Children are the flowers of life, but they may turn out to be cacti. Childhood and adolescence are considered the most carefree time, and teenagers themselves arrogantly believe that the law is on their side. The law cannot be on someone's side, because it is the Law, and it is harsh. Children who have committed crimes will not necessarily bear fair criminal liability; most likely, they will be prosecuted under Art. 90 of the Criminal Code of the Russian Federation. It is this milder type of punishment that is most often applied to young offenders.
Slippery slope
The feeling of impunity and all-encompassing parental protection sometimes gives rise to the desire to abuse freedom. Young people understand the word “freedom” very broadly; they lack moral, ethical, or legal education. These people talk to everyone about their rights, completely forgetting that along with rights there are always responsibilities, and with them there is also responsibility.
Elementary neglect of school education and acceptance of the fact that adult life is not permissiveness pushes minors to commit crimes of varying severity.
It is no less dangerous to think that a completely random fight will save someone who has stumbled. Carelessness does not relieve a person of responsibility. Law is a faceless and indifferent systematized system of norms.
Children who have committed a minor crime may face criminal charges. However, Art. 90 of the Criminal Code of the Russian Federation. It will not relieve the teenager of responsibility, but will give him a new chance at a normal life. The court can apply this article only if it is confident that educational measures will work and correct the person.
Forced education
Art. 90 of the Criminal Code of the Russian Federation is responsible for compulsory educational measures. This is not forced labor at all, as many people think. This is something that can truly save a child's life. The fact is that the use of such an article does not entail a criminal conviction at all, which means it will save you from many problems and especially help when getting a job.
Don't think that a criminal conviction is nothing special. It entails problems with employment, education, traveling abroad and, especially, emigration. The reality is that a person with a criminal record has many limitations. Much more than any law-abiding citizen.
Forced education is a special measure of influence. It is never prescribed just like that. The court takes everything into account. Characteristics from the educational institution, reviews from colleagues, lack of evidence at the police station, hobbies, character, personality and even religion - all this has weight in the trial. Art. 90 of the Criminal Code of the Russian Federation is what you need to hope for if a minor has committed a light or moderate crime.
Commentary on Article 90 of the Criminal Code of the Russian Federation
Compulsory educational measures are an independent form of government response to the unlawful behavior of minors. By their legal nature, coercive measures do not relate to criminal liability, are not punishment, but exist and are implemented within the framework of criminal legal relations.
Based on the principles of justice, humanism, and the economy of criminal repression, the legislator quite rightly believes that criminal liability and its inherent forms of implementation are not always the best, most effective means of influencing an individual and correcting his behavior. This is especially true in cases where minors are affected, i.e. persons with an unstable worldview, who do not have a strong social position and, therefore, who can still be influenced without resorting to extreme measures associated with criminal repression.
Taking into account the general position of the state regarding minors and the stated provisions of Art. 90 of the Criminal Code of the Russian Federation establishes that a minor who has committed a crime of minor or moderate gravity may be released from criminal liability if it is recognized that his correction can be achieved through the use of compulsory educational measures. In other words, in certain situations it is advisable to replace criminal liability measures with educational measures.
This position of saving criminal repression is recognized by the entire international community. In particular, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, adopted at the 96th plenary meeting of the UN General Assembly on November 29, 1985) proposes that sufficient attention be given to the implementation of positive measures involving the full mobilization of all possible resources, including family, voluntary and other community groups, as well as schools and other community institutions, to promote the well-being of the adolescent, so as to reduce the need for legal intervention, and to deal effectively, fairly and humanely with the adolescent in conflict with law <1>.
——————————— <1> Soviet justice. 1991. N 12 - 14.
Compulsory measures of educational influence are one of the grounds for the release of minors from criminal liability, a specific basis characteristic only of the category of persons under consideration.
The implementation of exemption from criminal liability using compulsory educational measures is associated with the presence of two factors. The first of these is the category of the crime committed: minor or moderate severity (formal factor). The second is the recognition of the possibility of correcting a minor through the use of compulsory measures of educational influence (material factor).
When establishing the second factor, all data characterizing both the act and the offender himself are taken into account, including data on pre-criminal and post-criminal behavior. The totality of such data allows law enforcement agencies and the court, with a greater or lesser degree of probability, to establish the possibility of correction through the use of compulsory educational measures.
When deciding on the issue of exemption from criminal liability using compulsory educational measures, you should pay attention to the fact that, in addition to the two factors mentioned above, there are formally no other contraindications. Therefore, release in the considered option can be applied regardless of, for example, the presence of a criminal record, completion of a probationary period with a suspended sentence, or in relation to a parolee with the remaining unserved sentence. Examples of this kind are known in practice. And in principle they do not contradict the law. The main thing is that in this particular case the court makes the right decision, based on the interests of society and the state, and on the interests of the minor.
Therefore, if during the preliminary investigation of a criminal case about a crime of minor or medium gravity it is established that the correction of a minor accused can be achieved without the use of punishment, then the investigator, with the consent of the head of the investigative body, as well as the interrogating officer with the consent of the prosecutor, has the right to make a decision to terminate the criminal prosecution and filing a petition before the court to apply a compulsory measure of educational influence to the accused minor, provided for in Part 2 of Art. 90 of the Criminal Code of the Russian Federation, which, together with the criminal case, is sent by the head of the investigative body or the prosecutor to the court.
The court considers the petition and materials of the criminal case in the manner established by Parts 4, 6, 8, 9 and 11 of Art. 108 of the Code of Criminal Procedure of the Russian Federation, with the exception of the rules establishing procedural deadlines.
Having received a criminal case with an indictment or indictment, the court has the right to terminate it on the grounds specified in Part 1 of Art. 427 of the Code of Criminal Procedure of the Russian Federation, and apply a compulsory measure of educational influence to the minor accused.
In a decision on the application of a compulsory measure of educational influence to a minor accused, the court has the right to assign to a specialized institution for minors control over the fulfillment of the requirements stipulated by the compulsory measure of educational influence.
Courts should not allow cases of application of criminal punishment to minors who have committed crimes of minor or moderate gravity, if their correction and re-education can be achieved through the use of compulsory educational measures provided for in Art. 90 of the Criminal Code of the Russian Federation.
When deciding on the possibility of releasing a minor from criminal liability using compulsory educational measures in accordance with Art. 90 of the Criminal Code of the Russian Federation, it is necessary to take into account that if the court comes to the conclusion that it is possible to correct a minor by applying educational measures to him, then the criminal case on this basis can be terminated both at the stage of preparation for the court hearing based on the results of the preliminary hearing, and as a result of the trial proceedings with a decision to apply these measures to the minor.
Part 2 of Art. 90 of the Criminal Code of the Russian Federation provides for an exhaustive list of compulsory educational measures.
These include:
a) warning;
b) transfer to the supervision of parents or persons replacing them, or a specialized government body;
c) imposition of an obligation to make amends for the harm caused;
d) restricting leisure time and establishing special requirements for the behavior of a minor.
In accordance with Art. 90 of the Criminal Code of the Russian Federation, a minor may simultaneously be assigned several compulsory measures of educational influence, for example, warning and transfer to the supervision of parents, the imposition of an obligation to make amends for the harm caused and restriction of leisure. These measures are not divided into basic and additional and can be prescribed in any combination.
When transferring a minor to the supervision of parents or persons replacing them, the court must make sure that these persons have a positive influence on the teenager, correctly assess what he has done, and can ensure appropriate behavior and daily control of the minor. To do this, it is necessary to request characterizing material, check the living conditions of the parents or persons replacing them, the possibility of financial support for the teenager, etc. Despite the fact that the law does not require the consent of parents or persons replacing them to transfer a minor to their supervision, such consent must be obtained by the court.
If the court makes a decision to terminate a criminal case and apply to a minor, as a compulsory educational measure, transfer to the supervision of parents or persons replacing them (relatives, guardians), or a specialized government body, or restriction of leisure and establishment of special requirements for behavior, the resolution must the period during which the chosen measure is applied must be indicated.
The period for application of compulsory measures of educational influence provided for in paragraphs “b” and “d” of part 2 of this article is set at a duration of from one month to two years when committing a crime of minor gravity and from six months to three years - when committing a crime of average gravity. gravity.
In the event of a systematic failure by a minor to comply with a compulsory educational measure, the court, at the request of a specialized institution for minors, cancels the decision to terminate criminal prosecution and apply a compulsory educational measure and forwards the materials of the criminal case to the head of the investigative body or the head of the inquiry body. Further proceedings in the criminal case continue in the manner established by the Code of Criminal Procedure of the Russian Federation.
Cancellation of a compulsory educational measure and the resumption of proceedings in the case are permissible if the statute of limitations for bringing a minor to criminal responsibility has not expired (Article 94 of the Criminal Code of the Russian Federation). Here we should pay attention to the fact that exemption from criminal liability with the use of compulsory educational measures is the only conditional basis for exemption from criminal liability. This basis is the systematic failure to comply with compulsory measures of educational influence. In this case, systematicity should be understood as failure to perform it three or more times. In addition, taking into account the fact that educational measures can be of different types, systematicity will be formed by both the failure to implement one measure and the failure to implement several of the prescribed measures.
Termination of criminal prosecution on the grounds specified in Part 1 of Art. 427 of the Code of Criminal Procedure of the Russian Federation is not allowed if the minor suspect, accused or his legal representative objects to this.
In some cases, in judicial practice there are errors associated with the abolition of compulsory educational measures. Thus, the court erroneously came to the conclusion that it was necessary to cancel the compulsory educational measure in the form of transfer to parental supervision, applied to G. under the previous sentence, and imposed a final punishment on him according to the rules of Art. 70 of the Criminal Code of the Russian Federation.
Transfer to parental supervision, as well as other compulsory educational measures provided for in Part 2 of Art. 92 of the Criminal Code of the Russian Federation, apply provided that a minor who has committed a crime can be corrected without the application of criminal punishment. Consequently, compulsory educational measures are not criminal punishment.
In accordance with Part 2 of Art. 86 of the Criminal Code of the Russian Federation, a person released from punishment is considered to have no criminal record.
In this regard, the court’s reference in support of the cancellation of the compulsory educational measure on the legal norm provided for in Part 5 of Art. 74 of the Criminal Code of the Russian Federation cannot be considered justified, since this provision provides for the abolition of a suspended sentence if a conditionally convicted person commits an intentional crime during the probationary period.
Under such circumstances, the court erroneously imposed the final punishment on G. for the totality of sentences, adding to the punishment imposed for the last crimes the punishment under the previous sentence, from which G. was released.
Therefore, G.’s punishment according to the rules of Art. was excluded from the sentence. 70 of the Criminal Code of the Russian Federation <1>.
——————————— <1> Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 9, 2006 N 15-O06-6.
Control over the execution of the prescribed compulsory educational measure by a minor is entrusted to a specialized state body that ensures his correction.
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Educational measures vary. The most important thing is that they do not involve physical methods of punishment. The court will not order systematic blows with a belt or rods on a minor. Undoubtedly, many parents approve of this approach. However, if the crime is serious enough, the court may well not be limited to one measure. He is able to appoint several at once. The list of compulsory educational measures includes the following:
- warning;
- transfer of a person to parental supervision or government agency;
- awarding a person the obligation to fully compensate for the damage caused;
- introduction of measures to limit the leisure time of a minor and tightening of requirements for a person’s behavior in an educational institution.
The above list is not at all exhaustive. This means that it can be expanded, the main thing is that it does not contradict our legislation.
Article 90 of the Criminal Code of the Russian Federation. Application of compulsory educational measures.
Commentary on Article 90
1. A minor may be released from criminal liability both on general grounds and on special grounds.
It must be borne in mind that when applying general types of release, the specifics of bringing to criminal responsibility persons under 18 years of age are taken into account. A minor may be released from criminal liability in connection with active repentance (Article 75 of the Criminal Code), in connection with reconciliation with the victim (Article 76 of the Criminal Code). These grounds do not provide for any exceptions from the general rules. When releasing a person under 18 years of age from criminal liability due to the expiration of the statute of limitations (Article 78 of the Criminal Code), it is necessary to take into account the peculiarities of the statute of limitations in relation to minors (see commentary to Article 94). Amnesty and pardon may be applied to persons under 18 years of age, as well as to adult criminals. 2. Along with general types of exemption from criminal liability and punishment, the legislation also contains special types that apply only to persons under 18 years of age. According to Part 1 of the commented article, the release of a teenager from criminal liability is possible in the presence of two circumstances:
1) the act must relate to crimes of minor or medium gravity;
2) correction of a minor is possible through educational measures.
3. Exemption from criminal liability is possible at any stage of legal proceedings. According to Art. 427 of the Code of Criminal Procedure of the Russian Federation, if during the preliminary investigation of a criminal case of minor or moderate gravity it is established that the correction of a minor can be achieved without the use of punishment, then the investigator, with the consent of the head of the investigative body, as well as the investigator with the consent of the prosecutor, have the right to terminate the criminal prosecution and file a petition before the court on the application of compulsory educational measures to a minor accused. The head of the investigative body or the prosecutor sends the corresponding resolution, together with the criminal case, to the court.
Termination of criminal prosecution is not allowed if the minor suspect, accused or his legal representative objects to this.
4. All special types of release of persons under 18 years of age from criminal liability are associated with the use of compulsory educational measures. They should be understood as measures of state coercion established by law against persons who have committed crimes of minor or moderate gravity, in order to correct them by pedagogical means without bringing them to criminal liability. They are compulsory because they are appointed and carried out regardless of the will of the perpetrator or his legal representative, and are binding both for the persons who committed the crime and for other persons. Their implementation is ensured by the power of state power. In terms of their content, the measures provided for in Part 2 of Art. 90 of the Criminal Code are of an educational nature. When they are used, the influence on a minor is primarily through persuasion, bringing to consciousness a negative assessment of his action, and the inadmissibility of socially dangerous behavior. The goal of correction is achieved without bringing the teenager to criminal liability.
Thus, these measures are educational in their content, and compulsory in the nature of their execution. They have only superficial similarities with criminal punishment. There are qualitative differences between them. There are no elements of punishment in coercive measures. They do not entail a criminal record and are not divided into main and additional types.
Compulsory educational measures are applied to persons under 18 years of age at the time of their appointment. A person reaching the age of majority precludes their use.
5. The article under comment provides for the following compulsory educational measures:
a) warning;
b) transfer to the supervision of parents or persons replacing them, or a specialized government body;
c) imposition of an obligation to make amends for the harm caused;
d) restricting leisure time and establishing special requirements for the behavior of a minor.
6. A minor may be simultaneously assigned several types of measures from those specified in the commented article.
7. The period for applying compulsory measures of educational influence in the form of transfer under the supervision of parents or persons replacing them, or a specialized government body and restrictions on leisure and the establishment of special requirements for the behavior of minors (clauses “b” and “d”, part 2 of Art. 90) is provided for a duration of from one month to two years - when committing a crime of minor gravity and from six months to three years - when committing a crime of medium gravity (Part 3 of Article 90).
8. In the event of a systematic failure by a person under 18 years of age to comply with a compulsory educational measure, this measure, upon the proposal of a specialized government body, is canceled and the materials are sent to bring the minor to criminal responsibility (Part 4 of Article 90).
Thus, release from criminal liability with the use of educational measures is a conditional measure.
9. Federal Law of May 21, 1999 N 120-FZ “On the fundamentals of the system for preventing neglect and juvenile delinquency” obliges bodies and institutions of the system for preventing neglect and juvenile delinquency to carry out individual preventive work with minors convicted of committing crimes of minor or moderate gravity and released by the court from punishment with the use of compulsory measures of educational influence (clause 13, part 1, article 5). This system includes: commissions for the affairs of minors and the protection of their rights, formed in the manner established by the legislation of the Russian Federation and its constituent entities; social protection authorities and social service institutions; specialized institutions for minors in need of rehabilitation; education authorities; guardianship and trusteeship authorities, youth affairs authorities; health authorities; employment service bodies, internal affairs bodies.
———————————
NW RF. 1999. N 26. Art. 3177.
Comments on the article
Almost any article of any of the codes from the Federal Law has comments. Most often, these are explanations from professional lawyers. They help citizens understand the essence of the article itself. See the saving benefits in the text or, on the contrary, lose hope.
Art. 90 of the Criminal Code of the Russian Federation with comments can be found in the convenient legal reference system “Consultant” or in the similar system “Garant”. This is a short article. In order to understand it, there is no need to read additional materials, because the legislator’s language in this case does not try to confuse citizens. However, the comments should still help parents of a minor or law students.
To whom is it permissible to apply Art. 90
The use of compulsory measures of educational influence is allowed only in relation to those citizens who are under 18 years of age. It is worth noting that the status of a minor citizen must be maintained until these measures are imposed. If a citizen committed a crime while a minor, but in court he has already turned 18, this article cannot be applied.
Second commentary to Art. 90 of the Criminal Code of the Russian Federation
1. Articles 90, 91 and 92 of the Criminal Code provide for special types of release of minors from criminal liability and punishment:
1) release of minors from criminal liability with the use of compulsory educational measures against them (Article 90 of the Criminal Code);
2) release of minors from punishment with the use of compulsory educational measures against them (Article 92 of the Criminal Code). The types and content of these measures are determined by Art. 91 of the Criminal Code and Part 2 of Art. 92 of the Criminal Code.
2. The condition for the release of minors from criminal liability with the use of compulsory educational measures is the commission of a crime of minor or moderate gravity (Part 1 of Article 90 of the Criminal Code). The basis for such release is the conclusion of the law enforcement officer about the possibility of correcting the minor by applying compulsory educational measures to him.
3. The types of compulsory educational measures used when releasing minors from criminal liability are determined by Part 2 of Article 90 of the Criminal Code, and their content - by Article 91 of the Criminal Code. According to Art. 91 of the Criminal Code, compulsory educational measures are:
1) warning;
2) transfer to the supervision of parents or persons replacing them, or a specialized government body;
3) imposition of an obligation to make amends for the harm caused;
4) restricting leisure time and establishing special requirements for the behavior of a minor.
4. Transfer to the supervision of parents or persons replacing them, as well as restriction of leisure (clauses “b” and “d” of Part 2 of Article 90 of the Criminal Code) are urgent measures. Therefore, part 3 of Art. 90 of the Criminal Code defines the minimum and maximum limits for the application of these measures: from one month to two years when committing a crime of minor gravity and from six months to three years when committing a crime of medium gravity.
According to part 3 of Art. 90 of the Criminal Code, a minor may be simultaneously assigned several compulsory educational measures.
5. If it is established that a minor has systematically failed to comply with a compulsory educational measure, the court has the right, at the request of a specialized state body, to cancel the decision on the application of such a measure and to send the criminal case against the minor for a new trial.
Systematic failure by a minor to comply with a compulsory measure of educational influence should be understood as repeated (more than two times) violations during the period of application of a compulsory measure of educational influence appointed by the court (for example, restricting leisure time, establishing special requirements for his behavior), which were registered in the prescribed manner by a specialized body, exercising control over the behavior of a teenager.
If a minor is simultaneously prescribed several compulsory measures of educational influence (Part 3 of Article 90 of the Criminal Code of the Russian Federation) and within a certain period he has committed single violations (no more than twice for each of them), such violations cannot be recognized as systematic, giving grounds for application by the court the provisions of Part 4 of Article 90 of the Criminal Code of the Russian Federation on the abolition of compulsory educational measures (clause 32 of Resolution No. 1 of 01.02.2011).
State educator
Education is the most important process in our lives. It is he who determines what kind of person a particular child will become. It cannot be neglected, even if a minor citizen unknowingly or carelessly violated the law. The state takes care of us and can provide a teacher for the teenager. We are talking about a juvenile affairs inspector.
An inspector is not a supervisor. If you look at it from the perspective of minor citizens, then the inspector is an evil person. However, as you understand, this is not at all the case. The state is not interested in increasing the number of criminals or unsocialized offenders. It is obliged to care for and educate its citizens. If a person does not accept and respect the law, then the state is obliged to help him change his point of view.
An inspector is not just a police officer, he is a professional. He has either a higher pedagogical or legal education. And in some cases there is both.
Responsibilities of the IPDN
The juvenile affairs inspector has his own legal responsibilities, beyond which he has no right to go. If he allows this, then the actions of the IPDN can be appealed. The inspector's responsibilities include:
- Work for preventive purposes.
- Communication with minors, exclusively within a certain territory.
- Help for those who have already served their sentences.
- Information support for parents of a minor who has committed a crime.
Judicial practice: sentences and punishment under Art. 91 of the Criminal Code of the Russian Federation
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Real forced education
Minor citizens are a special category of people. During adolescence, it is difficult for them to perceive objective reality. Many of them behave inappropriately, but within completely different frameworks. Particularly principled people may negatively perceive measures taken against them. Not everyone can understand that in this situation it is best to monitor their behavior, nor can they realize that a criminal conviction would generally ruin their life.
It is customary to place such individuals in special closed educational institutions. However, this happens only on the basis of a special conclusion of a special medical and psychological examination, with the consent of the person himself and his parents or official legal guardians.
This is an exceptional measure. It is also the heaviest within the framework of Art. 90. Its use is almost never unjustified, and adolescents who end up in these institutions are very rarely able to be re-educated.
