1. In case of aggregation of crimes, punishment is imposed separately for each crime committed.
2. If all crimes committed in aggregate are crimes of minor or medium gravity, or preparation for a grave or especially grave crime, or an attempt at a grave or especially grave crime, the final punishment is imposed by absorbing a less severe punishment with a more severe one, or by partial or full addition of imposed punishments. In this case, the final punishment cannot exceed more than half the maximum term or amount of punishment provided for the most serious crime committed.
3. If at least one of the crimes committed in aggregate is a grave or especially grave crime, then the final punishment is imposed by partial or complete addition of punishments. In this case, the final punishment in the form of imprisonment cannot exceed more than half the maximum term of punishment in the form of imprisonment provided for the most serious crime committed.
4. In the case of a combination of crimes, additional types of punishment may be added to the main types of punishment. The final additional punishment in case of partial or complete addition of punishments cannot exceed the maximum term or amount provided for this type of punishment by the General Part of this Code.
5. According to the same rules, punishment is imposed if, after the court has rendered a verdict in the case, it is established that the convicted person is also guilty of another crime that he committed before the court’s verdict in the first case. In this case, the final punishment includes the sentence served under the first court verdict.
Commentary to Art. 69 of the Criminal Code of the Russian Federation
1. Issues of the practice of sentencing for a set of crimes are explained in the Post. Plenum of the Armed Forces of the Russian Federation dated December 22, 2015 N 58 (clauses 7, 44, 50 - 55, 57, 60).
In Post. The Plenum of the Armed Forces of the Russian Federation dated November 29, 2016 N 55 explains the features of the operative part of a conviction in terms of sentencing for a set of crimes (paragraphs 34, 35).
2. The commented article in connection with the provisions of Art. 17 of the Criminal Code is intended to ensure the principle of fairness in the application of criminal law, according to which punishment and other measures of a criminal legal nature applied to a person who has committed a crime must correspond, in particular, to the nature and degree of public danger of the crime (Part 1 of Article 6 Criminal Code of the Russian Federation). Ensuring such compliance in cases where a person has committed acts that differ in the object of the attack, the objective and subjective side, thereby forming crimes provided for in various articles of the criminal law, is achieved, inter alia, by qualifying the act and imposing punishment for the totality of crimes.
3. The provisions of the commented article, which regulate the imposition of punishment for a set of crimes, do not allow double punishment for the same crime. ——————————— See: Def. Constitutional Court of the Russian Federation of September 23, 2010 N 1216-О-О “On the refusal to accept for consideration the complaint of citizen Fedor Fedorovich Agienko about the violation of his constitutional rights by part two of Article 17 and part three of Article 69 of the Criminal Code of the Russian Federation”; dated 02/16/2012 N 370-О-О “On the refusal to accept for consideration the complaint of citizen Roman Vasilyevich Kirichek about the violation of his constitutional rights by articles 69, 70, 73 and 74 of the Criminal Code of the Russian Federation.”
4. The commented article establishes a certain sequence of sentencing for a set of crimes. First, it is necessary to assign punishment for each crime included in the totality, in compliance with both general and special rules for assigning punishment. After this, the final punishment for the totality of crimes is assigned.
At the same time, the operative part of the sentence must indicate the type and amount of the main and additional punishments imposed separately for each crime and the final punishment for the totality of crimes.
When assigning the final punishment for a set of crimes, two principles are applied: the absorption of a less severe punishment by a more severe one and the addition (full or partial) of punishments. Within the meaning of the law, these principles apply to both primary and additional penalties.
When determining punishment for a combination of three or more crimes, the court has the right to simultaneously add up some in whole or in part and absorb other penalties imposed for individual crimes (for example, add in whole or in part punishments in the form of imprisonment and absorb correctional labor or a fine).
Within the meaning of the law, when assigning punishment for a set of crimes, the court has the right to apply different principles to assign the final main and additional types of punishment, which must be motivated in the verdict. If the court applies one principle, it must be observed when imposing the final punishment, both primary and additional. Thus, the court, recognizing the need to apply the principle of partial addition of punishments for a set of crimes on the basis of Part 3 of the commented article, contrary to this, completely added up the additional punishments imposed on the convicted person in the form of restriction of freedom. ——————————— See: Review of judicial practice of the RF Armed Forces for January - July 2014, approved. By the Presidium of the RF Armed Forces 09/01/2014 // BVS RF. 2014. N 11.
5. The principle of addition of punishments is universal and can be applied in all cases of sentencing for a combination of crimes. However, its use has its own characteristics.
If punishment is imposed for crimes of minor or medium gravity, or preparation for a grave or especially grave crime, or an attempt to commit a grave or especially grave crime, the final punishment cannot exceed more than half the maximum term or amount of punishment provided for the most serious of the crimes committed. This rule (the so-called “one and a half sanction” rule) applies to all types of punishments. For example, if a person is convicted of a crime under Part 2 of Art. 158 of the Criminal Code (the most severe punishment is five years in prison), and for a crime under Part 2 of Art. 159.2 of the Criminal Code (the most severe punishment is four years of imprisonment), then the final punishment should not exceed seven years and six months (5 + 5: 2 (2.5) = 7.5).
If at least one of the crimes committed in aggregate is a grave or especially grave crime, then the final punishment in the form of imprisonment alone cannot exceed more than half the maximum sentence provided for the most serious of the crimes committed. At the same time, the application of this rule must take into account the general restrictions established in Parts 4 and 5 of Art. 56 of the Criminal Code of the Russian Federation, according to which the maximum punishment for a set of crimes cannot exceed 25 years of imprisonment, however, if at least one of the crimes provided for in Art. Art. 205 - 205.5, part 3 and 4 art. 206, part 4 art. 211, art. Art. 277 - 279, 353, 356 - 358 and 360 of the Criminal Code of the Russian Federation, in case of partial or complete addition of terms of imprisonment when imposing punishment for a set of crimes, the maximum term of imprisonment cannot be more than 30 years. So, in the case of committing several crimes provided for in Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the final punishment cannot exceed 25 years, and if crimes under Art. 205 of the Criminal Code of the Russian Federation, then the maximum final punishment will be 30 years.
Based on the provisions of Part 3 of the commented article, the “one and a half sanction” rule does not apply if a punishment not related to imprisonment is finally imposed, such a punishment should not exceed the maximum limit provided for by the relevant provisions of the articles of the General Part of the Criminal Code of the Russian Federation.
6. The principle of absorption of a less severe punishment by a more severe one is applied if all crimes committed in aggregate are crimes of minor or medium gravity, or preparation for a grave or especially grave crime, or an attempt to commit a grave or especially grave crime. The final punishment is imposed by absorbing a less severe punishment into a more severe one. When determining a less severe punishment, one should take into account the hierarchy of types of punishment provided for in Art. 44 of the Criminal Code of the Russian Federation.
7. If a person has committed several unfinished crimes, then for each of them a punishment is imposed in accordance with Art. 66 of the Criminal Code of the Russian Federation. Punishment for a combination of crimes cannot exceed more than half the maximum term or amount of punishment that can be imposed according to the specified rules for the most serious of the committed unfinished crimes. For example, a person is convicted under Part 3 of Art. 30, paragraph “c”, part 2, art. 158 of the Criminal Code and part 3 of Art. 30, paragraph “a”, part 3, art. 158 of the Criminal Code of the Russian Federation, while the final sentence for the totality of these crimes cannot exceed six years and nine months of imprisonment (3/4 of six years is four years and six months, of which 1/2 is two years and three months).
8. If a person commits several crimes, for each of which a punishment is imposed using the provisions of Art. Art. 62 or 65 of the Criminal Code of the Russian Federation, the term or amount of punishment for a set of crimes cannot exceed more than half the maximum term or amount of punishment that can be assigned for the most serious of the crimes committed without taking into account the rules established by these articles. At the same time, in order to ensure the principle of justice when imposing the final punishment, the courts must take into account that for each of the crimes committed, the punishment was imposed taking into account the rules of Art. Art. 62 or 65 of the Criminal Code of the Russian Federation.
9. If a person is convicted of several crimes, some of which were committed as a minor, and others as an adult, it must be borne in mind that for crimes committed as a minor, punishment must be imposed within the limits established by Art. 88 of the Criminal Code of the Russian Federation, and for crimes committed at the age of majority - within the limits of the sanctions established for the relevant crimes. In this case, when assigning the final punishment, the rules for assigning punishment for the totality of crimes are applied (Article 69 of the Criminal Code of the Russian Federation). For example, if a person committed a murder under Part 1 of Art. 105 of the Criminal Code of the Russian Federation, while a minor, and robbery under Part 1 of Art. 162 of the Criminal Code of the Russian Federation - at the age of majority, then in this case the final punishment for the totality of crimes cannot exceed 15 years (10 + 10: 2 (5) = 15).
In addition, when assigning punishment for a combination of crimes to convicted minors, it is necessary to take into account the provisions of Part 6 of Art. 88 of the Criminal Code of the Russian Federation, which relate not only to punishment for an individual crime, but also to the final punishment for a set of crimes. For example, juvenile convicts who committed serious crimes under the age of 16 cannot be sentenced to more than six years of imprisonment, either for an individual crime or for their totality. ——————————— See: Post. Judicial Collegium of the RF Armed Forces N 142-P11PR // BVS RF. 2011. N 12.
10. Additional punishment cannot be determined for a set of crimes if it is not assigned for any of the crimes included in the set.
In the event that for two or more crimes, along with the main punishment, the same type of additional punishment is imposed, its final term or amount in case of partial or complete addition of punishments cannot exceed the maximum term or amount provided for this type of punishment by the General Part of the Criminal Code of the Russian Federation . If, for various crimes included in the aggregate, the court imposed different types of additional punishment, then they, along with the corresponding amounts and terms, must be indicated in the verdict and when assigning the final punishment for the aggregate of crimes.
The term or amount of additional punishment imposed based on the totality of sentences also cannot exceed the maximum term or amount provided for by the relevant article of the General Part of the Criminal Code of the Russian Federation.
11. When assigning punishment for a set of crimes, there are features in relation to certain types of punishment (see commentary to Articles 46, 47, 49, 50, 53).
12. When deciding on the imposition of punishment in accordance with Part 5 of the commented article on a person who has committed another crime before the verdict in the first case, the court applies the general rules for imposing punishment for a set of crimes. In this case, the final punishment, imposed by partial or complete addition, must be more severe than the most severe of the punishments imposed for the crimes included in the totality.
According to the meaning of the law, when imposing a punishment according to the rules of Part 5 of the commented article, what matters is not the moment the previous sentence entered into legal force, but the time of its pronouncement, therefore the rules of Part 5 of Art. 69 of the Criminal Code are also applied in the case when, at the time of rendering the verdict in the case under consideration, the first verdict has not entered into legal force.
13. The term of serving the final sentence in the form of imprisonment, imposed according to the rules of part 5 of the commented article, is calculated from the date of the last sentence.
In this case, the time of preliminary detention in the last case as a preventive measure or detention is counted, as well as the time spent under house arrest in this case or in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care. in stationary conditions.
In this case, the term of the final punishment must, in addition, include the punishment served in whole or in part under the first sentence. ——————————— See: Def. Judicial Collegium of the RF Armed Forces N 41-APU14-30 // BVS RF. 2015. N 6.
If, according to the first sentence, the imposed punishment was replaced by a more severe type of punishment, then the final punishment must include both the originally imposed punishment served before it was replaced by a more severe type of punishment, and the served punishment of a more severe type.
When assigning a final punishment according to the rules of Part 5 of the commented article, the time spent in custody of the convicted person not only for the last, but also for the first sentence is counted towards the term of serving the sentence in prison. ——————————— See: Def. Judicial Collegium of the RF Armed Forces No. 8-O10-28 // BVS RF. 2011. N 2.
14. If it is established in the case that the convicted person is also guilty of other crimes, some of which were committed before and others after the first verdict, then the punishment for the second verdict is first imposed on the totality of crimes committed before the first verdict, after that - according to the rules of part 5 of the commented article, then according to the totality of crimes committed after the first verdict. The final punishment is imposed according to the rules of Art. 70 of the Criminal Code by partially or fully joining to the punishment imposed for the totality of crimes committed after the first sentence was passed, the unserved part of the punishment imposed according to the rules of Part 5 of Art. 69 of the Criminal Code of the Russian Federation.
In cases where it is established in relation to a conditionally convicted person that he is also guilty of another crime committed before the verdict in the first case, the rules of Part 5 of the commented article cannot be applied, since Art. 74 of the Criminal Code provides an exhaustive list of circumstances on the basis of which a suspended sentence can be revoked. In such cases, the sentences in the first and second cases are executed independently.
If some crimes were committed before, and others after, the first verdict, according to which the convicted person was sentenced using Art. 73 of the Criminal Code of the Russian Federation, then the court should first impose punishment for the totality of crimes committed after the first verdict, if there are grounds provided for in Art. 74 of the Criminal Code of the Russian Federation, cancel the suspended sentence and impose punishment according to the totality of sentences (Article 70 of the Criminal Code of the Russian Federation), then according to the totality of crimes committed before the first sentence was passed, and assign the final punishment according to the rules of Part 5 of the commented article.
15. Courts of the first, appellate and cassation instances have the right to reclassify a criminal act from one article to several other articles or parts of articles of the criminal law, providing for liability for less serious crimes, if this does not worsen the position of the convicted person and does not violate his right to defense. In this case, the punishment imposed for the totality of crimes cannot be more severe than the maximum punishment provided for by the sanction of the article of the Criminal Code of the Russian Federation under which the act was classified in the indictment, indictment, indictment.
The court of appeal or cassation, instead of the rules applied by the verdict for the absorption of punishments imposed for a set of crimes, has the right to apply the rules for their addition in cases where these courts commute the punishment for one or more crimes. In this case, the punishment should not exceed the amount of punishment imposed by the sentence, taking into account changes made to it by subsequent courts.
Courts of appeal or cassation, having mitigated punishments for acts included in the totality of crimes, must also soften the final punishment imposed for the totality of crimes. ——————————— See: Review of the practice of the Judicial Collegium for Criminal Cases of the RF Armed Forces for the first half of 2014 (approved by the Presidium of the RF Armed Forces on 07/02/2014) // BVS RF. 2014. N 10.
If, after the verdict comes into force, a criminal law is adopted that mitigates punishment for crimes included in the aggregate, the courts must first mitigate the punishments for individual crimes, then mitigate the final punishment. ——————————— See: Review of judicial practice of the RF Armed Forces for the third quarter of 2013 (approved by the Presidium of the RF Armed Forces on 02/05/2015) // BVS RF. 2014. N 5.
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Punishment by aggregate
- Part 1 69 of the Criminal Code
in the aggregate, punishment separately for each crime
I). Absorption
- Part 2 69 Criminal Code
a list of situations when the more strict absorbs the less strict:
- Part 2 69 Criminal Code
absorption - if the end result is of small to moderate severity
- Part 2 69 Criminal Code
absorption - if preparation for heavy, especially grave
- Part 2 69 Criminal Code
absorption - if the attempt is serious, especially serious
- Part 2 69 Criminal Code
final punishment, maximum 150% for the most serious
II). Partial addition
- Part 3 69 Criminal Code
severe, especially severe - there may be partial addition
III). Complete addition
- Part 3 69 Criminal Code
heavy, especially heavy - may be full addition
Maximum limit
- Part 3 69 Criminal Code
final term, maximum 150% of the term for the most serious
Additional penalties
- Part 4 69 Criminal Code
addition of additional punishments not exceeding the limit of this type
After the verdict
- Part 5 69 Criminal Code
if after the verdict another crime is established
PLENAMA OF THE Supreme Court
- paragraph 50
Plenum No. 58 punishment based on the totality of crimes and sentences
- paragraph 33
Plenum No. 55 requirements for a sentence in case of aggregation of crimes
— clause 6
Plenum No. 9, the purpose of prison for a combination of crimes
Punishment in aggregate
Three mechanisms
penalties: absorption, partial addition, full addition
SITUATIONS from practice
Punishment for several
episodes, how exactly it develops
Article 69 of the Criminal Code. Assignment of punishment for a set of crimes
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- Part 1 17 Criminal Code
in the aggregate, liability for each (
Part 1 69 of the Criminal Code
)
- paragraph 34
Plenum No. 55 specification of punishments for certain crimes
1) In case of aggregation of crimes, punishment is assigned separately for each crime committed.
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Absorption
Absorption of punishments
, the more strict absorbs the less strict (
Part 2 69 of the Criminal Code
)
2) The final punishment is imposed
by absorbing a less severe punishment with a more severe one (or by partial or complete addition of the imposed punishments), if all crimes committed in aggregate are crimes of:
- minor or medium gravity,
— preparation for something serious or especially difficult,
— attempted grave or especially grave crime.
In this case, the final punishment cannot exceed more than half the maximum term or amount of punishment provided for the most serious crime committed.
3) If at least one of the crimes committed
in aggregate is grave or especially grave, then the final punishment is imposed by:
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Partial addition
Partial addition
, part of the punishment is “eaten” (
Part 3 69 of the Criminal Code
)
—
partial addition of punishments.
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Complete addition
Complete addition
, strictly according to the rules of arithmetic (
Part 3 69 of the Criminal Code
)
- or
complete addition of punishments.
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- paragraph 16
Plenum No. 29 multi-episode on theft, robbery, robbery not higher than 1/2
Limitation
Maximum limit
punishment, the most severe and 50% of it
In this case, the final punishment in the form of imprisonment
cannot exceed more than half the maximum term of punishment in the form of imprisonment provided for the most serious crime committed.
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- paragraph 60
Plenum No. 58 main and additional punishment in combination
additional types
of punishment may be added to the main types of punishment . The final additional punishment in case of partial or complete addition of punishments cannot exceed the maximum term or amount provided for this type of punishment by the General Part of the Criminal Code.
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- paragraph 53
Plenum No. 58 punishment in the case provided for
in Part 5 69 of the Criminal Code
- clause 44
Plenum No. 58 if there is no relapse before the verdict is passed
5) According to the same rules, punishment is imposed if, after the court has rendered a verdict in the case, it is established that the convicted person is also guilty of another crime committed by him before the
court’s verdict in the first case.
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- paragraph 35
Plenum No. 55 credit for the time served for the first sentence
- paragraph 22
Plenum No. 21 question on the offset of the term in the execution of the sentence
In this case, the final punishment includes the sentence served under the first court verdict.
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