Commentary to Art. 73 Criminal Code
1. A suspended sentence means that the court, when passing a verdict of guilty and assigning a specific type of punishment to the convicted person and determining its term, decides to consider the imposed punishment suspended, i.e. does not carry it out under the condition that the convicted person fulfills certain requirements.
2. The possibility of applying a suspended sentence is limited, firstly, to certain types of punishment: correctional labor, restrictions on military service, detention in a disciplinary military unit or imprisonment, and, secondly, a suspended sentence when imposing imprisonment is possible provided that its term does not exceed eight years (Part 1 of Article 73 of the Criminal Code). In addition, in Part 1 of Art. 73 of the Criminal Code contains an indication of cases in which a suspended sentence cannot be applied.
3. The condition for the application of a suspended sentence is the possibility established by the court of correcting the convicted person without actually serving the assigned sentence. The conclusion about the existence of such a possibility is based on taking into account the nature and degree of social danger of the crime committed, the identity of the perpetrator, as well as mitigating and aggravating circumstances. The criminal law does not directly prohibit the use of a suspended sentence in relation to a person who has committed a serious or especially serious crime. However, established judicial practice always proceeds from the fact that a suspended sentence can be applied to persons who have committed such crimes only as an exception. The court may apply a conditional sentence to individual participants in such crimes only in cases where the secondary role of these persons is established, and also if the data characterizing the personality of the perpetrator and the circumstances in which the crime was committed give grounds to consider it inappropriate to isolate the convicted person from society. This is the reason for the establishment in law of a maximum term of imprisonment, which can be assigned conditionally.
4. In the case of a suspended sentence, two terms are indicated in the guilty verdict: the term of punishment and the probationary period.
5. A probationary period is a control period of time during which the convicted person must prove his correction by his behavior. Its duration depends on the type and duration of the imposed punishment. When imposing a sentence of imprisonment for a term of up to one year or a more lenient punishment, the probationary period must be no less than six months and no more than three years, and in the case of imposing imprisonment for a term of more than one year - no less than six months and no more. five years (Part 3 of Article 73 of the Criminal Code).
The criminal law excludes the possibility of court discretion when determining the probationary period for a person sentenced to confinement in a disciplinary military unit (Part 3.1 of Article 73 of the Criminal Code).
6. The probationary period is calculated from the moment the sentence enters into legal force. The probationary period includes the time elapsed from the day the verdict was announced (Part 3 of Article 73 of the Criminal Code).
7. With a suspended sentence, any additional types of punishment that are actually executed may be imposed.
8. The court may impose two groups of duties on a conditionally convicted person. The responsibilities of the first group are directly listed in Part 5 of Art. 73 of the Criminal Code, and the second group is not enshrined in the Criminal Code (for example, oblige the convicted person to eliminate the property damage caused by the crime within a certain period of time, provide financial support to the family, etc.).
9. Control over the behavior of conditionally convicted persons during the probationary period is carried out by penal inspections at the place of residence of conditionally convicted persons, and in relation to conditionally convicted military personnel - by the command of their military units (Part 1 of Article 187 of the Penal Code of the Russian Federation). The behavior of suspended minors is controlled by the juvenile affairs inspectorate.
10. It depends on the behavior of the conditionally convicted person during the probationary period and his attitude towards the duties assigned to him whether these duties will be completely or partially canceled by the court, on the proposal of the body exercising control over the behavior of the convicted person, or, conversely, supplemented with new ones that can increase efficiency its corrections.
11. After the expiration of the probationary period, if the conditionally convicted person complied with the instructions of the court verdict, his conviction for this crime (for which the person was given a suspended sentence) is expunged (clause “a”, part 3 of article 86 of the Criminal Code).
Second commentary to Art. 73 of the Criminal Code of the Russian Federation
1. Despite the terminology in the name of this institution - suspended sentence, the conviction of a person for committing a crime is real. The court makes a guilty verdict and assigns a specific type and amount of punishment to the perpetrator. The person is thus not exempt from criminal liability or even punishment. The essence of a conditional sentence is that, if there are grounds specified in the law, the court, when assigning a punishment to a person guilty of committing a crime, decides to consider it conditional, that is, not to execute it if the convicted person fulfills the necessary conditions, namely, if he will conscientiously follow the fulfillment of all requirements and restrictions imposed on him by the court.
2. The basis for applying a conditional sentence is the court’s confidence, confirmed by the case materials, that the convicted person can reform without actually serving the sentence (sometimes in the doctrine this basis is called legal).
The factual basis for the use of a conditional sentence is that the danger of the crime committed, information about the identity of the perpetrator, the circumstances of the commission of the crime together indicate the possibility of achieving the goals of punishment in this particular case without resorting to execution of the assigned punishment under certain conditions. Therefore, the law emphasizes: “When assigning a suspended sentence, the court takes into account the nature and degree of social danger of the crime committed, the identity of the perpetrator, including mitigating and aggravating circumstances.”
3. There are three groups of restrictions for the application of a conditional sentence: the first is associated with those punishments in respect of which it is possible to decide on their conditional non-execution, the second - with individual crimes that have been committed by a person, the third - with the characteristics of his past criminal activity.
4. A suspended sentence is possible only if a person is given four types of punishment, two of which are special and have a narrow scope of application: correctional labor, restrictions on military service, detention in a disciplinary military unit and imprisonment. The term of imprisonment is limited to eight years.
5. An unconditional ban on the use of a suspended sentence is established for convicts who have committed any of the dangerous crimes included in two groups:
1) crimes against the sexual integrity of minors under fourteen years of age, namely, crimes provided for in Articles 131-135, 240, 241, 2421 and 2422 of the Criminal Code (note to Article 73 of the Criminal Code);
2) crimes provided for in Part. 1 and 2 tbsp. 2051, Art. 2052, part 2 art. 2054, h.h. 1-3 tbsp. 206, part 4 art. 210 and art. 360 CC.
6. Conditional sentencing is also impossible in relation to persons whose behavior indicates an unwillingness to take the path of correction, persistent deformations of the personality of the convicted person, namely: when he previously committed a serious or especially serious crime during the probationary period with a conditional sentence imposed for committing an intentional crime. crime, or during the unserved part of the sentence imposed for committing an intentional crime, upon parole; as well as in case of a dangerous or especially dangerous relapse.
7. A conditional sentence is not prevented by the plurality of crimes committed by a person for which he is held criminally liable. If the court comes to the conclusion that it is possible to issue a suspended sentence to a person who has committed two or more crimes, such a decision is made not for each crime, but when the final punishment is imposed for a set of crimes (clause 62 of the 2015 PPVS).
8. In the event of a suspended sentence, additional types of punishment may also be imposed (Part 4 of Article 73 of the Criminal Code). However, only the main punishment can be recognized as conditional (clause 62 of the 2015 PPVS).
9. To confirm (or not confirm) the correction of the convicted person, he is assigned a probationary period, during which he must fulfill all the duties and restrictions that the court imposed on him when deciding on a suspended sentence.
10. In case of imposition of imprisonment for a term of up to one year or a more lenient type of punishment, the probationary period must be no less than six months and no more than three years, and in case of imposition of imprisonment for a term of more than one year - no less than six months and no more five years. If a sentence is imposed in the form of detention in a disciplinary military unit, the conditional probationary period is established within the limits of the remaining period of military service on the day the verdict is announced.
Thus, when determining the length of the probationary period, the court is free to choose any one within the framework indicated above, based on the personality characteristics and behavior of the convicted person before, during and after the commission of the crime.
11. The probationary period is calculated from the moment the sentence enters into legal force. The probationary period includes the time elapsed from the date of pronouncement of the sentence.
12. When deciding on the duties and restrictions of a convicted person during a suspended sentence, the court takes into account a number of circumstances and characteristics of the perpetrator’s personality: his age, ability to work and his state of health.
13. In part 5 of Art. 73 of the Criminal Code lists the duties that the convicted person must fulfill during the probationary period: not change his permanent place of residence, work, study without notifying the specialized government body that monitors the behavior of the probationer, not visit certain places, undergo treatment for alcoholism, drug addiction, substance abuse or venereal disease, work (get a job) or continue studying in a general education organization.
The list of responsibilities is not exhaustive. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction. In practice, such duties include more often than others: the duty not to travel outside a populated area or a specific region, the duty to eliminate the harm caused by a crime, the duty to financially support one’s family, etc.
14. At the same time, the set of duties that the court orders to perform by a person sentenced to probation may vary both in the number of these duties and in their content. During the probationary period, the court, on the proposal of the body monitoring the behavior of the conditionally convicted person, may cancel in whole or in part or supplement the duties previously established for the conditionally convicted person.
15. The behavior of a probationer does not remain uncontrollable. The law assigns control over the behavior of a conditionally convicted person to an authorized specialized state body (according to Article 187 of the Penal Code, such a body is the penal inspection at the place of residence of the conditionally convicted person), and in relation to military personnel - to the command of military units and institutions.
16. Upon expiration of the probationary period, control over the behavior of the conditionally convicted person ceases, and he is removed from the register of the penal inspection (Part 2 of Article 189 of the Penal Code).
Court verdict under Part 3 of Art. 158 of the Criminal Code of the Russian Federation No. 01-0509/2016 | Arbitrage practice
Case 1-509/16
SENTENCE
In the name of the Russian Federation date Moscow
Chertanovsky District Court address composed of presiding judge Zinkovskaya L.A. with the secretary Yusupova O.M., with the participation of the state prosecutor - assistant prosecutor of the Chertanovskaya Interdistrict Prosecutor's Office address Krokina N.S., defense lawyer - lawyer Shvidkoy Yu.N., who presented certificate No. 13112 and warrant No. 13378, having examined the criminal materials in an open court cases regarding
full name, passport details, citizen of the Russian Federation, with secondary education, single, working at Sever-Trans LLC as a loader, registered at the place of residence at the address: address, actually residing at the address: address, address, previously convicted: date by the Leninsky District Court address at clause "a" part 3 art. 158 of the Criminal Code of the Russian Federation to the date of imprisonment using Art. 73 of the Criminal Code of the Russian Federation conditionally with a probationary period for the date of 6 months, accused of committing a crime under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation,
INSTALLED:
full name committed theft, that is, the secret theft of someone else’s property, committed with causing significant damage to a citizen, namely:
So he (full name), being a security guard at the private security company “...”, carrying out his labor function of protecting the Billa store at the address: address date, at approximately 20 o’clock. 00 min. received at his disposal, for further return to the rightful owner, a forgotten bank card belonging to the name “Savings Bank of Russia”, on the account of which there were funds in the amount of the amount, and he (name) had a selfish criminal intent aimed at secretly stealing money from the name. After which, in order to implement the criminal intent, he proceeded to the ATM ..., located at the address: address, where on the date at approximately 22 hours 30 minutes, by selecting a PIN code, he stole funds from a bank card in the amount of the amount, thereby causing significant material damage to the above name amount.
The defendant, his full name, agreed with the charge brought against him, pleaded guilty in full and petitioned for a sentence to be passed without a trial. There is a statement from the victim's name in which she does not object to the consideration of the criminal case in a special judicial procedure; the defendant compensated her for material damage on a voluntary basis. The state prosecutor did not object to the consideration of the criminal case in a special trial procedure.
The court comes to the conclusion that the accusation, which the defendant’s name agreed with, is justified and supported by the evidence available in the case materials, the defendant’s petition was submitted voluntarily, after consultation with the defense lawyer, he is aware of the nature and consequences of his petition. The court qualifies the person’s offense under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, since he committed theft, that is, the secret theft of someone else’s property, committed with causing significant damage to a citizen. When assigning a punishment to the defendant's full name, the court takes into account the nature and degree of public danger of the crime he committed, the impact of the punishment on his correction, the living conditions of his family, and information about his personality. full name we have previously been convicted, having a criminal record that has not been expunged or expunged in accordance with the procedure established by law, during the period of suspended sentence he again committed a crime of average gravity, he fully admitted his guilt, he sincerely repents of his deed, he is not registered in the PND and ND, he is characterized satisfactorily at his place of residence , at his previous place of work during the internship period he showed himself on the negative side, provides financial assistance to his grandparents, and voluntarily compensated the victim for material damage caused by the crime.
The court recognizes as mitigating circumstances the defendant’s full admission of guilt, repentance for the crime, and voluntary compensation to the victim for material damage caused by the crime.
The court did not establish any aggravating circumstances.
In accordance with paragraph “k” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, the court recognizes voluntary compensation by the defendant as a mitigating circumstance
full name of property damage caused as a result of the crime of the victim, full name and when imposing punishment, finds the basis
for the use of Part 1 of Art. 62 of the Criminal Code of the Russian Federation
Considering that the name committed a real crime, falling into the category of medium gravity, during the probationary period assigned by the verdict of the Leninsky District Court, address dated under paragraph “a”, part 3 of Art. 158 of the Criminal Code of the Russian Federation to the date of deprivation of liberty, using Art. 73 of the Criminal Code of the Russian Federation, conditionally, with a probationary period of 6 months, and taking into account the totality of mitigating circumstances, the court considers it possible to maintain his suspended sentence and carry out the sentence from the date - independently.
Taking into account the above, the circumstances of the case, the presence of mitigating circumstances, and the absence of aggravating circumstances in the case, the court considers it possible, having imposed a sentence of imprisonment on his name, to apply Art. 73 of the Criminal Code of the Russian Federation, since, according to the court, correction of the defendant is possible without isolating society.
Taking into account the specific circumstances of the case and the identity of the perpetrator, the court considers it possible not to impose an additional punishment in the form of restriction of freedom.
Based on the aforesaid and guided by Article. 316 Code of Criminal Procedure of the Russian Federation, court
SENTENCED
full name found guilty of committing a crime under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, and sentence him to imprisonment for a period of 1 (one) year 6 (six) months.
Based on Art. 73 of the Criminal Code of the Russian Federation, the imposed punishment is considered suspended with a probationary period of 2 (two) years.
Based on Part 5 of Art. 73 of the Criminal Code of the Russian Federation impose additional obligations on the full name: do not change place of residence without notifying the specialized government body that monitors the behavior of the probationer, find a job, and appear at the inspection for registration on the first working Monday of each month.
Verdict of the Leninsky District Court address from the date by which the name was convicted under paragraph “a” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation to the date of deprivation of liberty, using Art. 73 of the Criminal Code of the Russian Federation, conditionally, with a probationary period of 6 months, - execute independently.
The preventive measure shall be left in the form of a written undertaking not to leave the place and proper behavior until the sentence enters into legal force.
Physical evidence: - screenshot from ATM No. 971818, located at the address: address stored with the materials of the criminal case - keep on file.
The verdict can be appealed on appeal to the Moscow City Court within 10 days from the date of its proclamation, and for convicted persons in custody, within the same period from the date of delivery of a copy of the verdict. If an appeal is filed, the convicted person has the right to petition for his participation in the consideration of the criminal case by the appellate court, as well as to entrust the defense of his choice to a defense attorney, or to petition the court to appoint a defense attorney.
Chairman:
