Criminal Code of the Russian Federation in the latest edition:
Article 80.1 of the Criminal Code of the Russian Federation. Exemption from punishment due to a change in situation
A person who has committed a crime of minor or medium gravity for the first time is released by the court from punishment if it is established that, due to a change in the situation, this person or the crime he committed has ceased to be socially dangerous.
Return to the table of contents of the document: Criminal Code of the Russian Federation in the latest edition
Conditions for release due to change in situation
- The crime must be committed for the first time
A first-time offender is not only someone who has not previously committed a crime (this is obvious). A first-time offender is also considered to be someone who had a previous conviction, but it was expunged or withdrawn.
A first-time offender is also considered to be someone who was previously brought to justice, but was released from it through the mechanism of active repentance (Article 75 of the Criminal Code), reconciliation with the victim (Article 76 of the Criminal Code), through a new mechanism of release for economic crimes (Article 76.1 of the Criminal Code ), a judicial fine (Article 76.2 of the Criminal Code) and due to the expiration of the statute of limitations (Article 78 of the Criminal Code).
A first-time offender is also someone who was previously released from punishment in the following ways: expiration of the statute of limitations, release due to illness (see here about release due to illness), after serving parole, and also if previously released due to a change in the situation.
Yes, as we see, changes in the situation can be used repeatedly.
By the way, a first-time offender is also considered to be one who has been released under an amnesty (one of the conditions of the amnesty is, as a rule, the removal of a criminal record). We look at the most likely amnesty here.
- The category of crime must be of minor or moderate gravity
Let me remind you that crimes of minor gravity are crimes with a punishment not exceeding three years of imprisonment, and crimes of moderate gravity - not exceeding five years.
Exemption from punishment due to a change in the situation for serious and especially serious crimes is impossible.
- Eliminating public danger after a crime has been committed
Let's talk about this in more detail.
Deferment of serving sentences for pregnant women and women with young children
In Part 1 of Art. 82 of the Criminal Code of the Russian Federation provides that pregnant women and women with children under the age of fourteen, except those sentenced to restriction of freedom, are sentenced to imprisonment for crimes against the sexual integrity of minors under the age of fourteen, sentenced to imprisonment for a term of over five years For grave and especially grave crimes against a person, the court may defer the actual serving of the sentence until the child reaches the age of fourteen.
The basis for the use of this institution is the inappropriateness of serving sentences for pregnant women (regardless of the stage of pregnancy) and women with children under the age of fourteen (including adopted children). The physiological state of a woman during pregnancy, childbirth, and raising a child affects her psyche, health and can make it difficult for her to reform, and the imposed punishment when convicted of a crime may not achieve its goal. This provision does not apply to a man, who may, in certain cases, be entitled, as a father, to the same benefits as a mother.
The release from punishment of convicted pregnant women and women with children under the age of fourteen is conditional and not final. Providing a woman with a deferment of serving a sentence for the court is optional, i.e., it is a right and not an obligation of the court.
The deferment applies to women, except for those sentenced to imprisonment for a term of over five years for grave and especially grave crimes against the person, which should include not only the acts listed in the seventh section of the Criminal Code of the Russian Federation, but also those provided for in other sections, if in the dispositions of the norms crimes are described that are classified as grave or especially grave, and are associated with attacks on life or health (in particular, Articles 277, 295, 317, etc.).
Part 2 Art. 82 of the Criminal Code of the Russian Federation provides for two grounds for canceling the deferment and the possibility of the court, upon appropriate motion, to cancel the deferment of serving the sentence and send the convicted woman to serve the sentence to the place appointed in accordance with the court verdict:
- if the convicted woman has abandoned the child, this must be documented in writing at the medical institution, signed by the woman and certified by the institution;
- if she continues to evade raising the child after a warning announced by the body exercising control over the behavior of the convicted person, i.e., without officially abandoning the child, she left him in a maternity hospital or transferred him to an orphanage, to other persons, leads an antisocial lifestyle and does not engage in raising a child, caring for him, went into hiding, or commits other actions indicating evasion from raising a child.
In cases where the conditions on the basis of which the deferment was applied have disappeared, in particular in the event of termination of pregnancy, the birth of a stillbirth, or the death of a child, the issue of canceling the deferment must be resolved.
In accordance with Part 3 of Art. 82 of the Criminal Code of the Russian Federation, when a child reaches the age of fourteen, the court may make one of the following decisions:
- releases the convicted person from serving the remainder of the sentence with the criminal record expunged;
- replaces the remainder of the punishment with a more lenient punishment.
The basis for the complete release of a convicted person from serving the remainder of her sentence is her correction, when it is concluded that the convicted person will not commit a new crime. To replace the remaining part of the punishment with a more lenient type of punishment, this is not required; it is enough to establish that the process of correction has begun and the convicted person can be corrected with a more lenient punishment than the one imposed by the court.
If before the child reaches the age of fourteen, a period equal to the term of the sentence, the serving of which was suspended, has expired, and the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence has been suspended, has come to the conclusion that the convicted person has complied with the conditions of the deferment and has corrected him, the court, upon the recommendation of this The authority may decide to shorten the period of deferred serving of the sentence and to release the convicted person from serving the sentence or the remaining part of the sentence with the criminal record expunged.
If, during the period of deferment of serving the sentence, the convicted person specified in part one of this article commits a new crime, the court imposes a punishment on him according to the rules provided for in Art. 70 of the Criminal Code of the Russian Federation.
Eliminating public danger - two options
The first option is that the person who committed the crime has ceased to be socially dangerous.
What must happen to a person who has committed a crime in order to free him from punishment?
Examples from judicial practice:
- entry into service or study, dismissal from work,
- marriage of the perpetrator to the victim,
- deterioration of health.
The second option is that the committed act has ceased to be socially dangerous.
Examples from judicial practice:
- illegal hunting in the reserve was subsequently allowed due to the large number of animals;
- the accused was prosecuted for evading military service, but he had legal grounds for a deferment from conscription (his second child was born, he was enrolling in a university).
Let us present the wording of one of the verdicts to illustrate the logic of the court:
Sentence under Art. 160 of the Criminal Code (misappropriation and embezzlement): “As follows from the case materials, E.O.S. stopped her activities in the company, fully compensated for the damage caused during the investigation; Currently on maternity leave, raising three young children; at the place of residence is characterized on the positive side, in connection with which the Presidium believes that the convicted person, as a person, has ceased to be socially dangerous.” Resolution of the Presidium of the Supreme Court of the Udmurt Republic dated 08/03/2012 N 44 u-121/2012
Right or duty of the court
Strictly according to the wording of Article 80.1 of the Criminal Code, this is the duty of the court:
Article 80.1 of the Criminal Code A person who has committed a crime of minor or medium gravity for the first time is released by the court from punishment if it is established that, due to a change in the situation, this person or the crime he committed has ceased to be socially dangerous.
Attention to the word is freed.
Let us give an analogy with other mechanisms. For example, release with a court fine.
Read more about release by imposing a court fine here
The wording of Article 76.2 of the Criminal Code uses the wording “the person may be released.”
Article 76.2 “A person who has committed a crime of minor or medium gravity for the first time may be released by the court from criminal liability with the imposition of a court fine...”
Here we see the legislator's favorite word CAN. It may or may not be released. At the discretion of the court. If the phrase is constructed in this way, then it means the right of the court, not the obligation.
In another mechanism for release (according to the statute of limitations, Article 78 of the Criminal Code), the legislator uses the same wording as in our case under consideration: “A person is released from criminal liability if the following terms have expired from the date of commission of the crime...”.
There is no word MAY, which means it is the duty of the court. The court is obliged to release if all the above conditions for the application of Article 80.1 of the Criminal Code are met.
But it’s too early to rejoice; the devil is in the details.
And the details are that there are no exact criteria for such a change in the situation that eliminates the public danger. All the above examples are just special cases and do not bind the court to anything. If in the example with the statute of limitations everything is clear (the deadline is an objective circumstance), then in this case the court, at its own discretion, decides whether to consider the circumstances as such that the public danger has disappeared, or not to consider it. This is His Majesty’s “internal conviction of the court,” a subjective circumstance.
Thus, formally it is the duty of the court to release. But in fact, this is a non-binding “obligation” - I don’t want and won’t consider the circumstances to fall under Art. 80.1 CC.
How to use
From a procedural point of view, this release mechanism is the same as other mechanisms for release from punishment: the petition is submitted either to the investigator or directly to the court if the case has reached the court.
Formally, the investigator can close the case on this basis, but it is unlikely that he will do so. Why give grounds for suspicion - suddenly the investigator did not just think that the public danger had disappeared, but for a “small share”.
In any case, it is worth filing a petition - it will not interfere with filing the same petition again directly to the court.
You can look at all other mechanisms for release, mitigation of sentences, as well as all overt and hidden mechanisms of a criminal case, including specific defense techniques, on the website All about criminal cases of the Moscow Bureau. Russian Federation (or just type in Moscow Bureau. Russian Federation in Yandex all about criminal cases)
Application of Art. 80.1 of the Criminal Code of the Russian Federation and consequences
Release from punishment, in contrast to the termination of criminal prosecution, means the pronouncement of a guilty verdict and the conviction of the guilty person. Only in this case he will not serve the assigned sentence, but will be completely released from it.
By procedure:
- The court almost never takes the initiative in releasing people from punishment. It's not worth the wait. The accused, at the stage of familiarization with the case materials, at the preliminary hearing or already in the main trial, must file a corresponding petition.
- The application must be accompanied by materials that confirm the existence of grounds for exemption from punishment. The emphasis is on changing the situation and the loss of public danger.
- The petition is considered by the court at the sentencing stage, and the decision is included in its text.
- If the court refuses to satisfy the petition, you can appeal the decision as part of an appeal against the verdict.
The consequences of release from punishment are practically the same as in the case of termination of the case by the court on non-rehabilitative grounds. There will be no criminal record, but the data will be included in the State Information Center of the Ministry of Internal Affairs.
