Replacement of the unserved part of the sentence with a more lenient form

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Replacing part of the punishment. Concept

Russian legislation, as an incentive for convicts who comply with the standards of being incarcerated in a correctional institution, and who have proven by their behavior that they can correct their behavior and attitude towards others without applying harsh penalties to them, is given the opportunity to replace the unserved part of the punishment with a more lenient punishment. This can only be attributed to those sentences that those actually partially guilty of committing criminal acts have already served.

That is, when the punishment imposed by a court verdict for a crime committed is carried out. The criminal law allows the replacement of the unserved part of the sentence with a milder type of punishment only in cases where, by a court verdict, the convicted person is sentenced to restriction of freedom or, for military personnel, to detention in a disciplinary military unit for a certain period.

Replacement of the unserved part of the sentence with a more lenient type of punishment can only be by court decision. It is important that the law does not have retroactive force. If a person for whom the remainder of the unserved sentence was replaced with a more lenient punishment, during this period committed a new criminal act against people or society, then:

To the punishment imposed for a new crime, a part of the unserved punishment will be added in a milder form, and not the one originally assigned.

How much can the fine be reduced?

According to paragraph 3 of Art. 114 of the Tax Code of the Russian Federation, if there is at least one mitigating circumstance, the punishment must be reduced by at least 2 times compared to the original amount.

At the same time, paragraph 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 states that paragraph 3 of Article 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing sanctions. Based on the results of an assessment of the circumstances, the court has the right to reduce the amount of the penalty by more than half and even make it below the minimum amount (see letters from the Ministry of Finance of Russia dated May 16, 2012 No. 03-02-08/47, dated January 30, 2012 No. 03-02-08 /7).

However, neither the Federal Tax Service nor the court can reduce the amount of sanctions to zero, since this action will be considered an exemption from liability for the offense committed.

If there are mitigating facts, only the amount of penalties applied can be reduced; the amount of taxes and penalties on these grounds cannot be reduced.

A sample petition to the tax office to reduce the fine, which can be downloaded at the end of the article, is based on the circumstances given in paragraphs. 3 p. 1 art. 112 of the Tax Code of the Russian Federation.

Grounds for substitution of punishment

When, while serving a sentence, it is clear to the convicted person that the main goal pursued by the chosen punishment can be achieved by less severe methods, in this case it is possible to replace the unserved part of the punishment with a more lenient form.

For this, as with parole, it is necessary that the grounds for mitigation of the sentence be met.

First, a person who bears his sentence for an actual criminal offense, which is classified as minor or moderate, must serve no less than a third of the sentence that was originally awarded to him.

If the crime committed for which he is punished had grave consequences for the victim, the perpetrator must serve no less than half of the sentence imposed by the court.

And in cases where a crime of a particularly serious nature has been committed, the term that the guilty person must serve before dreaming of a mitigation of the sentence must be two-thirds of the corrective sentence imposed by the court.

When a convicted person is serving a sentence for a sexual offense against children under 14 years of age, he must serve at least eighty percent of the sentence imposed under strict conditions of serving the sentence.

In addition to the presence of mandatory conditions that are necessary in order to be able to reconsider the replacement of punishment with less severe forms, it must become clear that the convicted person has really embarked on the path of correction. That is, there must be positive characteristics from the place where the sentence is served, his attitude towards the crime committed, a conscientious attitude towards work and study. It is desirable to have some kind of incentives, active participation in the public life of the correctional institution in which the convict is serving his sentence for committing unlawful acts against people and society.

How the decision is made

The decision to change the punishment towards mitigation is made exclusively by the court. The latter must necessarily take into account the following characteristics of the convicted person:

behavior;
his attitude to study and work within the period of serving his sentence, his attitude to the committed act;
actual reparation of the harm caused - in part or in full.

In relation to a sane convict who suffers from a disorder of sexual preference (pedophilia), and who, as an adult, has committed a crime against the sexual integrity of a minor under 14 years of age, the court also takes into account:

the use or absence of compulsory medical measures against the offender;
his attitude towards treatment (voluntary/compulsory);
results of forensic psychiatric examination.

The procedure for making a decision

As already mentioned, the court makes a decision after analyzing the objective data presented by the convict, the administration of the penal institution, characterizing the criminal himself and the measures that were taken for his re-education, correction and even treatment.
In addition, the law directly stipulates what can be replaced and how: in parts 2 and 3.

Procedurally, this happens in accordance with Art. 397, 399 Code of Criminal Procedure of the Russian Federation.

Download for viewing and printing:

Article 397 of the Criminal Procedure Code of the Russian Federation “Issues to be considered by the court when executing a sentence”

Article 399 of the Criminal Procedure Code of the Russian Federation “Procedure for resolving issues related to the execution of a sentence”

How is it happening now?

Special changes to the procedure for applying Art. has not changed since 2014. The only thing additionally included in it in 2021 is the possibility of application to persons suffering from pedophilia.

Terms of sale

This article also has practical aspects of application.
Thus, the unserved part may be replaced by a more lenient measure of state coercion after the actual serving of a prison sentence by a person sentenced to imprisonment for committing:

acts of minor/medium gravity - from 1/3 of the term or from 1/4 of the term if imprisonment is replaced by forced labor;
serious criminal act - from 1/2 of the term or from 1/3 of the term if imprisonment is replaced by forced labor;
especially serious - from 2/3 of the term or 1/2 of the term, if imprisonment is replaced by forced labor;
criminal acts against the sexual integrity of children, as well as acts provided for in Art. 210 of the Criminal Code, - from 3/4 of the term;
criminal acts against the sexual integrity of children under 14 years of age - from 4/5 of the prescribed period.

In addition, the law states that when replacing the unserved part of a state coercive measure, the court may choose any milder sanction in accordance with the classification of Art. Criminal Code, within the limits provided for by the Criminal Code for each variety. An exception is cases of replacing punishment in the form of imprisonment with forced labor in accordance with Part 2 of Art. .

Download for viewing and printing:

Article 210 of the Criminal Code of the Russian Federation “Organization of a criminal community (criminal organization) or participation in it (it)”

Article 44 of the Criminal Code of the Russian Federation “Types of punishments”

Who is eligible for a replacement?

Any restrictions on the subjects of rights of Art. does not contain. From which we can conclude that any person who meets the above criteria can apply for a replacement.

Statistics of those released on parole and Article 80 of the Criminal Code of the Russian Federation

What promotes replacement

Objective data and subjective characteristics taken into account by the court when making a decision have been described above. Of course, they should all be positive.

The role of exemplary behavior

The behavior of the offender after conviction is taken into account among other data. However, if the offender did nothing else besides this, which may indicate his correction, then this is not enough to make a decision in his favor.

Petition to replace the unserved part of the sentence

Only the court in the area where the correctional institution in which the convicted person is serving his sentence can decide whether to commute the sentence.

In order for the court to consider changing the sentence, a petition must be filed.

A sample application form can be found on the Internet.

Usually, when writing a petition, the name of the court to which the convicted person is applying is indicated; then it is important to indicate the passport details of the applicant.

When referring to the court verdict, it is necessary to indicate the number of the criminal case and the date of the verdict, also under which article the person was convicted and what term of serving the sentence was assigned.

How much time did the convicted person actually serve in prison?

Further, the text part provides a rationale for why the convicted person considers it possible for him to have his sentence changed and the request itself to replace the sentence of the unserved part with more lenient conditions for serving the remaining part of the sentence.

In addition to the application for changing the sentence (petition), it is necessary to collect documents, such as: a photocopy of the court verdict, if there were appeals - their photocopies and copies of the answers; a certificate of available incentives while serving a sentence and other documents that can characterize on the positive side a convict who has served a certain part of his sentence and has reconsidered his attitude towards life and a previously committed crime.

When considering whether to grant the petition, the court will question:

a person serving a sentence because of an earlier criminal offense;
representatives of the correctional institution where he is staying.

In cases where the petition is not granted, it is possible to file a complaint with higher authorities if the convicted person or the lawyer representing his interests considers the decision to be unfair.

Mitigating circumstances are a chance to reduce the fine

The amount of fines accrued based on the inspection report - in the presence of mitigating circumstances - can be reduced. Circumstances mitigating liability for committing an offense are the conditions defined in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation:

1. Difficult personal or family circumstances.

2. Threat or coercion; Financial, service or other dependence.

3. Difficult financial situation of individuals. the person held accountable.

4. Other circumstances that are recognized as such by the court or tax authority considering the case.

Conclusion: the possibility of reducing the size of sanctions is provided for by law. To do this, you need to submit a petition to the tax office to reduce the amount of the fine.

A sample petition to reduce a fine to the tax office can be downloaded at the end of the article.

Types of replacement of the unserved part of the sentence

Replacing punishment with milder forms does not mean complete release of the convicted person from punishment.

Therefore, milder types of punishment include: replacing imprisonment with serving the remaining term in a penal colony, or with forced labor.

If the issue concerns military personnel, then their detention in a disciplinary military unit, as the execution of a sentence imposed by a court, can be replaced by restrictions on receiving ranks and positions during further service.

A more lenient punishment is chosen by the court, taking into account the goals pursued by the punishment and the possibility of the convicted person to take the path of correction under more lenient conditions of punishment.

It is important to note that if, during conditional early release, the main goal of imposing a sentence is the correction of the convicted person, then in the case when the right can be applied to replace the assigned punishment with milder forms, the person has already embarked on the path of correction, but coercive measures are still required .

It should be remembered that persons sentenced to life in prison or sentenced to pay a fine are not included in the number of people convicted of a criminal offense who may have a reduced sentence.

Author of the article

Independent petition to the court to change the preventive measure

The topic of an application to the court at the place of preliminary investigation of an independent petition to change the preventive measure against the accused in the form of detention to another has attracted me for a long time as a lawyer practicing in criminal cases. It is necessary to immediately explain to readers that by an independent petition of a defense attorney to the court I do not mean an alternative petition to select a less severe measure of restraint during the judicial consideration of the investigator’s petition for detention or extension of detention, but rather a separate petition of the defense attorney addressed to the court.

At one time, one very respected colleague of mine said in a behind-the-scenes conversation that he had said the petition with references to the provisions of Art. 119–120 of the Code of Criminal Procedure of the Russian Federation was filed in one of the distant regions of the Russian Federation, and it was considered by the court. I have not heard of such practical experience of lawyers; I have not found a single court decision, much less a sample of a defense lawyer’s petition in open sources. There will probably be readers among lawyers who will say that they prepared such petitions and the courts considered them, but personally, I heard about only one case, which was not publicly covered, and, despite all the efforts made, I did not find any other information. Surveys of a large number of colleagues also did not lead to the desired result, although my professional circle of contacts, due to my involvement in criminal defense issues, is very extensive.

In general, this is easily explained: in fact, the need to file independent petitions does not always arise. Investigators regularly apply to the court with petitions to extend the period of detention, and in the process of considering such a petition, nothing prevents the defense lawyer from filing an alternative petition. Our judges change the preventive measure to a less strict one extremely reluctantly and only in the presence of some completely egregious and exceptional circumstances. And the excessive activity of the defense attorney in regularly filing independent petitions in the same court, which will subsequently consider the case on the merits, may be assessed negatively by them and, as a result, lead to a deterioration in the attitude towards the potential defendant. Of course, a lawyer can, and probably should, ignore the possible irritation of judges because they are overloaded with extra work if he has reason to believe that his activities will bring a positive result for the client. But in most cases, the question of filing an independent petition to the court to change the preventive measure or filing the same petition, but two weeks later as an alternative to the investigator’s petition, is not of a fundamental nature: the result in both cases is predictable. Another situation may arise when the situation is exceptional and egregious. For example, we are talking about the identification of a serious illness in the accused that prevents detention, the expiration of the statute of limitations for criminal prosecution, an amnesty, the expiration of the maximum period of detention and the simultaneous delay by the investigator in changing the preventive measure. In such circumstances, the defense attorney is simply obliged to respond and take effective measures for the speedy release of the accused, and one of the most effective measures can be an independent petition to the court at the place of the preliminary investigation to change the preventive measure. Reflections on this topic have led me to the conclusion that, despite the great desire to try to form my own, and perhaps legal practice on this issue in general, I should wait for the right opportunity.

There hasn’t been a similar case in my practice for a long time, but my partner in the bureau, lawyer Alexey Kasatkin, spoke about one case in which he is defending (here is the main advantage of team legal work - the opportunity to exchange opinions, advice, mutual assistance, strengthening positions): the accused is held in custody beyond that provided for in Art. 108 of the Code of Criminal Procedure of the Russian Federation deadlines, while the investigation has not been completed. He is accused of a serious crime, and the investigator, 30 days before the expiration of the deadline, presented the accused and the defense lawyer with the materials of the criminal case in accordance with Art. 217 of the Code of Criminal Procedure of the Russian Federation, after which he applied to the court of a constituent entity of the Russian Federation with a petition to extend the period of detention. The court granted this petition, and the next day after the above-mentioned court decision was made, the investigator issued a resolution to resume investigative actions, starting a further active investigation, including interrogations of new witnesses, seizures, inspections of documents, and issuance of decisions to separate the case materials into a separate proceeding. and so on. Thus, although the accused was kept in custody for more than 12 months, the investigation continued and the investigator did not intend to release the client from custody, citing the deadline extended by the court. The court decision to extend the period of detention was appealed, but the higher court refused to satisfy the defense lawyer's complaint on the grounds that it was assessing the legality of a particular court decision at the time of its adoption, and not the current situation in the case and the subsequent manipulations of the investigator. Without going into an assessment of the decision of the appellate court, I will only note that the defense attorney, in fact, has no other option for taking immediate measures to change the accused who is being held in custody beyond the deadlines established by the Code of Criminal Procedure of the Russian Federation, other than filing a corresponding independent petition to the court. remained, since there were still about 2 months left before the expiration of the period previously extended by the court.

In this regard, an independent petition to the court to change the preventive measure was prepared, and - I will please readers with the news about the beginning of the formation of a certain practice - it was even considered and a decision was made.

In the process of preparing this petition, we encountered a number of problems:

There are no special rules in the Code of Criminal Procedure of the Russian Federation regulating the possibility of a defender filing a petition to the court to change the preventive measure, and even more so the procedure for considering such a petition, that is, one could refer to the general provisions of Art. 119–122 Code of Criminal Procedure of the Russian Federation;
no judicial practice, despite all efforts made, was found;
There are also no clarifications from the Supreme Court of the Russian Federation that would describe the procedure for filing such petitions, the timing of their consideration, or the need to attach copies of the case materials on this issue to the petitions;
taking into account the fact that the period of detention exceeded 12 months, the question arose about which court the petition should be filed (district court or court of a constituent entity of the Russian Federation);
Considering that the issue of choosing a preventive measure in relation to the accused in the form of a written undertaking not to leave the place does not fall within the competence of the court, and the deadline for keeping the accused under house arrest had also expired, it was only possible to petition to change the preventive measure to bail.

As a result, we actually prepared the petition at our own discretion, and, given that the court gave it a legal assessment, we can already say that its form, as well as the procedure for filing, were observed by us. It contained references to the general norms of Art. 119–121 of the Code of Criminal Procedure of the Russian Federation, allowing the defense attorney to file motions before the court; provisions of Art. 106 of the Code of Criminal Procedure of the Russian Federation that a preventive measure in the form of bail is chosen only by the court and a suspect, accused and other individual can also apply for the election of a preventive measure in addition to the investigator; norms of art. 110 of the Code of Criminal Procedure of the Russian Federation, containing general provisions on the grounds for changing the preventive measure.

The petition was addressed to the district court at the place of the preliminary investigation, taking into account the provisions of Art. 106 of the Code of Criminal Procedure of the Russian Federation that a petition for the election of a preventive measure in the form of bail is submitted to this court.

The main motivation for the stated petition was that since the last extension of the period of detention, the circumstances of the criminal case have changed, the period of detention of the accused has exceeded 12 months, and the investigation continues. Naturally, references were also made to the absence in the criminal case of any provisions provided for in Art. 97 of the Code of Criminal Procedure of the Russian Federation, data indicating the need for further application to the accused of the strictest preventive measure in the form of detention, a description of data on the identity of the accused and other standard arguments familiar to all professional defenders. However, the main argument, I emphasize, boiled down to the outrageous situation associated with keeping the accused in custody after the expiration of the deadlines established by Art. 109 of the Code of Criminal Procedure of the Russian Federation.

The petition, by analogy with the corresponding procedure regulated for consideration of investigators' petitions, was accompanied by copies of the criminal case materials and other documents confirming the defense's arguments, including a copy of the investigator's decision to resume investigative actions, copies of protocols of investigative actions carried out, and other documents confirming the fact investigations after the expiration of the maximum period of detention. These copies were certified by the defender, bound, numbered and accompanied by an inventory.

The petition, together with the attached documents, was submitted to the office of the district court at the location of the preliminary investigation body.

From the moment the petition was filed until the moment it was considered by the court, despite regular reminders and statements from the defense lawyer, a total of 1 month and 17 days passed. From this alone we can conclude that the judge thought for a long time about whether to consider this petition on its merits and how to avoid this. From the moment the petition was filed until the moment it was considered, active investigative actions were carried out in the case, and the accused continued to be held in custody.

Unfortunately, the result of consideration of the petition turned out to be negative and quite common for current Moscow judicial practice. The petition was denied, the argument about the expiration of the maximum period of detention remained without any judicial assessment, although from the text of the judicial act itself it follows that it was this that was cited by the defense as the main one. The court limited itself to general wording that, taking into account the circumstances of the criminal case, there is reason to believe that the accused may hide from the investigation or court, threaten witnesses, continue to engage in criminal activity, or otherwise interfere with the proceedings. Of course, this court decision has been appealed, and we can only hope that the appellate court will nevertheless pay attention to the provisions of the criminal procedural legislation and finally assess the fact that the deadlines for detention have expired. If this argument is ignored by the appellate court, the court decision will be appealed further, already in cassation.

From the described situation, at least two conclusions can be drawn, one of which can be characterized as positive. Conclusion No. 1 (positive) - the practice of courts considering independent petitions of defense attorneys to change the preventive measure against the accused exists, and the author of the publication will be happy to share with colleagues a sample of the submitted petition (naturally, without disclosing the data of the accused and other circumstances of the criminal case). Conclusion No. 2 (negative) - Moscow courts, unfortunately, in most cases ignore the most blatant cases of violations of the procedural rights of the accused and follow the lead of representatives of the prosecution, thereby covering up the illegal actions they commit.

We can only hope that not all criminal cases and the attitude of judges towards them on the territory of the Russian Federation are the same (our situation is still slightly different, taking into account the specifics of operational support, the identity of the accused himself, and other circumstances that are not related to the legality of decisions made, but informally by judges are taken into account), and our colleagues will take advantage of the described experience, which will lead not only to the consideration of the declared independent petition to change the preventive measure, but also to its satisfaction.