Commentary to Art. 80 Criminal Code
1. The type of exemption from punishment under consideration is optional, i.e. the resolution of the issue depends on the discretion of the court. For its use, conditions and grounds must be present.
2. Conditions of application: the court has the right to replace only such basic types of punishment as detention in a disciplinary military unit, forced labor and imprisonment. In addition, the convicted person must fully or partially compensate for the damage caused.
A person may also be fully or partially released from any additional type of punishment if the additional punishment has not been executed by the time of replacement.
The unserved part of the sentence in the form of imprisonment can be replaced by a more lenient type of punishment only after the convicted person has actually served part of the sentence, which depends either on the category or on the type of crime (Part 2 of Article 80 of the Criminal Code). The law does not provide for such a condition for detention in a disciplinary military unit and forced labor.
3. Serving part of the imposed sentence allows the law enforcement officer to establish such positive changes in the behavior of the convicted person that indicate that for his further correction he no longer needs to fully serve the sentence imposed by the court, and it can be replaced with a more lenient one (grounds for application).
In relation to a convicted person suffering from a disorder of sexual preference (pedophilia), which does not exclude sanity, and who, at the age of over eighteen years, has committed a crime against the sexual integrity of a minor under fourteen years of age, the court also takes into account the application of compulsory medical measures to the convicted person, his attitude towards treatment and results of forensic psychiatric examination.
4. When replacing the unserved part of the sentence, the court may choose any milder type of punishment in accordance with the types of punishments provided for in Art. 44 of the Criminal Code. The choice of a specific type of punishment depends on whether it is possible to achieve with its help the goals of restoring social justice, correcting the convicted person and preventing the commission of new crimes. In this case, the court is guided by the terms or amounts established by the Criminal Code for each of the specified types of punishment.
5. The replacement of the unserved part of the punishment with a more lenient type of punishment is final.
6. If a person commits a new crime, the unserved part of the punishment that replaced detention in a disciplinary military unit, forced labor or imprisonment is added to the punishment imposed by the last sentence.
7. The replacement of the unserved part of the sentence with a milder form is carried out by the court at the place of serving the sentence being replaced, upon the proposal of the institution or body executing it. At the same time, this provision does not prevent the convicted person from filing a petition with the court to replace the unserved part of the sentence with a more lenient form (Determination of the Constitutional Court of the Russian Federation of October 20, 2005 N 388-O).
Article 80. Replacement of the unserved part of the punishment with a more lenient type of punishment
The son was sentenced under Article 228 Part 4 to 6 years of strict regime. June 2, 2021 will be 3/4 of the term. He will write an application for parole. According to the amendments, is it possible to write a statement, because according to the changes in the Criminal Code, parole begins when 2/3 of the term has been served. Can my son be released on parole earlier? There are no violations, a lot of encouragement, it works.
Changes to the Criminal Code of the Russian Federation from January 10, 2021
Amendments to parole in 2021 provide for release under an amnesty when the sentence is commuted or the term of serving the sentence is reduced. Such measures are also applied as a matter of priority to cancer patients, pregnant women and disabled people, citizens who are raising children under 18 years of age or in need of support and care, and participants of the Second World War.
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a) part one, after the words “mild punishment”, should be supplemented with the words “except for cases of replacing punishment in the form of imprisonment with forced labor in accordance with part two of this article”;
There is no news about the amnesty for the so-called “Putin project” (in connection with the coronavirus) and the LDPR project (for the 30th anniversary of the State Emergency Committee). In 2020, the most likely date, if the amnesty is applied in its current form, is April 27 (115th anniversary of the establishment of the State Duma). If the resolution is adopted, it will be published in Rossiyskaya Gazeta.
Reasons for applying parole
Implementing the powers granted to him by Article 71 of the Constitution of the Russian Federation in the field of regulation and protection of human and civil rights and freedoms (clause “c”), as well as criminal legislation (clause “o”), the federal legislator established in Article 80 of the Criminal Code of the Russian Federation that a person For a person serving imprisonment, the court may replace the remaining unserved part of the sentence with a more lenient type of punishment, taking into account his behavior during the period of serving the sentence and when he actually serves the part of the sentence specified in the law (parts one and two). Such legal regulation, ensuring the implementation of the right of everyone convicted of a crime, enshrined in Article 50 (Part 3) of the Constitution of the Russian Federation, to ask for a mitigation of the sentence imposed on him, at the same time serves the principle of saving criminal repression arising from the constitutional principles of humanism and justice, which involves the use of only necessary and coercive measures of criminal legal response sufficient to achieve its goals. Within the meaning of Article 80 of the Criminal Code of the Russian Federation, the basis predetermining the possibility of replacing the unserved part of the punishment with a milder type of punishment is the behavior of the convicted person during the period of serving the sentence, subject to a comprehensive judicial assessment in conjunction with other data characterizing it (including attitude to work, the committed act, etc.) .P.). Thus, when resolving the relevant issue, the court evaluates positive changes in the behavior of the convicted person, indicating the possibility of mitigating criminal repression to the necessary and sufficient minimum of coercive measures to ensure the achievement of the goals of punishment (Determination of the Constitutional Court of the Russian Federation of January 17, 2013 N 2-O).
Certain inconsistencies emerged that required adjustments based on the needs of society. After all, it is in his interests that the criminal is isolated, or his return is allowed after completion of punishment.
Second commentary to Art. 80 of the Criminal Code of the Russian Federation
1. Replacing the unserved part of a sentence with a milder type of punishment (as opposed to parole) can only be applied to persons serving a sentence in the form of detention in a disciplinary military unit, forced labor or imprisonment.
If, during conditional early release, the main goal of punishment - the correction of the convicted person - has practically already been achieved, then when replacing the unserved part of the sentence with a more lenient type of punishment, this goal has not yet been achieved and the need to use state coercive measures has not yet disappeared, although further correction of the convicted person can be ensured the use of punitive-educational influence of less intensity.
2. The material basis for replacing the unserved part of the sentence is the convict’s firm establishment on the path of correction, as evidenced by his good behavior and conscientious attitude to the performance of duties throughout the entire period of serving the sentence, including full or partial compensation for the harm caused by the crime. The application of Article 80 of the Criminal Code of the Russian Federation is not limited to the categories of crimes for which convicts are serving sentences: it can be applied to persons serving a sentence of imprisonment for crimes of any category.
3. The law establishes the only formal condition necessary for replacing the unserved part of the punishment with a more lenient type of punishment. It consists of actually serving a certain part of the sentence imposed by the court. In accordance with part 2 of Art. 80 of the Criminal Code of the Russian Federation, the unserved part of the punishment may be replaced by a more lenient type of punishment after the actual serving of the convicted person for committing:
- crimes of minor or medium gravity - at least one third of the sentence;
- serious crime - not less than half the sentence;
- especially serious crime - not less than two-thirds of the sentence;
- crimes against the sexual integrity of minors, as well as crimes provided for in Article 210 of the Criminal Code - at least three quarters of the sentence:
- crimes against the sexual integrity of minors under fourteen years of age - no less than four-fifths of the sentence.
Replacing imprisonment with forced labor in accordance with Article 80 of the Criminal Code is possible after a person convicted of a crime of minor or moderate gravity has served one-fourth, for a serious crime - one-third, and for a particularly serious crime - half of the term of imprisonment imposed by the court. Imprisonment imposed for crimes against the sexual integrity of minors, as well as for crimes provided for in Article 210 of the Criminal Code, can be replaced by forced labor only after serving three-quarters, and for crimes against the sexual integrity of minors under 14 years of age - four-fifths of the term of imprisonment.
4. The issue of applying Article 80 of the Criminal Code is considered by the court at the place where the sentence is served on the proposal of the institution or body in charge of executing the sentence. The type of punishment that replaces the unserved part of the sentence imposed by a court verdict is chosen by the court in accordance with the types of punishments listed in Article 44 of the Criminal Code, taking into account the nature of the crime committed, the amount of damage caused and its compensation, other circumstances, as well as the degree of correction of the convicted person. At the same time, a more lenient type of punishment can be imposed only within the limits established for it by law, even if the unserved part of the initially imposed punishment exceeds these terms (Part 3 of Article 80 of the Criminal Code). Thus, if 1.5 years of an unserved sentence of imprisonment is replaced by arrest, then its duration cannot exceed 6 months.
5. When considering a petition from a convicted person or a submission from the administration of an institution or body executing a sentence to replace the convicted person’s unserved part of the sentence with a milder form of punishment, the court is obliged to take into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence, his attitude towards the committed act, and then that the convicted person partially or fully compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime. If a convicted person who, at the age of over eighteen, has committed a crime against the sexual integrity of a minor under fourteen years of age, suffers from a disorder of sexual preference (pedophilia), which does not preclude sanity, the court must also take into account the application of compulsory medical measures to the convicted person, his attitude to treatment and the results forensic psychiatric examination.
6. When replacing the unserved part of the sentence with a milder type of punishment, the convicted person, at the discretion of the court, may be fully or partially released from serving an additional sentence imposed by a court verdict (Part 1 of Article 80 of the Criminal Code). Persons for whom the unserved part of the sentence imposed by a court verdict was replaced by a more lenient type of punishment, on the grounds and in the manner established in Article 79 of the Criminal Code, may be released on parole early from further serving this new type of punishment.
7. Exemption from serving part of the sentence imposed by the court with the replacement of a more lenient punishment is unconditional and cannot be cancelled. If, after such a replacement, a person commits a new crime while serving a more lenient punishment, then the unserved part of the more lenient punishment is added to the newly imposed punishment for the second sentence.
8. The period for expunging a criminal record when replacing the unserved part of imprisonment with a milder type of punishment is calculated based on the actually served term of imprisonment, but the expiration period for a criminal record begins from the moment of serving the main (assigned in accordance with Article 80 of the Criminal Code) and additional punishment (Part 4 Article 86 of the Criminal Code). For example, the expiration date of a criminal record, which, on the basis of paragraph “c” of Part 3 of Art. 86 of the Criminal Code is equal to three years, begins to be calculated from the moment of serving a new type of punishment imposed in place of the unserved part of imprisonment, if an additional punishment was not imposed or the convict was released from serving it, or after serving an additional sentence.
Replacing other types of punishment with a more lenient one does not affect the calculation of the expiration period for a criminal record, since in all cases it is equal to one year (clause “b”, part 3 of article 86 of the Criminal Code).
Legal advice
Part 2 art. 53.1. It is proposed to add the phrase “except for cases of replacing punishment in the form of imprisonment with forced labor in accordance with Article 80 of this Code.” That is, relaxations will become possible even for persons with long periods of stay in the MLS.
Replacement of punishment, in accordance with Part 3 of Art. 80, at the discretion of the court, any more lenient sentence provided for in the article for this crime may occur. There are 2 important conditions - full or partial compensation for the harm caused by the crime and exemplary behavior of the convicted person while serving. The court also evaluates the convict’s repentance and his attitude to work. A petition for a replacement can be submitted by a prisoner or the penal institution can send a request for this if it considers that the prisoner deserves release under Art. 80 of the Criminal Code of the Russian Federation.
