New clarifications of the Plenum of the Supreme Court of the Russian Federation on the practice of imposing criminal punishment

Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 22, 2015 No. 58

33. The most severe type of punishment in Articles 62, , , 68 of the Criminal Code of the Russian Federation should be understood as that type of punishment listed in the sanctions article, which is the most severe of the types of punishment applied in accordance with the current criminal law, taking into account the provisions of Article 44 of the Criminal Code of the Russian Federation (for example , for these purposes the arrest is not taken into account). It does not matter whether this type of punishment can be imposed on the perpetrator taking into account the provisions of the General Part of the Criminal Code of the Russian Federation (for example, part 1 of Article 56 of the Criminal Code of the Russian Federation) or the Special Part of the Criminal Code of the Russian Federation (for example, paragraph 2 of the notes to Article 134 of the Criminal Code of the Russian Federation).

(As amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2022 No. 43.)

The rules of Articles 62, , and 68 of the Criminal Code of the Russian Federation do not apply to cases of imposing a less severe type of punishment specified in the sanction of an article of the Special Part of the Criminal Code of the Russian Federation for the crime committed and additional punishment.

34. When applying Articles 62 and 68 of the Criminal Code of the Russian Federation in the case of committing an unfinished crime, the part of the punishment specified in these norms is calculated from the term or amount of the punishment that can be assigned according to the rules of Article 66 of the Criminal Code of the Russian Federation.

If, as a result of the application of Articles 66 and (or) 62 of the Criminal Code of the Russian Federation or Articles 66 and 65 of the Criminal Code of the Russian Federation, the term or amount of punishment that may be assigned to the convicted person turns out to be less severe than the lower limit of the most severe type of punishment provided for by the sanction of the corresponding article of the Special Part of the Criminal Code RF, then the punishment is imposed below the lower limit without reference to Article 64 of the Criminal Code of the Russian Federation. In such cases, the upper limit of the imposed punishment should not exceed the term or amount of punishment that can be assigned taking into account the provisions of these articles (for example, for a crime provided for in part of Article 162 of the Criminal Code of the Russian Federation, taking into account the provisions of Part 2 of Article 62 of the Criminal Code of the Russian Federation, imprisonment is imposed for no more than 6 years, although the lowest sanction limit is 7 years).

In the same way, the issue of assigning punishment is resolved if the upper limit of the punishment that can be assigned to a convicted person as a result of the application of these norms coincides with the lower limit of the most severe type of punishment provided for by the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation.

Courts should keep in mind that in such cases, the upper limit of the punishment that can be assigned to a convicted person as a result of the application of these rules is the maximum amount for him, taking into account which it is necessary to apply other rules for imposing punishment established by law.

(Paragraph introduced by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2022 No. 43.)

35. The court is obliged to motivate the application of rules limiting the term or amount of punishment to a certain part of the most severe type of punishment in the descriptive and motivational part of the sentence. In the operative part of the sentence, a reference to articles , , and 68 of the Criminal Code of the Russian Federation is not required even if, as a result of applying the provisions of Articles 62, , 66 of the Criminal Code of the Russian Federation, the imposed punishment will be below the lower limit of the most severe type of punishment provided for by the sanction of the article of the Special Part of the Criminal Code of the Russian Federation . If Article 64 of the Criminal Code of the Russian Federation is applied, reference to it in the operative part of the sentence is mandatory.

Article 62 of the Criminal Code of the Russian Federation

36. Within the meaning of the law, the rules set out in Part 1 of Article 62 of the Criminal Code of the Russian Federation can be applied by the courts in the presence of at least one of the mitigating circumstances listed in paragraphs “and” and (or) “k” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, if there are no aggravating circumstances.

If, along with the circumstances specified in Part 1 of Article 62 of the Criminal Code of the Russian Federation, the court establishes the presence of other mitigating circumstances, the punishment must be imposed taking into account all mitigating circumstances.

37. The rules of Part 3 of Article 62 of the Criminal Code of the Russian Federation on the non-application of the provisions of Part 1 of this article do not apply to persons who, by virtue of the law, are not sentenced to life imprisonment, including persons who have committed an unfinished crime. It should be borne in mind that Part 3 of Article 62 of the Criminal Code of the Russian Federation does not contain a ban on the application of punishment in the form of life imprisonment in the presence of the conditions provided for in Part 1 of this article.

38. The provisions of parts and Article 62 of the Criminal Code of the Russian Federation apply if the person has fulfilled the conditions of the pre-trial agreement on cooperation (Article 63.1 of the Criminal Code of the Russian Federation).

When imposing a punishment on a person with whom a pre-trial cooperation agreement has been concluded, in accordance with part or part of Article 62 of the Criminal Code of the Russian Federation, the provisions of Part 1 of this article on the term and amount of punishment are not subject to consideration.

The rules for imposing punishment established by part of Article 62 of the Criminal Code of the Russian Federation also apply in the presence of circumstances aggravating the punishment.

If exceptional circumstances are established, as well as if the defendant actively assists in solving a group crime, the court has the right to apply the provisions of Article 64 of the Criminal Code of the Russian Federation, including in the presence of aggravating circumstances.

According to the rules of Part 2 or Part 4 of Article 62 of the Criminal Code of the Russian Federation, punishment should also be imposed in cases where the court, for reasons not related to the defendant’s fulfillment of the obligations of the pre-trial cooperation agreement, considered the case in a general manner.

39. When establishing the circumstances provided for by both part and part of Article 62 of the Criminal Code of the Russian Federation, a set of rules for mitigation of punishment is applied: first, the provisions of Part 5 of Article 62 of the Criminal Code of the Russian Federation are applied, then - Part 1 of Article 62 of the Criminal Code of the Russian Federation. Thus, the maximum possible punishment in these cases should not exceed: two-thirds of two-thirds - when considering a criminal case in the manner prescribed by Chapter 40 of the Code of Criminal Procedure of the Russian Federation, and two-thirds of one-half - in the case specified in Article 226.9 of the Code of Criminal Procedure of the Russian Federation.

Article 64 of the Criminal Code of the Russian Federation

40. The court has the right to recognize as exceptional circumstances giving rise to the application of Article 64 of the Criminal Code of the Russian Federation both individual mitigating circumstances and their totality, indicating in the verdict the grounds for the decision. Article 64 of the Criminal Code of the Russian Federation can also be applied in the presence of circumstances aggravating the punishment.

If the main punishment is imposed on the basis of Article 64 of the Criminal Code of the Russian Federation below the lower limit provided for by the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, the term or amount of the punishment cannot be lower than the lower limit established for this type of punishment in the General Part of the Criminal Code of the Russian Federation.

Within the meaning of Part 1 of Article 64 of the Criminal Code of the Russian Federation, the appointment of a milder type of main punishment than provided for in the article of the Special Part of the Criminal Code of the Russian Federation is not prevented by the presence of alternative types of punishment in the sanction article.

When assigning a more lenient type of main punishment according to the rules of Article 64 of the Criminal Code of the Russian Federation, one should take into account the restrictions established in the General Part of the Criminal Code of the Russian Federation for assigning one or another type of punishment.

41. When imposing a punishment using Article 64 of the Criminal Code of the Russian Federation, in the operative part of the sentence a reference must be made to the specified norm when assigning punishment for each specific crime. Indication of this norm when assigning final punishment for a set of crimes is not required.

Article 65 of the Criminal Code of the Russian Federation

42. Within the meaning of the law, taking into account the peculiarities of recognizing the defendant as deserving leniency, the presence of a jury verdict on leniency, as well as mitigating circumstances provided for in paragraphs “and” and (or) “k” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, and the absence of aggravating circumstances punishment does not entail consistent application of the provisions of part 1 of the article and part 1 of article 65 of the Criminal Code of the Russian Federation. Part 1 of Article 65 of the Criminal Code of the Russian Federation is subject to application. At the same time, in such cases, the judge has the right to apply the rules for imposing punishment provided not only by Article 65 of the Criminal Code of the Russian Federation, but also (taking into account the circumstances specified in paragraphs “i” and “j” of Part 1 of Article 61 of the Criminal Code of the Russian Federation) Article 64 of the Criminal Code of the Russian Federation ( part 2 of article 349 of the Code of Criminal Procedure of the Russian Federation).

Within the meaning of Part 2 of Article 349 of the Code of Criminal Procedure of the Russian Federation, if there are grounds provided for in Article 64 of the Criminal Code of the Russian Federation, the judge has the right to assign a more lenient punishment to both a person who is recognized as deserving leniency and a person who is not recognized as deserving leniency.

Article 66 of the Criminal Code of the Russian Federation

43. When assigning punishment for an unfinished crime, the terms and amounts of punishment must be observed, which, in accordance with parts and Article 66 of the Criminal Code of the Russian Federation, are calculated from the maximum term or amount of the most severe type of punishment provided for a completed crime. At the same time, life imprisonment for preparation for a crime and attempted crime is not imposed (Part 4 of Article 66 of the Criminal Code of the Russian Federation).

Article 68 of the Criminal Code of the Russian Federation

44. When deciding whether there is a relapse of crimes, the courts should keep in mind that the basis for recognizing a recidivism of crimes is a conviction only for an intentional crime. In this case, the criminal records specified in Part 4 of Article 18 of the Criminal Code of the Russian Federation are not taken into account.

The presence of a conviction for a crime of minor gravity in a person who has committed a serious crime does not constitute a recidivism of crimes. However, the commission of an intentional crime of minor gravity by a person who has a conviction for a crime of medium gravity, a serious or especially serious crime constitutes a recidivism of crimes.

A criminal record expunged, including in the manner established by part of Article 74 of the Criminal Code of the Russian Federation, or expunged before the commission of a new crime does not constitute a recidivism. However, the presence of a criminal record (with the exception of convictions listed in Part 4 of Article 18 of the Criminal Code of the Russian Federation), removed or expunged after the commission of a new crime in the manner established by Article 86 of the Criminal Code of the Russian Federation, constitutes a recidivism of crimes, since the presence of a recidivism of crimes is established at the time of the commission of the crime.

To draw the attention of the courts to the fact that if a punishment is imposed according to the rules of Part 5 of Article 69 of the Criminal Code of the Russian Federation, a crime committed before the previous sentence was passed does not constitute a relapse of crimes. There is no relapse of crimes in cases where a new crime was committed after the previous sentence was passed, but before it entered into legal force.

45. Cancellation of a suspended sentence when a sentence is passed, for which the punishment is imposed using Article 70 of the Criminal Code of the Russian Federation, does not constitute a relapse of crimes.

Cancellation of a suspended sentence constitutes a relapse of crimes only in the case when the decision to cancel the suspended sentence and to send the convicted person to serve his sentence in prison was made before he committed a new crime. In this case, it does not matter on what grounds the conditional sentence was previously revoked - in accordance with part or part of Article 74 of the Criminal Code of the Russian Federation when imposing punishment for a cumulative sentence or in cases provided for in Part 3 of this article, on the basis of a court decision. It does not matter whether the convicted person actually began serving his or her imprisonment.

If, according to the first verdict, a person was sentenced to suspended imprisonment for an intentional crime (except for a crime of minor gravity), when a second verdict was passed for a new crime, the court, on the basis of Part 5 of Article 74 of the Criminal Code of the Russian Federation, canceled the suspended sentence and imposed a punishment in accordance with Article 70 of the Criminal Code of the Russian Federation, then when deciding the third sentence for a newly committed crime, the first and second convictions are taken into account when determining the presence of recidivism.

If a person commits an intentional grave or especially grave crime during the remaining unserved part of the sentence, by virtue of paragraph “c” of Part 7 of Article 79 of the Criminal Code of the Russian Federation, a special decision to revoke parole is not required, and the defendant is sentenced according to the rules provided for in Article 70 of the Criminal Code RF. In other cases, the court is obliged to justify the need to cancel (or maintain) parole.

46. ​​In the descriptive and motivational part of the sentence, it is necessary to indicate the type of recidivism of crimes. When recognizing the recidivism of crimes, it does not matter whether the crimes were completed or unfinished, as well as what the nature of the person’s participation in these crimes is (perpetrator, organizer, instigator or accomplice). In addition, for the recognition of recidivism, the presence or absence of an indication of recidivism in the indictment, indictment or indictment does not matter.

Within the meaning of Article 18 of the Criminal Code of the Russian Federation, the commission of a particularly serious crime by a person who has a conviction for a serious crime for which he was serving imprisonment constitutes a dangerous recidivism of crimes (Part 2 of Article 18 of the Criminal Code of the Russian Federation).

When a recidivism of crimes is recognized as dangerous or especially dangerous (parts 2 and 3 of Article 18 of the Criminal Code of the Russian Federation), a sentence to actual imprisonment includes a suspended sentence to imprisonment if the suspended sentence was revoked and the person was sent to serve the sentence in a prison before committing new crime.

47. According to Part 2 of Article 68 of the Criminal Code of the Russian Federation, in the event of a relapse of crimes, a person who has committed a crime for which alternative types of punishment are provided is assigned only the most severe type of punishment provided for by the corresponding article of the Special Part of the Criminal Code of the Russian Federation. The imposition of a less severe type of punishment, both provided for and not provided for by the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation, is allowed only in the presence of exceptional circumstances specified in Article 64 of the Criminal Code of the Russian Federation (Part 3 of Article 68 of the Criminal Code of the Russian Federation).

48. Based on the provisions of parts and Article 68 of the Criminal Code of the Russian Federation, punishment for recidivism of crimes cannot be lower than the lower limit of the sanction of the corresponding article, even if one third of the maximum term of the most severe type of punishment provided for a completed crime is less than the minimum amount of the most severe type punishment provided for a specific crime (for example, for a crime provided for in part of Article 161 of the Criminal Code of the Russian Federation, taking into account the provisions of Part 2 of Article 68 of the Criminal Code of the Russian Federation, less than 6 years of imprisonment cannot be imposed - the lowest limit of this type of punishment for this crime, although one third the maximum penalty for this crime is 4 years).

(As amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2022 No. 43.)

Courts should keep in mind that in case of any type of recidivism of crimes, the sentence for an unfinished crime may be lower than the lower limit of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation. In this case, a reference to Article 64 of the Criminal Code of the Russian Federation is not required.

(Paragraph introduced by Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2022 No. 43.)

In the event that one third exceeds the minimum amount of the most severe type of punishment provided for the crime committed, the court, in accordance with part of Article 68 of the Criminal Code of the Russian Federation, may impose a punishment for a period of less than one third, but not lower than the lower limit of the sanction of the corresponding article The special part of the Criminal Code of the Russian Federation, if it establishes mitigating circumstances provided for in Article 61 of the Criminal Code of the Russian Federation. In this case, circumstances recognized as such in accordance with part of Article 61 of the Criminal Code of the Russian Federation may also be taken into account as mitigating factors.

If the size of one third of the maximum term of the most severe type of punishment coincides with the lower limit of the sanction of the corresponding article and the court has established mitigating circumstances provided for in Article 61 of the Criminal Code of the Russian Federation, and the grounds for applying Article 64 of the Criminal Code of the Russian Federation have not been established, the court does not have the right to assign a sentence to the convicted person below the lower limit sanctions of the relevant article.

When imposing a punishment using Article 64 of the Criminal Code of the Russian Federation, in the operative part of the sentence one should refer not to Part 3 of Article 68 of the Criminal Code of the Russian Federation, but to Article 64 of the Criminal Code of the Russian Federation.

49. In the case of consideration of a criminal case in a special manner provided for by Chapter 40 or 40.1 of the Code of Criminal Procedure of the Russian Federation, for any type of recidivism, one third provided for by parts and Article 68 of the Criminal Procedure Code of the Russian Federation is calculated:

(As amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2022 No. 43.)

for a completed crime - from the maximum term of the most severe type of punishment provided for the crime committed by the sanction of the relevant article;

for an unfinished crime - from the maximum term of the most severe type of punishment provided for the committed crime, which can be assigned taking into account the provisions of Article 66 of the Criminal Code of the Russian Federation.

What's happened?

At the end of 2022, the Plenum of the Supreme Court of the Russian Federation adopted resolution No. 43 dated December 18, 2018, which amended the resolutions of the Plenum of the Supreme Court of the Russian Federation dated December 20, 2011 No. 21 “On the practice of courts in applying legislation on the execution of sentences” and dated December 22, 2015 No. 58 “On the practice of imposing criminal punishment by the courts of the Russian Federation.” The amendments were needed in connection with the introduction into Russian criminal law of the possibility of installment payment of a criminal fine, as well as new opportunities for replacing one criminal punishment with another.

Criminal fine

The Plenum of the RF Armed Forces clarified that if a convicted person has been given a fine as a criminal punishment, but he cannot pay it in one lump sum, the court can meet him halfway and impose an installment plan. To do this, the convicted person is given separate time to prepare an application for installment plans and documents on his financial situation. During the same period, other participants in the criminal process can prepare their objections. When deciding whether to grant an installment plan for the payment of a criminal fine, the judge must take into account all the circumstances and opinions.

The judges also clarified the rules for imprisoning persons who evade paying a criminal fine, and also do not appear for compulsory or correctional labor. Such a convicted person can be detained without a court decision for a period of no more than 48 hours. During this time, the court must consider the application for detention. The following must be attached to the submission:

• protocol of detention of the convicted person;
• explanations of the detainee;
• a copy of the verdict;
• search warrant;
• other documents confirming the validity of the search.

The Plenum of the RF Armed Forces emphasizes that the issue of replacing only the main punishment in the form of a fine should be resolved. Additional punishment imposed by a court verdict is carried out independently.

The court must take into account all the circumstances that led to the violation. In particular, the text of the resolution states that:

The court returns to the bailiff a proposal to replace the fine imposed as the main punishment with another type of punishment if it establishes the presence of circumstances that were not known to the bailiff, but could influence the decision to make a proposal (for example, if the convicted person was undergoing treatment in a hospital facility).

If the replacement of a fine with another type of punishment is nevertheless carried out, the court must proceed from the general rules established by Articles 69 of the Criminal Code of the Russian Federation, 70 of the Criminal Code of the Russian Federation and Part 1 of Article 71 of the Criminal Code of the Russian Federation. In particular:

The fine imposed as the main punishment, except when it is imposed in an amount calculated on the basis of the value, a multiple of the value of the item or the amount of commercial bribery or bribery, in case of malicious evasion of its payment, is replaced by any one (including those not provided for by the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation) other main punishment provided for in Article 44 of the Criminal Code of the Russian Federation, in addition to imprisonment.

The Plenum of the RF Armed Forces also clarified the amount of the criminal fine for corruption crimes. The text of the resolution says this:

The amount of the fine, calculated on the basis of a multiple of the cost of the item or the amount of commercial bribery, bribery of a contract service employee, contract manager, member of the procurement commission and other authorized persons representing the interests of the customer in the field of procurement of goods, works, services for the provision of state or municipal needs, bribes or the amount of illegally transferred funds and (or) the value of monetary instruments cannot be less than 25,000 rubles, even if the amount calculated taking into account the multiple is less than 25,000 rubles. In this case, a fine is imposed in the amount of 25,000 rubles.

Replacing one criminal punishment with another

Also, the Plenum of the RF Armed Forces clarified the rules for replacing a suspended sentence with another punishment if a person, even after a warning, evades his duties or is brought to administrative responsibility for violating public order. As stated in the resolution:

Courts should keep in mind that, based on the provisions of Part 3 of Article 74 of the Criminal Code of the Russian Federation and Part 5 of Article 190 of the Criminal Code of the Russian Federation, when resolving the issue of canceling a suspended sentence, all violations of public order committed by a suspended sentenced person during the probationary period, for which he was subject to administrative punishment, must be taken into account. responsibility (taking into account the period established by Article 4.6 of the Code of Administrative Offenses of the Russian Federation), or facts of failure to fulfill the duties assigned to him, including before a warning was given to the conditionally convicted person, or the extension of his probationary period, or the imposition of additional duties on him.

In this case, the judge must take into account all violations, including those that he committed before the warning, the imposition of additional duties or the extension of the probationary period. For example, as stated in the text of the resolution:

The issue of replacing the unserved part of forced labor with deprivation of liberty is resolved in cases where the convicted person is recognized as a persistent violator of the order and conditions of serving forced labor or the convicted person evades serving them by the court that passed the sentence, in the manner established by Article 399 of the Code of Criminal Procedure of the Russian Federation.

Assignment of forced labor

Forced labor is an alternative to imprisonment for crimes of minor or moderate gravity or the first serious crime, as the Plenum of the Armed Forces of the Russian Federation recalled. In particular, forced labor can be imposed only if a special article of the Criminal Code provides for such punishment along with imprisonment. In this case, no additional punishment to imprisonment is imposed.

Forced labor following a court decision can also be applied to a person who has committed two or more crimes. In this case, the judge must determine the period of forced labor for the commission of each crime, and not when determining the final punishment for a set of crimes. In such a situation, only terms of forced labor are subject to addition, and percentages of deductions from wages do not add up.