New edition of Art. 299 Code of Criminal Procedure of the Russian Federation
1. When rendering a verdict, the court in the deliberation room resolves the following issues:
1) whether it has been proven that the act of which the defendant is accused took place;
2) whether it has been proven that the defendant committed the act;
3) whether this act is a crime and what paragraph, part, article of the Criminal Code of the Russian Federation provides for it;
4) whether the defendant is guilty of committing this crime;
5) whether the defendant is subject to punishment for the crime he committed;
6) whether there are circumstances mitigating or aggravating the punishment;
6.1) whether there are grounds for changing the category of the crime of which the defendant is accused of committing to a less serious one in accordance with part six of Article 15 of the Criminal Code of the Russian Federation;
7) what punishment should be imposed on the defendant;
7.1) whether there are grounds for replacing the punishment of imprisonment with forced labor in the manner established by Article 53.1 of the Criminal Code of the Russian Federation;
7.2) whether the defendant needs to undergo treatment for drug addiction and medical and (or) social rehabilitation in the manner established by Article 72.1 of the Criminal Code of the Russian Federation;
whether there are grounds for passing a sentence without imposing a sentence, releasing from punishment or applying a deferment of serving the sentence;
9) what type of correctional institution and regime should be determined for the defendant when assigning him a sentence of imprisonment;
10) whether the civil claim is subject to satisfaction, in whose favor and in what amount;
10.1) whether it has been proven that the property subject to confiscation was obtained as a result of the commission of a crime or is the proceeds of this property or was used or intended to be used as a weapon, equipment or other means of committing a crime or for financing terrorism, extremist activities (extremism) organized groups, illegal armed formations, criminal communities (criminal organizations);
11) what to do with property that has been seized to ensure the execution of a penalty in the form of a fine, to secure a civil claim or possible confiscation;
12) what to do with material evidence;
13) who should bear the procedural costs and in what amount;
14) whether the court, in cases provided for in Article 48 of the Criminal Code of the Russian Federation, should deprive the defendant of a special, military or honorary title, class rank, as well as state awards;
15) whether compulsory measures of educational influence can be applied in cases provided for in Articles 90 and 91 of the Criminal Code of the Russian Federation;
16) whether compulsory measures of a medical nature can be applied in cases provided for in Article 99 of the Criminal Code of the Russian Federation;
17) whether the preventive measure against the defendant should be canceled or changed.
2. If the defendant is accused of committing several crimes, then the court resolves the issues specified in paragraphs 1 - 7 of part one of this article for each crime separately.
3. If several defendants are accused of committing a crime, then the court resolves the issues specified in paragraphs 1 - 7 of part one of this article in relation to each defendant separately, determining the role and degree of his participation in the committed act.
Article 299 of the Code of Criminal Procedure of the Russian Federation. Issues resolved by the court when rendering a sentence (current version)
1. The issues specified in this article are discussed and resolved in the order in which they are listed in it. This article does not contain an exhaustive list of issues resolved by the court when rendering a sentence. In the deliberation room, questions are also discussed about the existence of circumstances under which a person is released not only from punishment (clause 3, part 1, article 24, clause 3, part 1, article 27 of the Criminal Procedure Code, part 2, article 443 of the Criminal Procedure Code, art. 81 of the Criminal Code), but also from criminal liability in connection with voluntary renunciation of a crime (Article 31 of the Criminal Code), in connection with active repentance (Article 75 of the Criminal Code), in connection with reconciliation with the victim (Article 76 of the Criminal Code), in connection with the expiration of the statute of limitations (Article 78 of the Criminal Code), in connection with the act of amnesty (Article 84 of the Criminal Code). When deciding whether this act is a crime (clause 3 of part 1 of the commented article), the court must discuss whether there are signs of necessary defense, harm caused during the detention of the person who committed the crime, extreme necessity and other circumstances excluding the criminality of the act ( Articles 37 - 42 of the Criminal Code).
2. If the sanction of the criminal law, in accordance with which the defendant is found guilty, provides, in addition to deprivation of liberty, other, more lenient, types of punishment, the court, when rendering a sentence, is obliged to discuss the issue of imposing a punishment not related to deprivation of liberty. The court must also each time discuss the possibility of correction without serving a sentence of a person sentenced to such types of punishment as correctional labor, restrictions on military service, restriction of freedom, detention in a disciplinary military unit or imprisonment (Article 73 of the Criminal Code).
3. By virtue of Part 3 of Art. 60 of the Criminal Code, it is necessary to take into account what impact the imposed punishment will have on the correction of the convicted person and on the living conditions of his family. For these purposes, in order to correctly select the type and amount of punishment, it is necessary to find out whether the defendant is the only breadwinner in the family, whether he has dependent minor children, elderly parents, and whether there were facts indicating his negative behavior in the family (drunkenness, abuse with family members, negative impact on raising children, etc.).
4. When assigning correctional labor or a fine to a defendant, one should find out his financial situation, whether he has dependent minor children, elderly parents, etc. The amount of wages or other income of a convicted person when imposing a fine is subject to calculation at the time of sentencing.
5. Taking into account the nature and degree of public danger of the crime and information about the individual, the court should discuss the issue of imposing a more severe punishment prescribed by law on a person found guilty of committing a crime by a group of persons, a group of persons by prior conspiracy, an organized group, a criminal community (criminal organization) , grave and especially grave crimes, in case of recidivism, unless these circumstances are a qualifying feature of the crime and no circumstances have been established that, according to the law, entail a mitigation of punishment. At the same time, taking into account the specific circumstances of the case and personal data, the issue of assigning a less severe punishment to a person who has committed a crime of minor or moderate gravity for the first time and does not need to be isolated from society should be discussed. When assigning punishment to juvenile defendants, it is also necessary in each specific case to find out and evaluate the living conditions of the teenager, data on the negative impact on his behavior of older persons, the level of mental development, and other personality characteristics. When imposing an additional punishment in the form of deprivation of the right to drive vehicles, if there are grounds for it and taking into account mitigating and aggravating circumstances, the court must discuss the appropriateness of its application in relation to a person for whom driving a vehicle is a profession. For other issues to be resolved in the verdict, see the commentary to Art. 309.
6. Bearing in mind that the trial of a case in court is carried out only in relation to the defendants, the court should not allow language in the verdict indicating the guilt of other persons in committing a crime. In cases where individual participants in the criminal act of which the defendant is accused are exempt from criminal liability on the grounds provided for by law, the court, if this is important for establishing the role, extent and nature of the defendant’s participation in the crime, qualifying his actions or establishing other essential circumstances of the case, may refer in the verdict to the role of these persons in the act with the obligatory indication of the grounds for termination of the case. If the case against some of the accused is separated into separate proceedings, the verdict states that the crime was committed by the defendant together with other persons without mentioning their names. Thus, the Supreme Court of the Russian Federation, overturning the verdict, indicated that it contained a reference to the person who committed the crime in a case separated into separate proceedings, thereby the court went beyond the scope of the trial, which, according to Part 1 of Art. 252 of the Code of Criminal Procedure of the Russian Federation is carried out only in relation to the accused (Cassation ruling of the RF Armed Forces No. 6-49/2003 in the case of Esedov and Batyrbekov).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Distinctive features of the document
The Constitution enshrines the provision that no one can be considered guilty until this is proven in the manner established by federal law and confirmed by a court decision that has entered into force. This constitutional norm allows us to define the verdict as the main act of justice. In this regard, the courts are obliged to strictly comply with the requirements for the verdict.
The decision is made on behalf of the Russian Federation.
Commentary to Art. 299 Criminal Code
1. The objective side is expressed in the form of actions to bring a obviously innocent person to criminal liability, i.e. giving a person the status of an accused by issuing a resolution to bring him as an accused or an indictment, regardless of the fact of filing an accusation. These actions are committed against a known innocent person when it is reliably known that there is no crime, the person’s actions do not contain the elements of a crime, or the person is not involved in the commission of a crime, as may be evidenced by the available evidence or the absence of necessary and sufficient evidence in the case. These actions, combined with accusing a person of committing a grave or especially grave crime (Part 2), form a qualified crime.
2. The crime is recognized as completed from the moment the relevant procedural decisions are made, regardless of whether charges were brought against the accused, whether a trial was scheduled, etc.
3. The subjective side is characterized by direct intent, implying awareness of the innocence of the person brought to criminal liability.
4. Special subject: a person who, in accordance with the current criminal procedural legislation, can make an appropriate decision.
5. The issuance of a knowingly unjust (illegal) sentence by a judge is qualified under Art. 305 CC.
Procedural points
Regardless of whether the case was considered collectively or individually, the issues enshrined in Art. 299 of the Criminal Procedure Code. At the same time, the legislation imposes a number of requirements on authorized persons.
The issues specified in Article 299, resolved by the court, are discussed by all those present. No one can abstain from voting, except in certain cases.
Thus, a judge who voted for the acquittal of a citizen and remained in the minority may abstain when discussing issues related to the application of criminal law.
If opinions differ regarding the qualification of the act or the punishment, the vote given for acquittal is added to the vote given for the application of the norm establishing a less serious act and for the imposition of a less severe punishment.
Key principles
Sentencing is a procedure carried out strictly in accordance with the law. The courts must be guided by the following principles:
1. Legality. This means that the court makes a decision in compliance with the provisions of the Code of Criminal Procedure, based on the correct application of criminal and other norms, including civil, family, labor and other legislation.
2. Validity. This principle presupposes that the conclusions contained in the verdict are consistent with the circumstances considered during the proceedings. The court's opinion must be based on verified, examined and evaluated admissible evidence, the reliability and objectivity of which should not raise doubts.
3. Fairness. This principle relates mainly to the characteristics of decisions about the type and amount of punishment. From the contents of Art. 60 of the Criminal Code it follows that the court, when determining the sanction, must take into account the level and nature of the danger of the attack, the individual characteristics of the perpetrator, facts aggravating and mitigating responsibility, and, of course, the impact of the punishment on the living conditions of the convicted person’s relatives and his correction. In accordance with Art. 398.18 of the Code of Criminal Procedure, a sentence that contains a sanction that does not correspond to the gravity of the act, the degree of danger of the perpetrator, or the punishment, although not beyond the scope of the relevant norm of the Criminal Code, will be recognized as unfair, but in terms of the size and type of guilt, this is unfair both due to excessive leniency, and excessive severity.
Types of sentences
Depending on the answers to the questions provided for in Article 299 of the Code of Criminal Procedure of the Russian Federation, the decision may be guilty or acquittal. The latter is decided if:
- The court did not establish the crime.
- The defendant's innocence has been proven.
- There are no signs of a crime in the person’s act.
An acquittal, regardless of the grounds for its issuance, completely rehabilitates the citizen. On its basis, the rehabilitation procedure provided for in Chapter 18 of the Code of Criminal Procedure of the Russian Federation is carried out.
In Art. 299 contains issues related to the imposition of sanctions. If the defendant is sentenced to a sentence that must be served, then he is found guilty. In such a resolution, a sanction may be imposed on the subject, but without serving. In addition, the guilty verdict may not contain information about the imposition of punishment.
When solving rather complex issues fixed in Art. 299 of the Code of Criminal Procedure of the Russian Federation, it must be taken into account that a sentence with the appointment of an appropriate punishment, but with exemption from the obligation to serve it, is decided if, at the time of pronouncement:
- An amnesty act was adopted, according to which the convicted person is relieved of the obligation to serve his sentence.
- The period of a citizen’s stay in custody in this case absorbs the term of the sanction imposed on him. In this case, the procedure for offsetting punishments, enshrined in Article 72 of the Criminal Code, applies.
In accordance with Art. 299 of the Code of Criminal Procedure of the Russian Federation, when issuing an indictment with the imposition of a sanction, the court must accurately establish its type, specific amount and the beginning of the serving period.
Nuances
Considering Art. 299 of the Code of Criminal Procedure of the Russian Federation with comments from lawyers, one cannot help but pay attention to the fact that experts especially note the importance of a comprehensive study of evidence. The court must study all the materials presented and give them a legal assessment. We are talking, in particular, not only about evidence confirming conclusions on issues resolved by the court of the Russian Federation under Article 299, but also refuting them. The verdict, according to the norms of procedural legislation, must indicate the reasons why some facts were accepted and others were rejected.
Admission of insanity
According to Part 1 of Art. 299 of the Code of Criminal Procedure of the Russian Federation, the court must determine whether the defendant needs to apply medical measures to him. This question arises if at the investigation stage or already during the proceedings there is a need to determine the sanity of a person.
If the court recognizes that when committing a crime the citizen was in a state of insanity, or after the act he developed a mental disorder, as a result of which he lost the ability to recognize the danger and the nature of his own actions/inaction, or to control his behavior, the court answers this question in the affirmative. In accordance with Art. 51 and Article 299 of the Criminal Procedure Code, a decision is made to apply compulsory medical measures.
What does judicial practice show under this article?
Each sentence, like each case of violation of the law, has its own characteristics and will differ in a specific situation. A verdict is passed after the case materials have been fully studied and examined.
The procedure for applying for execution of a sentence under the Code of Criminal Procedure of the Russian Federation, Article 393
You can consider an example of sentencing based on Article 106 of the Criminal Code of the Russian Federation. The woman who killed a newborn child was sentenced to up to 5 years in prison. The defendant’s lawyer did not agree with this decision, since this crime is classified as a “privileged crime”, for which a mitigation of sanctions is provided.
The lawyer, having filed an appeal to a higher court, got the district court's verdict overturned. As a result, the sanction of imprisonment was replaced by restriction of freedom for 4 years.
What decisions can be made under Article 299 of the Code of Criminal Procedure?
A court verdict can be of two types: acquittal or conviction. To make a specific sentence there must be reasoned and compelling reasons.
Thus, an acquittal is rendered if during the proceedings the event of a crime or the involvement of a specific subject in its commission is not established. The reason for acquittal is also the absence of signs of a crime in the act of the accused and the acquittal verdict of the jury. An acquittal entails the cessation of proceedings and the complete rehabilitation of the citizen.
A conviction cannot be based on assumptions and conjectures; there must be irrefutable facts of a person’s guilt in a criminal act. The judge makes a guilty verdict if unambiguous answers to the main four questions were received during the trial.
The court has no right to pass a guilty verdict if the arguments in defense of the accused have not been refuted and doubts about his guilt have not been eliminated. Any doubt must be taken in favor of the accused. Moreover, if doubts cannot be refuted in court, then the court is obliged to issue an acquittal.
A conviction may be imposed with the imposition of punishment, but release from it, or without imposition of punishment. The fairness of the sentence is primarily determined by the chosen punishment. The sanction should not be too lenient or too severe, it should be proportionate to the crime committed.
