Last updated March 2021
Mitigating circumstances of a criminal punishment are certain facts that reduce the degree of danger of the crime committed by the accused, which are the basis for mitigating the sentence of the convicted person.
They testify to the positive traits of his personality, indicate special circumstances at the time the crime was committed, or confirm his repentance. The law obliges them to be taken into account when the court determines the punishment.
The list of such circumstances is given in the Criminal Code of the Russian Federation, but it is not exhaustive. This means that the court, when passing a sentence, can be guided by other facts if it comes to the conclusion that they really reduce the danger of the crime.
The importance of mitigating circumstances for criminal proceedings
This concept, along with aggravating circumstances, is the most important in criminal law and is widely used in the practice of criminal proceedings.
The obligation to take such circumstances into account when determining the penalty rests with the court in accordance with the requirements of paragraph 3 of Art. 60 of the Criminal Code of the Russian Federation. This ensures the principle of fairness when determining a preventive measure. If at trial it turns out that the danger of the crime is less than initially assumed, then the liability must be less strict.
The court accepts such circumstances not only to mitigate the sentence, but also to completely release it. A person who has committed a minor crime can expect to be released from punishment if he has not previously been convicted. This is possible subject to active cooperation with the investigation, reconciliation with the victim and full compensation for the harm caused to him. In this case, the court must take into account what impact this will have on the correction of the person who has stumbled.
If mitigating circumstances were not taken into account by the judicial authority when determining the punishment, this should be considered a reason to cancel the sentence already passed and reconsider the case (clause 1 of Article 382 of the Code of Criminal Procedure of the Russian Federation).
Results
Having received an act of prosecution for violation of tax laws in the form of a fine, analyze whether you have mitigating circumstances to reduce it. The list of mitigating circumstances discussed in the article is not exhaustive; any fact that is documented and capable of arousing sympathy can be recognized as a mitigating circumstance. As a rule, mitigating circumstances are assessed in a comprehensive manner, so the more you can declare, the greater the likelihood that the fine will be reduced by 2 or more times.
To submit a request to the tax authorities to reduce the fine, you have a month from the date of receipt of the act of prosecution, and numerous judicial practices on the use of mitigating circumstances will help you argue your position.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Mitigating circumstances provided for in Art. 61 of the Criminal Code of the Russian Federation
Committing a crime of minor or medium gravity for the first time by accident
Such a crime cannot be serious. Crimes of two categories are considered non-serious: minor and moderate. Crimes of minor gravity include acts for which criminal liability is imposed for no more than 3 years of imprisonment, and crimes of moderate gravity - no more than 5 years if there is intent and no more than 3 years if the law was violated through negligence.
This is the defendant's first crime. This category also includes persons who have violated the law more than once, but none of them resulted in a conviction, or one was passed but did not enter into legal force.
This also includes the following cases equating to a violation of the criminal law for the first time:
- removal of a criminal record in the event of a decision on amnesty or pardon of a convicted person;
- the expiration of the statute of limitations for previous crimes, during which the perpetrators may be subject to criminal prosecution;
- the end of the deadlines provided for the execution of the sentence;
- the convicted person has previously committed other crimes, but the conviction was withdrawn or expunged.
By chance coincidence is meant a set of factors that prompted a person to go against the law, but they are not decisive for his personality. Illegal behavior should not be typical for him. Whether there was a coincidence of circumstances is decided by the court individually for each specific case. Such cases include, for example, a crime resulting from a sudden conflict with the victim.
Minority
At the time of the commission of the unlawful act, the offender must be under 18 years of age.
It does not matter here whether he was 18 years old on the day the sentence was pronounced or not; the decisive factor is precisely his age at the time of criminal acts (or inaction).
Minority is recognized as a mitigating circumstance, because during adolescence the formation of a person’s personality is not yet completed. A teenager is not always able to give an objective assessment of the situation. Also at this age, a minor is more suggestible than an adult and is more susceptible to the influence of other people.
Pregnancy
This circumstance is included in the list primarily because of the need to take care of the health of the pregnant child and the expectant mother.
Also, during pregnancy, a woman experiences certain changes in her hormonal levels, as a result of which her mood is often unstable. This may be the reason she commits rash acts.
The defendant has young children
This may not always reduce the guilt of the defendant.
Thus, if the perpetrator, due to failure to fulfill the duties of raising children, was deprived of parental rights, and even more so committed illegal actions against children, including adopted children, there will be no talk of any mitigation of criminal liability.
If the court finds that the perpetrator actively participated in raising the children, provided them financially, and showed himself to be an exemplary parent, this fact will be recognized as a mitigating circumstance. Accordingly, the convicted person will receive a more lenient punishment.
Committing a crime due to a combination of difficult life circumstances, or motivated by compassion for the victim
It is precisely such circumstances that should push a person who finds himself in a difficult situation to violate the criminal law. These include:
- lack of funds and subsequent hunger (with loss of work and lack of other sources of income), which became the reason for the theft;
- identification of a serious illness in a person found guilty or in his relative, as a result of which the theft of medicines or painkillers based on narcotic substances was committed.
These may be other circumstances , if the court considers them to be sufficiently difficult for a particular person who is forced to break the law because of them.
In Russia, euthanasia is illegal; any means of committing it are equated to premeditated murder. However, the person guilty of committing it has the right to expect a less severe punishment than in the general case, if it can be proven that he helped the person die out of compassion, in order to save him from suffering.
Committing a crime as a result of coercion (both physical and psychological), as well as due to financial, official or any other dependence
Will be counted as mitigation if the defendant's will was unlawfully suppressed. At the same time, he must have a real opportunity to resist such influence, which for some reason was not used.
For example, the head of an organization forces a subordinate to falsify documents, threatening him with dismissal. The subordinate is aware of the criminal nature of such actions, but is afraid of losing his job if he refuses to carry out an illegal order. At the same time, it cannot be said that he had no choice: he had the opportunity to refuse to carry out the illegal order.
In the absence of the opportunity to resist coercion (for example, in the case of a real threat to the life of the coerced person), there is no corpus delicti at all and it is considered committed in a state of extreme necessity.
A crime is committed when the legality of one of the following actions is violated:
- Application of the necessary defense (for example, if the defendant killed someone who was trying to rob him with a targeted shot in the head, and the robber was unarmed and threatened only in words).
- Detention of a person suspected of committing illegal acts (when a law enforcement officer exceeds the limits of such detention).
- Actions when in a state of emergency. Thus, if a person who urgently needs a drug steals it by breaking into a closed pharmacy, criminal punishment will not be applied to him. If he also steals other medicines or causes other damage to the pharmacy that is not related to the search for the necessary medicine, then he will be held accountable before the law for such actions.
- Justified risk. A risk is not considered justified if achieving the goal is realistic without taking risky actions. If you can’t do without risk, you need to take care in advance to minimize the likely negative consequences.
- Execution of an order or order received by a person (if the execution of obviously illegal instructions, criminal liability from the executor is not removed).
The victim committed an illegal or immoral act, which served as an impetus for the commission of a crime against him
This circumstance must be distinguished from affect, when, due to uncontrollable excitement provoked by the inappropriate behavior of the victim, a person for some time practically loses the ability to control his actions (these are separate articles of the Criminal Code of the Russian Federation).
More: Murder committed in a state of passion
Here we mean violations of the law not only during the heat of passion, but also when in a mental state close to normal.
When passing a sentence, the court considers the nature and degree of illegality of the behavior of the person recognized as the victim. For example, the intentional infliction of grievous harm to the health of a child for stealing strawberries from the garden cannot be justified in any way; his behavior in this situation is not a factor mitigating the punishment.
Confession, assistance in solving and investigating a crime, exposing and prosecuting other accomplices, searching for illegally obtained property
A confession is counted if the accused voluntarily reported his crime to law enforcement agencies. The form of this message can be either written or oral.
A confession will be taken into account when sentencing and imposing punishment even in cases where:
- the criminal hid from the investigation for a long time, and then voluntarily came to law enforcement agencies with a statement;
- the accused, after arrest, voluntarily confessed to another crime, this confession is also accepted as a confession;
- the criminal voluntarily reported the crime he committed, then refused this testimony;
If the accused, after his arrest, only confirmed the information that the investigation had, a confession will not be issued (for example, if the person detained on suspicion of committing a crime did not report anything new).
Assistance in the investigation of a crime means that the accused voluntarily gives testimony that helps to obtain information that the investigative authorities did not previously have (reporting the location of a cache of crime instruments, presenting physical evidence, assistance in investigative experiments and expert studies).
Providing medical or other necessary assistance to the victim immediately after the commission of a crime, voluntary compensation for harm caused (including moral), as well as other actions aimed at eliminating the consequences of the offense
The establishment of these facts may indicate that the offender realized his guilt and repented of his crime. This means that the degree of his danger to society has decreased significantly.
How to mitigate the punishment?
Question:
Is it possible to receive a suspended sentence under Art. 30 part 3, article 228.1 part 3? I am accused of selling by a group of people in conspiracy (they made two purchases from me, there are secret witnesses). They took me in the car (they found 1g of hashish). There is an appearance, I cooperate with the investigation, a pregnant wife, a lot of positive characteristics. What else can you do to have more chances?
Answer:
In accordance with part 1 of Art. 73 of the Criminal Code of the Russian Federation, if the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence, it decides to consider the imposed sentence suspended. In this case, the term of imprisonment should not exceed 8 years. That is, the court may impose a suspended sentence of up to 8 years in prison at its discretion. In practice, the likelihood of assigning a suspended sentence under this article is minimal. You have everything you need, convince the court of the possibility of your correction, without actual deprivation of liberty. Bring to court witnesses who could give you positive characteristics. But, in practice, courts impose a suspended sentence under this article in very rare cases.
What is the outcome of the case?
Question:
Has not been previously convicted. I am charged under Art. 228 part 2, art. 231 part 2 paragraph “a” of the Criminal Code of the Russian Federation. What could be the outcome? He admitted his guilt.
Answer:
You face a sentence of 3 to 5 years in prison. The numbers are not exact, depending on the number of mitigating circumstances.
What will happen?
Question:
What happens if a confession is given and there is information on the phone (a program for working with bookmarks)? In total, 60-80 packages and another 21 bookmarks were found. All characteristics are good, disabled group 3.
Answer:
The classification of the crime depends on the total weight of the drugs seized. If it is large in size, then part 3 of article 30, part 4 of article 228.1 of the Criminal Code of the Russian Federation from 10 to 20 years in prison. If it is especially large, then part 3 of article 30, part 5 of article 228.1 of the Criminal Code of the Russian Federation from 15 to 20 years in prison. At the same time, if the court considers the existing mitigating circumstances to be exceptional, then it is possible to impose a punishment below the lower limit of the sanction of the article.
In addition, if your actions are recognized as having a mitigating circumstance - actively contributing to the disclosure and investigation of the crime you committed, or you gave a confession, then in the absence of aggravating circumstances the court will sentence you to less than 10 years in prison without reference to Article 64 of the Criminal Code of the Russian Federation .
How to reduce the punishment? parole
Question:
My son had a suspended sentence of 2 years (for 100 g of cannabis). Later, during a search of the house, they found 100 g of cannabis again, but for their own use. After this, he was sentenced to 3 years of special regime. Is it possible to change it to a suspended sentence or shorten the sentence, send it to a settlement or for treatment? He has mental problems and an eye disease. Or when to write for parole, he is already 6 months old. served time.
Answer:
In your case, changing the sentence to a suspended sentence or mitigating the sentence is not possible. Your son can apply for parole after serving 2 years and 3 months. The list of documents required for parole can be found here.
Mitigation of punishment
Question:
The husband was sentenced to three years under Article 228 for possession and use without the purpose of sale. But Articles 15, 64, 73 of the Criminal Code of the Russian Federation were not applied to him. He is now in jail. We have three children, I’m still expecting a baby (already 7 months old). Is there a chance for house arrest or a reduced sentence?
Answer:
There is no criminal liability for drug use; he was convicted only of drug possession. In order to answer your question, it is necessary to study the court verdict against your husband. If there are 3 minor children, the court may apply Art. 64 of the Criminal Code of the Russian Federation and mitigate the punishment. You can send the court verdict to your email address. After studying it, we will contact you by email or the phone number you provided. Studying the verdict is free.
Conditionally under Part 2 of Article 228 of the Criminal Code of the Russian Federation
Question:
When charged under Art. 228 part 2 of the Criminal Code of the Russian Federation can they give a conditional sentence? What if you collect as many positive characteristics as possible?
Answer:
The assignment of a suspended sentence under Part 2 of Article 228 of the Criminal Code of the Russian Federation is possible in the absence of outstanding convictions, as well as positive characteristics and the presence of mitigating circumstances at the discretion of the court.
Recidivism and mitigation of punishment
Question:
The husband was convicted under Part 1 of Art. 228.1 for 2 years of strict regime. They gave such a sentence because... admitted a relapse. We filed an appeal to a higher authority because... there is no relapse. Is it possible to count on a suspended sentence during a review of the case, at least with a longer probationary period? Mitigating circumstances: young child, pregnant wife, cooperation with authorities, admitted guilt, group 3 disabled.
Answer:
There is a possibility of a suspended sentence if there is no relapse, but you should not seriously count on it. A mitigation of punishment is possible.
What's the threat?
Question:
They are accused under Article 228.1, Part 3, paragraph “b” and Article 228, Part 1, there was a test purchase. Sale of 2.48 g of hashish and 2.02 g found on one’s person. There is a small child, married, positive characteristics from work and place of residence, there are many chronic stomach diseases. What punishment do I face?
Answer:
According to Part 3 of Article 228.1 of the Criminal Code of the Russian Federation, liability ranges from 8 to 15 years in prison. If you are convicted of the specified classification of crimes, then you face a punishment of 8 years to 8 years 6 months of imprisonment. If the court considers the totality of mitigating circumstances to be exceptional, then using Article 64 of the Criminal Code of the Russian Federation it is possible to impose a sentence of less than 8 years of imprisonment (5-8). At the same time, law enforcement officers often try to impute the most serious classification of a crime under Article 228.1 of the Criminal Code of the Russian Federation, and deliberately give the wrong classification to the actions of the accused. So, your actions may not contain the sale of narcotic drugs, but assistance in their acquisition. Read more here.
Extenuating circumstances (illnesses)
Question:
Sentenced to 3 years of strict regime under Article 30 Part 3 Part 4 Article 228.1 of the Criminal Code of the Russian Federation, served 1 year 2 months (of which 1 year in a pre-trial detention center). There are serious diseases: HIV, hepatitis C, severe form (with abscess) of spinal tuberculosis. While in custody, his health condition worsened and pulmonary tuberculosis appeared - a closed form (it is documented that it did not exist before). Is it possible to commute the sentence or grant parole due to illness? How to do it?
Answer:
In accordance with Part 2 of Article 81 of the Criminal Code of the Russian Federation, a person who, after committing a crime, falls ill with another serious illness that prevents the serving of a sentence may be released by the court from serving the sentence.
The procedure for undergoing a medical examination is regulated by Decree of the Government of the Russian Federation of February 6, 2004 No. 54 “On the medical examination of convicts proposed for release from serving a sentence due to illness,” which contains a list of diseases.
To undergo an examination, you must apply in writing to the head of the correctional institution with a request to send you to the specified examination.
When sentencing you, the court took into account all mitigating circumstances and sentenced you significantly below the lower limit. You can apply for parole to the court at the place where you are serving your sentence after actually serving 3/4 of the sentence, in your case after 2 years and 3 months.
parole
Question:
He was imprisoned under Article 228 Part 2 for a period of 1 year 6 months. Is it possible to be released on parole? What mitigating circumstances are required for parole? What documents are required?
Answer:
In your case, parole is possible after actually serving 3/4 of the sentence, that is, 1 year and 1.5 months. Read about the documents required for parole here.
Also: Review of judicial practice of the Supreme Court “On parole”
Probation under Article 228 of the Criminal Code of the Russian Federation
Question:
The ex-husband was put in a pre-trial detention center for two months under Article 228 of the Criminal Code of the Russian Federation. The trial is coming soon. About 6 years ago he had a suspended sentence under another article. What is the threat and is conditional release possible? We have a common minor child.
Answer:
As amended by the criminal procedure law that was in force 6 years ago, the expiration period for a conviction for a serious crime was 6 years. If your husband was not convicted of a particularly serious crime and more than 6 years have passed, then there is no relapse in his actions. Under such circumstances, the likelihood of assigning a suspended sentence to your husband exists, but it is small. Your task is to convince the court of the possibility of correcting your husband without actual imprisonment. Collect characteristics and documents confirming the presence of mitigating circumstances. You can learn more about the required documents and the procedure for submitting them as part of an extended consultation.
Extenuating circumstances
Question:
The husband was convicted on 228 h 2. The police department detained him at a traffic stop, his weight was 0.93 grams. They gave me 3 years of general regime. Tried in a special order, he admitted guilt. I am gr. the wife was left with a one-year-old child. He also helped my grandmother inv. 1 gr. To your mother's father, mother-in-law and grandmother. Everything is in place. Former Donor, what to do? Now he is in a pre-trial detention center and has written a cassation appeal.
Answer:
Hello, you need to appeal the verdict and ask to change the sentence to conditional or reduce the final punishment using Art. 64 of the Criminal Code of the Russian Federation (recognize mitigating circumstances as exceptional).
Mitigation of punishment (minor children)
Question:
Hello. I have this situation. A criminal case has been opened under Art. 228 part 3. “Attempted sale.” She admitted guilt, has no previous convictions, agrees to cooperate with the investigation, I have two minor children, 14 and 9 years old, have been infected with HIV for 12 years. The operational police officers promise to take my side in court and, with my active cooperation with them, promise to apply for a suspended sentence. The difficulty is that she did not commit the crime alone, it was with a friend. There is no direct evidence in the video and photo that I am making a “stacking” with the drug, I just bend over, and then get up and hold the keys in my hand. Is a suspended sentence possible?
Answer:
According to Part 1 of Art. 82 of the Criminal Code of the Russian Federation, the court may delay the actual serving of the sentence until the children reach the age of fourteen. Considering that you have not been previously convicted and are cooperating with the investigation, have a serious illness, the likelihood that the court will apply this rule of law to you is high.
Mitigation of punishment
Question:
Hello! My daughter was convicted and given probation in 2013, and has a young daughter. Young male investigators constantly pestered her and asked her to turn her in to someone. She did not go for provocation. Then they set her up, took their witnesses, their defender, who persuaded her to a special order, promising that nothing would happen to her, that she would not be imprisoned, since she had a child. She believed and agreed, but she was still imprisoned. Now she is very far away in Mordovia. He writes to all authorities with his own efforts, but nothing works. And we were left without help, I am a group 2 disabled person, I have been moving with the help of a stick since childhood, I was left with my 12-year-old granddaughter. She was given 5 years and 2 months, I don’t know if she will wait. What can be done to shorten the sentence or transfer her to serve her sentence in another area closer to home?
Answer:
Your daughter needs to appeal in cassation and ask for a mitigation of the sentence. In order to transfer her to serve a sentence in another region, you must submit a petition addressed to the head of the Federal Penitentiary Service of Russia, and state all your arguments in it. You can also apply for a pardon to the President of the Russian Federation. After serving 3/4 of her sentence, your daughter can apply for parole.
Conditional sentence
Question:
Good afternoon Please advise what we can expect. My son was detained with 1.75 amphetamine, accidentally ended up in the car, agreed with the accusation, very good characteristics, works, has no criminal record and has never been registered, the examination was not confirmed, does not use, married with 1 child, wife pregnant with 2 children, has certificates of gratitude letters and awards since he worked as a local police officer, now he works as a lawyer, he is 28 years old. What mitigating circumstances can be applied in this case to receive a suspended sentence?
Answer:
Everything you listed are circumstances mitigating your son’s guilt. It is necessary to provide the court with documents confirming them. Under the circumstances you described, the likelihood of receiving a suspended sentence is very high. How to get a suspended sentence and what documents to collect read here
Mitigation of punishment
Question:
The son is 23 years old, charged with Article 228 Part 2. We have no previous convictions, we hired a lawyer. He gave me a list of documents that needed to be collected: characteristics from the place of work, residence, district police officer and that’s it! What other documents are needed? For some reason he won't contact us! He said that if he needed anything, he would call himself. Is this the order of business? The son cooperated with the investigation and admitted his guilt. But at the moment it doesn't work. Served in the army, there is a description. Lives with his grandmother (75 years old), she is registered at the oncology clinic. Is there a possibility of probation? He was detained with 4gr. spice.
Answer:
If your son has a medical condition, then the relevant medical documents must be provided to the court. Provide the court with documents indicating that your grandmother has a serious illness; in court, your son must say that he is caring for his grandmother and helping her in every possible way. If possible, it is necessary for the grandmother to personally confirm this in court. Please include a reference from your place of employment. Try taking characteristics from public organizations.
How to get a suspended sentence and what documents to collect read here
Conditionally under clause “g”, part 4, article 228.1 of the Criminal Code of the Russian Federation
Question:
Please tell me whether it is possible to get a suspended sentence under Article 228.1 Part 4, paragraph “D” with a good lawyer, in the presence of mitigating circumstances and the absence of aggravating ones. Admission of guilt, cooperation with the investigation, pre-trial agreement, surrender, gave lectures at school about the dangers of drugs, is the girl in a position?
Answer:
There is a chance to receive a suspended sentence, but it is very small despite the circumstances you outlined. In practice, courts do not impose a suspended sentence under this article (isolated cases).
Mitigation of punishment
Question:
Good afternoon Please tell me, I am a disabled person of the 1st group, I have a dependent minor child, my husband was convicted under Part 2 of Art. 228 of the Criminal Code of the Russian Federation in March 2021, under arrest since December 2021. Is it possible, citing a young child and difficult financial conditions related to my health, to expect a reduced sentence?
Answer:
According to Part 3 of Article 60 of the Criminal Code of the Russian Federation, when imposing a punishment, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family is taken into account. Thus, the circumstances you indicated should have been taken into account when deciding the sentence. If you consider the verdict to be unfair or believe that the court did not fully take into account these circumstances, then the verdict must be appealed on these grounds.
Mitigation of punishment
Question:
Good day! The man was convicted under Part 4 of Article 228.1 of the Criminal Code of the Russian Federation on 5 counts for a term of 10 years of strict regime. The judge recognized the organized crime group, although there was not enough evidence for the organized crime group. After the trial, the child of the convicted person received disability. Is it possible for him to reduce his sentence? Or what to do for this?
Answer:
The very fact that the child received a disability after conviction is not a basis for mitigating the sentence on appeal. However, you can appeal the verdict on other grounds, including the absence of an organized crime group, and if, on this or another procedural basis, the cassation court reviews the verdict, then the circumstance of the child’s disability will be taken into account when assigning a punishment.
Part 4 of Article 228.1 of the Criminal Code of the Russian Federation: from 10 to 20 years?
Question:
Hello! My husband is accused under Article 228 Part 4. Can he be jailed?
We have a minor child and I am pregnant with my second.
Answer:
Part 4 of Article 228.1 of the Criminal Code of the Russian Federation provides for punishment from 10 to 20 years in prison. Cases of imposing a suspended sentence based on this qualification are rare. If the court recognizes your husband’s mitigating circumstances (children, illness, cooperation with the investigation, etc.) as exceptional, then a sentence of less than 10 years in prison may be imposed. Perhaps your husband’s actions contain the least serious elements of a crime, or the case materials contain violations that entail the lack of proof of his guilt. It is necessary to study the case materials for the presence of the above circumstances.
Mitigation of punishment
Question:
Hello! What amendments are expected under Art. 228 part 2 in 2020? The husband was sentenced to 2 years and 10 days of general imprisonment. A mitigating circumstance is that he is the only breadwinner in the family, since both his parents died and I was left alone with a small child in my arms, the common child is half a year old, he has 6 broken vertebrae, and since I have chronic Anemia I need good nutrition. I myself am unemployed, studying, and currently on academic leave. Is it possible to achieve release using Article 73 or a suspended sentence with a probationary period?
Answer:
You need to appeal the verdict to higher authorities, but there is little chance of changing the verdict. There will be no amendments.
Art. 228 part 2 +HIV and other mitigating circumstances
Question:
Detained with 0.25 grams of spice, charged with Article 228 Part 2 (purchase and possession), I cooperate with the investigation, told how I bought it on the Internet and took the bookmark, released on recognizance, I have a small child of 1.5 years, the only breadwinner, was given a suspended sentence 15 years ago, under Article 158 Part 1 with a probationary period of 1 year, after that I had no convictions and never participated in anything bad and was not noticed, I have been working in the organization since 2004, I am characterized exclusively positively at work, by my housemates, friends and acquaintances, as well as many clients with whom I work. I dabbled in drugs only occasionally, I don’t drink or smoke, I’m not registered anywhere, I’ve had HIV and hepatitis C for about 14 years, of which I’ve been taking antiretroviral therapy for about 9 years, without which my condition would immediately worsen, I started taking it when I fell ill with tuberculosis ( it is currently deregistered). What am I facing and what can I do to mitigate the punishment? Is a suspended sentence possible? What characteristics can be collected other than from work and place of residence to be provided to the court?
Answer:
You have a real opportunity to receive a suspended sentence. It is necessary to submit to the court documents confirming that you have the listed mitigating circumstances. You can provide references from public or charitable organizations.
I bought spice for friends
Question:
Hello! My common-law husband fell under the influence of drug dealers, at first they treated him, then he got hooked on this spice, his friends asked him to “get the spice”, he had no money, and so he went and took the spice to his friends and gave himself some. He was caught weighing 0.9 spice. They caught him in May 2021, then released him on bail, and arrived in September 2021, they said that he was wanted, although until that moment no one had come home or called him, he lived at home. As a result, he was taken away to await trial. They present Article 228, Part 4, Note 1. He previously had a juvenile conviction, and it was expunged. The common-law wife is pregnant. Is it possible to get a suspended sentence or mitigation, and what is the actual sentence he will face?
Answer:
If your husband acted in the interests of his comrades and, at their request, and for their money, assisted them in acquiring narcotic drugs, then it is necessary to seek reclassification of his actions as aiding (complicit) in the acquisition of narcotic drugs. In this case, it is possible to receive a suspended sentence. In the qualifications you indicated, the courts practically do not assign a suspended sentence. Sales are punishable by 10 years in prison, and complicity by 3 years.
Mitigation of punishment
Question:
The court pronounced a sentence under Article 228.1 Part 1 - 4 years in prison. He had an agreement with the prosecutor to help Sl. actions. He was not taken into account during the trial. After an appeal, the term was changed to 2 years and 10 months. While in the pre-trial detention center, he was diagnosed with a closed form of tuberculosis. Although upon admission he was completely healthy. He is currently undergoing treatment. Please tell me if we can change anything in this situation? And where can we go?
Answer:
If the court did not take this circumstance into account when rendering the verdict, then it is necessary to appeal the verdict in cassation and seek a mitigation of the punishment. At the same time, after serving half of the sentence, the convicted person may petition the court to replace the unserved part of the sentence with a more lenient one (corrective labor).
What other circumstances may be recognized by the court as mitigating?
The court has the right to recognize other circumstances as mitigating, but the verdict must contain arguments justifying such a decision.
In Russian judicial practice, these are most often recognized as:
- Sincere repentance for what they have done (this refers to cases where the perpetrator, for certain reasons, cannot compensate for the harm he has caused).
- Full or partial admission of guilt in committing a criminal act.
- Compensation for harm suffered by the injured party as a result of a crime, even if this was not done voluntarily.
- Absence of serious or irreparable consequences as a result of the crime committed.
- Less active participation in a group crime compared to other accomplices. For example, when a group of people stole someone else's property, the role of the defendant was minimal. The defendant did not personally enter the apartment, did not break the door, and did not take anything from the stolen property. He only watched to detect the owner's return or other people visiting the apartment.
- A petition from the team in which the person guilty of the crime worked for a more lenient punishment.
- Participation in military operations and hostilities.
- Completion of training at universities or institutions of secondary vocational education.
- Low family income.
- Certain health problems (these do not have to be severe or incurable diseases).
- The victim's request for leniency towards the criminal.
These are the most common grounds for mitigation of punishment, but they can also be any other facts identified by the court and relevant to a particular case.
If a mitigating circumstance is not expressly provided for by the Criminal Code of the Russian Federation, then the court is not obliged to make a decision by analogy with similar criminal cases considered earlier. Each specific case is considered individually.
Also, when assigning punishment, the mental state of the offender is taken into account. With certain mental disorders, the offender may be declared sane. However, he can control his behavior and realize the consequences of illegal activities to a lesser extent than a healthy person. In such a situation, the court has the right to mitigate the punishment.
How do mitigating circumstances affect punishment?
The Criminal Code does not contain special rules regulating the terms and amounts of mitigating punishment. This is determined by the court at its discretion within the limits of the article for a specific crime in the presence of the above mitigating circumstances.
However, in the article the legislator highlighted several provisions that he considered to be of particular importance.
If mitigating circumstances are confirmed in paragraphs 9 and 10 of this article
The maximum limit of punishment cannot be more than 2/3 of the maximum term or amount of punishment provided for in the relevant article. The exception is crimes that are punishable by life imprisonment or the death penalty; in such situations, the punishment will remain the same.
the last 2 points from the list of mitigating circumstances. It is they, according to the legislator, who should encourage the offender to begin to cooperate with the investigation and make amends for the harm caused to the victim.
The death penalty is still provided for in the Criminal Code, but it is not currently imposed due to the moratorium. An alternative measure that replaces it is life imprisonment.
When concluding a pre-trial cooperation agreement
If the accused has entered into a cooperation agreement with law enforcement agencies at the pre-trial stage, he cannot be given a punishment greater than 1/2 of the maximum possible under his article.
If the relevant article provides for life imprisonment or the death penalty, then they are not applied. In this case, the maximum term of imprisonment for such crimes is set at no more than 2/3 of the most severe punishment in the form of imprisonment for a certain period.
A pre-trial cooperation agreement means a kind of transaction, one of the parties to which is the state prosecution, and the other is the representative of the defense of the accused.
Such an agreement stipulates that the accused, in exchange for cooperation with the investigation, receives a less severe punishment. Its duration or size may also be specified in the text of the agreement.
In a special order or abbreviated form
If the case is examined in accordance with the provisions of Chapter 40 of the Code of Criminal Procedure of the Russian Federation, i.e. in a special manner, and the accused agrees with the prosecution, then the punishment in this case cannot be more than 2/3 of the most severe in such cases. If the inquiry into the case was carried out in an abbreviated form (Article 226.9 of the Code of Criminal Procedure of the Russian Federation), the amount or term of punishment cannot be more than 1/2 of the maximum sanction under the article.
In all other cases, mitigating circumstances are also subject to consideration in court, although the Criminal Code of the Russian Federation contains no special rules regulating the imposition of punishment for them. Punishment, as follows from the general meaning of Art. 61 of the Criminal Code must be mitigated, and to what extent - the court decides at its discretion.
The rules establishing the limits of punishment in the presence of mitigating circumstances are valid only in the absence of circumstances aggravating the guilt of the defendant. If there are simultaneously aggravating circumstances in the case of the criminal, they are also taken into account by the court and serve as the basis for imposing a more severe sentence.
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