The question of deferment of serving a sentence for those convicted under Art. 106 Criminal Code of the Russian Federation

The question of deferment of serving a sentence for those convicted under Art. 106 Criminal Code of the Russian Federation

Part 1 art. 82 of the Criminal Code of the Russian Federation provides that for a convicted pregnant woman, a woman who has a child under the age of fourteen, a man who has a child under the age of fourteen and is the only parent, with the exception of the listed persons, the court may defer the actual serving of the sentence until the child reaches the age of fourteen . The above-mentioned exception is made by persons who have committed serious, especially serious crimes and crimes against the sexual integrity of persons under 14 years of age. Exceptions are also made for those convicted under certain individual articles of the Criminal Code of the Russian Federation.

However, this list does not include those convicted under Art. 106 of the Criminal Code of the Russian Federation (murder of a newborn child by a mother). This crime belongs to the category of crimes of medium gravity and is punishable by a shorter term of imprisonment than murder (Part 1 of Article 105 of the Criminal Code of the Russian Federation) and qualified murder (Part 2 of Article 105 of the Criminal Code of the Russian Federation). The problem is that the murder of a newborn child by a mother is a crime that clearly indicates the danger that the offender poses to children. The legislator has rightly excluded from the list of persons who may be granted a deferment of serving their sentences those who have committed crimes against the sexual integrity of minors, as well as serious and especially grave crimes.

However, the murder of a newborn child by a mother does not fall into these categories. It should be noted that this crime is not only particularly cynical and cruel, as it contradicts human nature itself, but also poses a direct danger to children.

Thus, by the verdict of the Industrial District Court of Kursk dated July 7, 2011 No. 1-272-11g, a woman who gave birth to a child secretly and killed him behind garages because of her unwillingness to support him, leaving the newborn in the snow and covering him with snow, was sentenced to three years of imprisonment. It was established that the intention to kill the child existed from the very beginning, i.e. was formed before childbirth. Thus, there was a desire to commit murder, dictated by an extreme degree of cynicism. And, having given birth to a child, the condemned woman put her plan into action.

The criminal had young sons, therefore the court on the basis of Part 1 of Art. 82 of the Criminal Code of the Russian Federation, the punishment imposed on the convict was deferred until her sons reached the age of fourteen.

The nature of the crime for which the criminal was convicted clearly indicates the extremely high degree of danger that she poses to her remaining children, whose brother she killed. This particular case is a special example.

On the other hand, the very corpus delicti under Art. 106 of the Criminal Code of the Russian Federation, implies a threat to children. It is on the basis of such signs that the legislator has established the impossibility of deferring the serving of sentences for persons who have committed serious, especially serious crimes and crimes against the sexual integrity of minors. The main feature underlying these exceptions is the danger that the offender poses to the children for whose upbringing and maintenance the court is suspending the serving of the sentence.

Based on the above, it would be preferable to raise the issue of inclusion in the list of exceptions in Part 1 of Art. 82 of the Criminal Code of the Russian Federation also convicted under Art. 106 of the Criminal Code of the Russian Federation, which will correspond to the logic of this article.

Everything about criminal cases

Url Additional information:

— clause 8, part 1 299 of the Code of Criminal Procedure

When passing a sentence, the court decides whether to grant a reprieve

— clause 2, part 1, 398 Code of Criminal Procedure

deferment of execution of a sentence with a child under 14 years of age

- The first stage at which a deferment can be granted is the sentencing stage.

- if the petition is filed during the trial, then the court is obliged to consider this issue and include in the verdict a clause stating what decision was made ( clause 8, part 1, 299 of the Code of Criminal Procedure

).

- technical nuance: the position of the prosecutor - in practice, when the defense demands a deferment precisely at the sentencing stage, prosecutors never agree with this, and argue their disagreement like this: “ I believe that the issue of deferment should not be resolved now, but at the execution stage sentence

". You can call it tradition.

Normative base

—
clause 8, part 1, 299 of the Code of Criminal Procedure,
when passing a sentence, the court decides whether to grant a reprieve

—
clause 2, part 1, 398 of the Code of Criminal Procedure
, deferment of execution of a sentence with a child under 14 years of age

When exactly to file a petition?

?

Question

: At what point in the trial should we petition the judge?

The trial process is quite long, there are several stages: opening hearing, judicial investigation, debate. When to submit a petition?

The best moment

Url Additional information:

— Part 1 291 Code of Criminal Procedure

last moment at the end of the judicial investigation (question asked)

- it is most correct to do this at the end of the judicial investigation, at the moment provided for in Part 1 291 of the Code of Criminal Procedure

, when, before moving on to the debate, the judge asks the question “do the parties have any additions to the judicial investigation? "

- at this moment we turn to the judge “Your Honor, there is a motion”;

- then we submit a written petition and attachments to it through the bailiff.

Question

: Is it possible to apply earlier or later?

In principle, this is not prohibited, it is just less competent.

Url Additional information:

— Part 1 271 Code of Criminal Procedure

first moment at the beginning (asks about motions)

a) can be stated in the preparatory part of the court hearing, at the time provided for in Part 1 271 of the Code of Criminal Procedure

when the judge asks "are there any parties to the motion?"

But this, although it does not violate anything, is too early. This moment itself is intended for other petitions: for those that are related to the judicial investigation (summoning witnesses, experts).

The judge may even reject the motion by simply saying “file it later, now is not the time.”

b) can also be submitted during the debate. But it is also illiterate. After all, the judge will have to study the petition, the materials, and transfer it to the prosecutor for study. This is all inappropriate for the debate stage. Of course, the judge cannot refuse to accept the petition, but why cause his annoyance?

Appeal

Url Additional information:

- paragraph 20

Plenum No. 26 any type of mitigation is possible in an appeal

If the trial court refused to grant a deferment, can the appellate court correct this? Yes, this is possible, according to paragraph 20

Plenum No. 26 in an appeal, any mechanism for mitigating the situation of the convicted person can be used.

Cassation

In cassation everything is more complicated. No, the court of cassation has the power to consider the court’s refusal to defer unfounded and change this decision. But here the probability is lower, because the verdict has already entered into force. This means that the possibility of proceedings in execution of the sentence has already been activated (Chapter of the Criminal Procedure Code). That is, at the cassation stage there is already a different, parallel legal mechanism.

Hidden danger

It is important for legal practitioners to know one more nuance: including a request for a deferment in a cassation appeal can be harmful. About it here: Danger

application for a deferral at the cassation stage.

Suspended sentence

Initially, in Russian law, deferment in criminal cases was applied only to women since 1992. Men have been involved in this measure only since 2010.

Deferment of execution of a sentence is one of the measures of a criminal law nature, which is the non-involvement of a convicted person in the execution of a sentence due to its inexpediency and it is impossible to have the desired positive effect at the moment.

Simply put, a deferment is a free period of time during which the convicted person is obliged to resolve certain issues in his life that prevent the execution of the sentence.

The basis of deferment of punishment is the principle of humanism . The legislator assumes that by depriving a criminal of his freedom, he may infringe on the interests of his family members who need his support.

A deferment of execution of a sentence can be applied both at the stage of sentencing and already in the process of serving the type of punishment approved by it.

Can the court grant a second reprieve?

Hello. Can the court grant a second reprieve?

Lawyer Antonov A.P.

Good afternoon

According to Art. 398 of the Criminal Procedure Code, the execution of a sentence convicting a person to compulsory labor, correctional labor, restriction of freedom, forced labor, arrest or imprisonment may be postponed by the court for a certain period if one of the following grounds is present: 1) illness of the convict that prevents the serving of the sentence , - until his recovery; 2) the pregnancy of the convicted person, the presence of a young child, the presence of a young child of a convicted person who is the only parent - until the child reaches the age of fourteen years, with the exception of convicted persons who have been sentenced to restriction of freedom, imprisonment for crimes against the sexual integrity of minors, under the age of fourteen years, imprisonment for a term of over five years for grave and especially grave crimes against the person, imprisonment for crimes provided for in articles 205, 205.1, 205.2, 205.3, 205.4 and 205.5, parts three and four of article 206, part four Article 211, Article 361 of the Criminal Code of the Russian Federation, and crimes related to the implementation of terrorist activities provided for in Articles 277, 278, 279 and 360 of the Criminal Code of the Russian Federation; 3) grave consequences or the threat of their occurrence for the convicted person or his close relatives, caused by a fire or other natural disaster, serious illness or death of the only able-bodied family member, other exceptional circumstances - for a period established by the court, but not more than 6 months. 4) the voluntary desire of a convicted person who has been sentenced to imprisonment for the first time for committing crimes provided for in part one of Article 228, part one of Article 231 and Article 233 of the Criminal Code of the Russian Federation, recognized as a drug addict, to undergo a course of treatment for drug addiction, as well as medical treatment. social rehabilitation - until the end of the course of treatment for drug addiction and medical and social rehabilitation, but not more than five years. Payment of a fine may be deferred or spread over a period of up to five years if immediate payment is impossible for the convicted person. The issue of deferring the execution of a sentence is decided by the court at the request of the convicted person, his legal representative, close relatives, defense lawyer, or upon the proposal of the prosecutor. Thus, the court can repeatedly grant a deferment of execution of the sentence, but the total period of all deferments should not exceed 5 years.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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According to the current legislation of the Russian Federation, a child is a person who has not reached the age of eighteen years (the age of majority) (Article 54 of the Family Code of the Russian Federation).

From the moment of birth, a person acquires by law the ability to have rights

and bear
responsibilities (legal capacity).
Legal capacity

citizen - the ability to have civil rights and bear responsibilities. The legal capacity of a citizen arises at the moment of his birth and ends with death (Article 17 of the Civil Code of the Russian Federation).

However, the real exercise of rights and responsibilities is possible only as the child grows up.

Capacity

citizen - the ability of a citizen, through his actions, to acquire and exercise civil rights, create civil responsibilities for himself and fulfill them (Article 21 of the Civil Code of the Russian Federation).

Every year the capacity

increases and becomes complete by the age of 18, when each person
becomes an adult.
Age: from 0 months to 6 years.

The child is incompetent

, this is explained by the fact that the child, due to his young age, cannot understand and be responsible for his actions.

Has an inalienable right to life (Article 6 of the UN Convention on the Rights of the Child, Part 1 of Article 20 of the Constitution of the Russian Federation).

Acquires the right to citizenship (Article 7 of the UN Convention on the Rights of the Child).

Has legal capacity

according to civil law (Article 17 of the Civil Code of the Russian Federation).

Has the right to a first name, patronymic and last name (Article 7 of the UN Convention on the Rights of the Child, Article 58 of the Constitution of the Russian Federation).

Has the right to live and be raised in a family, to know his parents, to receive from them protection of his rights and legitimate interests (Articles 9, 12 of the UN Convention on the Rights of the Child, Article 54 of the Family Code of the Russian Federation).

The right to use the most advanced health care services and means of treating illnesses and restoring health (Article 24 of the UN Convention on the Rights of the Child).

A bank account may be opened in his name.

Has the right to attend preschool educational institutions (Article 67 of the Federal Law “On Education in the Russian Federation”).

All transactions in his interests are carried out by his parents or legal representatives (Article 28 of the Civil Code of the Russian Federation).

Age: from 6 years to 14 years

The child has partial legal capacity

, that is, he cannot make all transactions, but only those that he needs every day, that is, small household transactions. This means that he can buy any products, stationery, and other things and items in the store. It can also make transactions aimed at obtaining benefits that do not require notarization or state registration. If he cannot conclude a deal, his parents, adoptive parents or guardians can act on his behalf.

Parents, adoptive parents or guardians bear property liability for his transactions, including transactions made by him independently, unless they prove that the obligation was violated through no fault of theirs.

Age 6 years.

From the age of 6 years 6 months, a child has the right to attend school (upon the application of parents, adoptive parents or guardians and with the permission of the founder of the educational institution, he can begin education at an earlier age) (Article 43 of the Constitution of the Russian Federation).

He has the right to independently conclude:

• small household transactions;
• transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
• transactions for the disposal of funds provided by legal representatives
  (Article 28 of the Civil Code of the Russian Federation).

Age 8 years.

A child can join children's public associations (Article 19 of the Law “On Public Associations”).

From this age, responsibility begins in the form of placement in a special open-type educational institution (Article 15 of Federal Law No. 120 “On the fundamentals of the system for the prevention of neglect and delinquency by minors”)

Age 10 years

From this age the child:

Gives consent to change his first and last name (Articles 59, 134 of the Family Code of the Russian Federation);

Gives consent to his adoption or transfer to a foster family, or to the restoration of the parental rights of his parents (Article 132 of the Family Code of the Russian Federation).

You have the right to express your opinion when resolving any issue in the family that affects your interests (Article 57 of the Family Code of the Russian Federation).

The right to be heard during any judicial or administrative proceedings (Article 57 of the Family Code of the Russian Federation).

Age 11

Responsibility comes in the form of placement in a special closed educational institution for children and adolescents (special school, special boarding school, etc.) with deviant (socially dangerous) behavior (Article 22 of the Federal Law “On Education in the Russian Federation”, Article 15 of the Federal Law Law No. 120 “On the fundamentals of the system for the prevention of neglect and juvenile delinquency”).

Age: from 14 years to 18 years

Legal capacity of a minor:

he has already gained some life experience, he can be aware of and responsible for his actions. Therefore, the law gives him the right to independently manage his earnings, stipends and other income, and to make small household and some other transactions. He can make deposits with credit institutions. He can also exercise the rights of the author of a work of science, literature or art, invention or other result of his intellectual activity protected by law. He can carry out other transactions with the written consent of parents, adoptive parents, and guardians.

Age 14

From this age, a minor is required to have a passport of a citizen of the Russian Federation (Resolution of the Government of the Russian Federation “On approval of the regulations on the passport of a citizen of the Russian Federation”).

From this age, he gives written consent to renounce citizenship of the Russian Federation together with his parents (Article 9 of the Law “On Citizenship of the Russian Federation”).

Can choose his/her place of residence (with parental consent).

He can independently go to court to protect his rights and interests (Article 56 of the Family Code of the Russian Federation).

With the written consent of the parents (adoptive parents or guardians), he has the right to make any transactions (Article 26 of the Civil Code of the Russian Federation).

The right to dispose of his earnings, scholarships and other income (Article 26 of the Civil Code of the Russian Federation).

May exercise the rights of the author of a work of science, literature or art, invention or other result of his intellectual activity protected by law (Article 26 of the Civil Code of the Russian Federation).

Has the right to change his name, surname and patronymic (Article 58 of the Federal Law “On Acts of Civil Status”), but only with the consent of his parents.

Has the right to make deposits in credit institutions and dispose of them (Article 26 of the Civil Code of the Russian Federation).

It is allowed to enter work to perform light labor that does not cause harm to health during free time from study, subject to the following conditions:

• be a student;
• work is performed only in free time from study and does not interfere with the learning process;
• the consent of the parent (legal representative) and the guardianship authority has been obtained (Article 63 of the Labor Code of the Russian Federation).

Has the right to demand the cancellation of adoption (Article 142 of the Family Code of the Russian Federation).

Has the right to drive a bicycle while driving on the roads.

Can join youth public associations (Article 19 of the Law “On Public Associations”).

It must be remembered that:

From this age, a minor independently bears property liability for transactions made by him (Article 26 of the Civil Code of the Russian Federation).

Subject to criminal liability for certain crimes (Article 20 of the Criminal Code of the Russian Federation):

• murder;
• intentional infliction of grievous bodily harm;
• intentional infliction of moderate harm to health;
• kidnapping, rape;
• sexual assault;
• theft;
• robbery;
• robbery;
• extortion;
• unlawful taking of a car or other vehicle without the purpose of theft;
• intentional destruction or damage to property under aggravating circumstances;
• terrorist attack;
• hostage taking;
• knowingly false report about an act of terrorism;
• aggravated disorderly conduct;
• vandalism;
• theft or extortion of weapons, ammunition, explosives and explosive devices;
• theft or extortion of narcotic drugs or psychotropic substances;
• rendering vehicles or means of communication unusable;
• encroachment on the life of a statesman or public figure;
• attacks on persons or institutions enjoying international protection;
• act of international terrorism.

Age 15 years.

At this age, the child has the right to agree or disagree to medical intervention (Article 54 of the Federal Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation”).

Has the right to enter into an employment contract to perform light work that does not cause harm to health if:

• received general education;
• continues to master the general education program in a form of education other than full-time;
• left a general educational institution before receiving a general education with the consent of the parent (legal representative), the commission for minors and the protection of their rights and the local education authority (Article 63 of the Labor Code of the Russian Federation).

Age 16 years.

A minor can be declared fully capable (emancipation) if he works under an employment contract, including a contract, or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activities (Article 27 of the Civil Code of the Russian Federation).

May be a member of a cooperative (Article 26 of the Civil Code of the Russian Federation).

Has the right to drive a motorcycle, scooter and other motor vehicles.

Has the right to conclude an employment contract (you can work no more than 35 hours a week) (Article 92 of the Labor Code of the Russian Federation).

Can get married, but if there are good reasons (pregnancy, birth of a child) and with the permission of local governments (Article 13 of the Family Code of the Russian Federation).

Having reached this age, you need to know and remember that:

from this moment the minor is subject to administrative liability; bears criminal liability for any crimes.

There is an obligation for young men to undergo training in the basics of military service (Articles 8, 13 of the Law of the Russian Federation “On Military Duty and Military Service”).

Age 17

Young men have an obligation to register for military service (pass a commission at the military registration and enlistment office and receive a registration certificate) (Article 9 of the Law of the Russian Federation “On Military Duty and Military Service”).

So, the child is 18 years old!

Congratulations! Now he is an adult, which means that he becomes fully capable and can, through his actions, acquire any rights and impose any obligations on himself.

Changing a child's last name, first name or full name

Changing a child's name or full name (including last and patronymic) features of the procedure depend on the age of the child (under 14 years old, from 14 to 18 years old, over 18 years old). The issue of changing a child’s name is regulated by:

— Article 58 “The child’s right to a first name, patronymic and last name” and Article 59 “Changing the child’s first and last name” of the Family Code of the Russian Federation.

— Article 58 of the Federal Law of November 15, 1997 N 143-FZ “On Acts of Civil Status”.

Additional practice: Ruling of the RF Armed Forces in case No. 18-KG19-125 of December 3, 2021. https://legalacts.ru/sud/opredelenie-sudebnoi-kollegii-po-grazhdanskim-delam-verkhovnogo-suda-rossiiskoi-federatsii-ot-03122019-n-18-kg19-125/

A change of name is subject to state registration with the civil registry office on the basis of an application. An application for a change of name (full name) must be considered by the registry office within one month from the date of submission of the application. Clause 2 of Article 60 of the Federal Law of November 15, 1997 N 143-FZ “On acts of civil status”.

The change of name is carried out by the civil status authority at the place of residence or at the place of state registration of birth of the person wishing to change the surname, first name and (or) patronymic. Clause 2 of Article 58 Federal Law of November 15, 1997 N 143-FZ “On Civil Status Acts”.

It should be taken into account that changing the First Name (Last Name) of a child after he or she reaches the age of 10 years requires the consent of the child himself!

Clause 5 of Article 59 of the RF IC “A change in the name and (or) surname of a child who has reached the age of 10 years can only be made with his consent.”!

Before the child reaches the age of 14 years, a change of the child’s surname (name) can be carried out by one of the parents: clause 2 of Article 59 of the RF IC “if the parents live separately and the parent with whom the child lives wants to assign his surname, authority Guardianship and trusteeship resolves this issue depending on the interests of the child and taking into account the opinion of the other parent. Taking into account the parent’s opinion is not necessary if it is impossible to establish his whereabouts, deprivation of his parental rights, recognition as incompetent, as well as in cases of parental evasion without good reason from raising and maintaining the child.”

That is, at the request of one of the parents (with whom the child lives), the civil registration authority registers changes with the consent of the guardianship authorities at the place of registration of the child.

When deciding the issue, the guardianship authority, when considering the application, takes into account the opinion of the second parent, with the exception of the cases listed in paragraph 2 of Article 59 of the Family Code of the Russian Federation. The guardianship authority decides how valid these circumstances are and how much it is in the interests of the child to change his first or last name.

The circumstances under which the opinion of the second parent is excluded, listed in Article 59 of the RF IC, must be confirmed. This position is also expressed in the ruling of the Supreme Court of the Russian Federation in case No. 18-KG19-125: “Within the meaning of these rules of law, changing a child’s surname on the basis of an application from one of the parents without taking into account the opinion of the other is possible only in cases provided for by law, namely: when the impossibility of establishing the location of the parent, which is confirmed by a certificate from the internal affairs bodies about the search for the citizen; upon deprivation of his parental rights (based on a court decision); if he is declared incompetent (based on a court decision); in cases of parental evasion without good reason from raising and maintaining a child, which can be confirmed by statements on the search for the alimony payer, documents from internal affairs bodies on the initiation of a criminal case for malicious evasion of alimony payments, a court verdict in such a case and other evidence, and a change of the child’s name until he reaches the age of fourteen - only by joint decision of both parents.

Thus, taking into account the opinion of the second parent is mandatory, and in order to overcome his objection to changing the surname and first name of a minor child, it is necessary to provide such arguments that will indicate the need to carry out these actions in the interests of children who, by virtue of paragraph 1 of Article 3 of the Convention on the Rights of the Child priority is given."

!! Clause 2 of Article 58 of the RF IC “the patronymic is assigned to the child by the name of the father.” Up to 14 years of age changes only in case of adoption. The court's decision.

When the child reaches 14 years of age, the procedure changes. Clause 3 of Article 58 of the Federal Law of November 15, 1997 N 143-FZ “On Acts of Civil Status”.

From the age of 14, a child can submit an application to change his name (full name). Upon receipt of the passport, since the child will have to perform all subsequent actions upon presentation of an identification document, which is a passport, the child can change any part of the full name (first name, last name, patronymic). The law does not prevent you from changing your entire name, but you will need to indicate the reason in your application. The law does not oblige the child to explain whether this reason is valid or not.

A minor can change any part of his name only with the consent of his parents - even after 14 years of age. The child submits the application himself, and the consent of his parents is attached to it. Parents write their consent at the registry office or have it certified by a notary, i.e. the consent of the mother and father is required.

If consent from the parent cannot be obtained, the child can go to court. The court, by its decision, changes the name, the document is submitted to the registry office.

A child can change his name (full name) after reaching 14 years of age and up to 18 years of age without parental consent if he is recognized as fully capable (if he marries before 18 years of age or goes to work under a contract, is engaged in entrepreneurial activity and then requires emancipation (from 16 years of age Full legal capacity is established by decision of the guardianship authorities with the consent of both parents, or by decision of the Court.

RF Article 27. Emancipation. “A minor who has reached the age of sixteen may be declared fully capable if he works under an employment contract, including a contract, or with the consent of his parents, adoptive parents or guardian is engaged in entrepreneurial activity.”

When a child reaches 18 years of age, he has the right to change his full name without parental consent.

After changing your name, you must change your passport, compulsory medical insurance policy, international passport (if available), SNILS (if available).

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