remained unchanged.
Citizen Z. was accused of selling drugs, for which she received a prison sentence of 6 years in a general regime colony. While in the colony, she showed her good side and took the path of correction. She managed to gain the trust of the colony authorities, which she reported to higher authorities. At the request of Z.’s lawyer, she was asked to commute her sentence to a more lenient one. The court took into account all the requirements and characteristics and made a positive decision. Z. spent the rest of her sentence (2 years) in correctional labor.

What decisions are most often made under the article?

There are a lot of examples of judicial practice in cases. This is due to the frequent desire of prisoners to change the applied measures of influence to softer ones. But in half of the cases the court refuses the request. This is due to the fact that when serving a sentence, persons do not take into account the provisions of the law in this direction. If a guilty person is deprived of his freedom, he must first serve part of the sentence, show his good side and prove to the authorities that he is improving.

Of course, correction cannot be judged objectively, and there is no consensus on whether the convicted person takes such a path, but this is taken into account by the court. The judge also has the right to consider the petition based on the circumstances of the crime and questioning the prison staff about the behavior of the perpetrator. The offender must partially or fully compensate for the damage caused. On this basis, an objective assessment of the behavior of the convicted person is made. Also, the culprit must work and treat his duties with full responsibility.

If it is impossible for a person to perform work within the correctional system due to health or other reasons, this is considered a valid reason. When a person can work, but does not do so, the court is unlikely to meet him halfway and mitigate the chosen punishment. Behavior of this kind does not make a person look good, so revision is unlikely. In any case, each specific situation is considered individually, all necessary circumstances are taken into account.