General principles of sentencing
The general principles of sentencing are the fundamental rules (requirements, criteria) established by criminal law that the court must follow when imposing punishment.
In accordance with the general principles of sentencing (Part 1 of Article 60 of the Criminal Code of the Russian Federation), a more severe type of punishment from among those provided for the crime committed is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment.
In the event that a convicted person, by virtue of the provisions established by law, cannot be assigned any of the types of punishment provided for in the relevant article of the Special Part of the Criminal Code of the Russian Federation (for example, compulsory labor - by virtue of Part 4 of Article 49 of the Criminal Code of the Russian Federation, corrective labor - in by virtue of Part 5 of Article 50 of the Criminal Code of the Russian Federation, forced labor and arrest - due to their non-application at present, imprisonment - by virtue of Part 1 of Article 56 of the Criminal Code of the Russian Federation), he is given a more lenient punishment than provided for by the sanction of the corresponding article .
By virtue of Part 3 of Art. 60 of the Criminal Code of the Russian Federation, when assigning punishment, the courts, along with the nature and degree of public danger of the crime, data on the identity of the perpetrator, mitigating and aggravating circumstances, also take into account the impact of the imposed punishment on the correction of the convicted person and the living conditions of his family (for example, the possible loss of funds by family members of the convicted person existence due to age, health status), and actual family relationships can also be taken into account.
Regulations on criminal and correctional punishments
After the publication of the Code of Laws of the Russian Empire, M.M. Speransky intended to begin creating the Code, which was supposed to not only contain the old norms, but also develop the law. The development of the “Code on Criminal and Correctional Punishments” was carried out initially in the Ministry of Justice, and then in the II Department of the Imperial Chancellery. The authors of the Code did not limit themselves to Russian experience; they studied numerous Western European criminal codes.
The draft “Code of Criminal and Correctional Punishments” and the explanatory note for it were ready by 1844. After consideration of the draft in the State Council, it was approved by Emperor Nicholas I on August 15, 1845 and put into effect on May 1, 1846.
Essentially, this was the first criminal code of Russia, since previous legislative sources, as a rule, combined the norms of many branches of law. Its main feature in comparison with earlier normative acts was the identification of the general part as an element of the structure of the codified act.
The special part of the Code consisted of 12 sections, including 2224 articles. This extensive code took into account and classified the following categories of crimes and offenses: religious, state, against the order of government, state and public service, regulations on duties, against the income and property of the treasury, public improvement and decency, class organization of society, life, health, freedom and personal honor, against family and property.
In the system of crimes according to the Code, crimes against faith have traditionally been in first place. The second group consisted of state crimes. In addition to rebellion, conspiracies, insulting the emperor and his family, new crimes appeared - the compilation and distribution of anti-state writings, the creation of secret societies. Special sections were devoted to various categories of crimes and offenses against the order of government and official offenses. Insults against officials during execution, failure to comply with orders, disruption of announcements, falsification of government decrees, prison escapes, etc. were persecuted. New articles and even a special section “On disobedience of factory and factory people” appeared in the Code. Organized protests by workers were especially severely punished. Obvious disobedience of factory people to the owner or manager was punishable as a rebellion against the authorities, i.e. death penalty. Punishments were also provided against participants in strikes. The perpetrators were arrested.
The system of punishments under the “Code on Criminal and Correctional Punishments” of 1845 was extremely complex and cumbersome - 12 types of punishment were established, divided into 38 degrees, ranging from the death penalty to indoctrination.
The most severe punishments were “criminal”: death penalty, exile to settlement in Siberia or Transcaucasia, indefinite or fixed-term (from 4 to 12 years) hard labor. Other types of punishments were also used - “correctional”, which provided for mild measures for that time: deprivation of all special rights and advantages and exile to Siberia, transfer to correctional prison departments, exile to other provinces, imprisonment in a prison, in a fortress, arrest, reprimand in presence of the court, comments and suggestions made by the court or an official, monetary penalties. Deprivation of all special rights and advantages consisted of deprivation of honorary titles, nobility, ranks, insignia, the right to enter the service, enroll in the guild, be a witness and guardian.
Researchers of that time noted the intricacy of a special part of the Code of 1845. Suffice it to say that it contained, for example, 24 articles providing for punishment for murder. The lack of certainty of sanctions and the presence in many articles of a special part of references to other articles to determine the punishment were also noted. But, despite all this, the main institutions of the general part of the Code of 1845 were developed legally very competently.
The “Code on Criminal and Correctional Punishments” with subsequent editions and individual laws supplementing it, for the most part, was in force until 1917, and was a big step forward in the development of criminal legislation of the Russian Empire and a masterpiece of Russian legal thought.
Shelf code: 34(09) Author's mark: U491 Complete bibliography: Code of Criminal and Correctional Punishments. - SPb.: type. Second Branch of His Imperial Majesty's Own Chancellery, 1845. - 173x261. - In the book. See also: Appendix.
Circumstances mitigating and aggravating punishment
The following are recognized as mitigating circumstances:
a) committing a crime of minor or medium gravity for the first time due to a random combination of circumstances;
b) the minority of the perpetrator;
c) pregnancy;
d) the presence of young children with the perpetrator;
e) committing a crime due to a combination of difficult life circumstances or out of compassion;
f) committing a crime as a result of physical or mental coercion or due to financial, official or other dependence;
g) commission of a crime in violation of the conditions of legality of necessary defense, detention of the person who committed the crime, extreme necessity, justified risk, execution of an order or instruction;
h) illegality or immorality of the behavior of the victim, which was the reason for the crime;
i) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime;
j) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused to the victim.
The list of mitigating circumstances is not exhaustive, and when imposing a punishment, other circumstances not specified in Part 1 of Art. 61 CC.
When assigning a punishment, circumstances not provided for in the first part of this article may be taken into account as mitigating factors.
The following are considered aggravating circumstances:
a) relapse of crimes;
b) the onset of grave consequences as a result of the commission of a crime;
c) committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization);
d) a particularly active role in the commission of a crime;
e) involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins;
f) committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group;
f.1) committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission;
g) commission of a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty;
h) committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person or a person dependent on the perpetrator;
i) committing a crime with particular cruelty, sadism, mockery, and torture for the victim;
j) committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, narcotic drugs, psychotropic, potent, poisonous and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion;
k) committing a crime during a state of emergency, natural or other public disaster, as well as during mass riots, in conditions of armed conflict or military action;
l) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;
m) committing a crime using the uniform or documents of a government representative;
o) commission of a deliberate crime by an employee of an internal affairs body;
o) commission of a crime against a minor (minor) by a parent or other person who is charged by law with the responsibility for raising the minor (minor), as well as by a teacher or other employee of an educational organization, medical organization, organization providing social services, or other organization, obligated to supervise the minor (minor);
p) committing a crime for the purpose of promoting, justifying and supporting terrorism.
Mandatory mitigation of punishment (Articles 62, 64-66 of the Criminal Code)
Mandatory mitigation of punishment is allowed in the following cases provided for in criminal law.
In the presence of mitigating circumstances (Article 62 of the Criminal Code), covering various options for positive post-criminal behavior (active repentance) and provided for in paragraphs “i” and “k” of Part 1 of Art. 61 of the Criminal Code, and also in the absence of aggravating circumstances, the term or amount of punishment cannot exceed three quarters of the maximum term or amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Criminal Code. The above paragraphs provide a list of several circumstances, however, to apply the rules of Art. 62 of the Criminal Code, it is enough to establish the presence of at least one of them.
It should be noted that the rule on the mandatory reduction of the term or amount applies only to the most severe type of punishment from among those provided for by the sanction. Increasingly milder types of punishment may be imposed within the limits established by law for the crime committed.
The presence of exceptional mitigating circumstances justifying the imposition of a more lenient punishment than provided for this crime (Article 64 of the Criminal Code). This type of mitigation of punishment may be due to the presence of one of three types of exceptional ones, i.e. atypical, rather rare mitigating circumstances:
a) circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, which convincingly indicate the need to reduce in this case the standard punishment provided for in the sanction of the article of the Special Part of the Criminal Code;
b) other circumstances that significantly reduce the degree of public danger of the crime, for example, the circumstances provided for in paragraphs “f”, “h”, “i”, “k” of Part 1 of Art. 61 of the Criminal Code, or mitigating circumstances not specified in the law, if the court recognizes them as exceptional;
c) active assistance of a participant in a group crime in solving this crime, which consists of proactively or at the request of law enforcement agencies assisting a person in solving a crime, exposing other accomplices in a crime, searching for property obtained as a result of a crime, tools and means of committing a crime, etc. (clause “ and" Part 1 of Article 61 of the Criminal Code).
The law provides for three forms of emergency mitigation of appointment in the presence of exceptional mitigating circumstances (Article 64 of the Criminal Code):
1) imposing a punishment below the lower limit provided for in the relevant article of the Special Part of the Criminal Code.
Going beyond the lower limits provided for in the sanction, the court does not have the right to impose a punishment below the minimum limit established in the General Part of the Criminal Code for this type of punishment. According to the meaning of the law, the court can go beyond the lower limits of not only the most severe, but also any other punishment provided for in the alternative sanction;
2) imposition of a more lenient type of punishment than provided for by the sanction of the article of the Special Part of the Criminal Code.
Taking into account the rules contained in Art. 64 of the Criminal Code of the Russian Federation, any milder type of basic punishment may be imposed, not specified in the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation, including a fine, deprivation of the right to hold certain positions or engage in certain activities, correctional labor, in compliance with the provisions of Art. 44 and parts 1 and 2 art. 45 of the Criminal Code of the Russian Federation not lower than the amounts or terms specified in the relevant articles of the General Part of the Criminal Code of the Russian Federation in relation to each type of punishment;
3) non-application of an additional type of punishment provided for as mandatory. Thus, if there are grounds for an extreme mitigation of the sentence, the court has the right to refuse to assign a person under Part 3 of Art. 285 of the Criminal Code of the Russian Federation deprivation of the right to hold certain positions or engage in certain activities.
The jury's verdict of leniency (Article 65 of the Criminal Code).
In case of a verdict of leniency, the punishment is assigned according to the following rules:
1) the term or amount of punishment for a person found guilty of committing a crime by a jury, but deserving leniency, cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed.
If certain types of punishments can be imposed as additional ones, indicating the term or amount (for example, a fine, deprivation of the right to hold certain positions or engage in certain activities), then if the jury verdicts on leniency, an additional punishment is imposed within the limits specified in the sanction of the article of the Special Part of the Criminal Code RF;
2) if the relevant article of the Special Part of the Criminal Code provides for the death penalty or life imprisonment, these types of punishments are not applied, and the punishment is imposed within the limits of the sanction provided for by the relevant article of the Special Part of the Criminal Code;
3) when imposing punishment for a set of crimes or a set of sentences, the type, term or amount of punishment is assigned according to the rules provided for in Art. Art. 69 and 70 of the Criminal Code. At the same time, jurors have the right to recognize that a person guilty of committing several crimes deserves leniency both for each of the crimes and for one of them;
4) when assigning a punishment to a person found guilty of committing a crime by a jury verdict, but deserving leniency, aggravating circumstances are not taken into account.
The presence of a verdict of leniency does not prevent, if there are grounds, the application of Art. 64 of the Criminal Code and the imposition of a more lenient punishment than provided for this crime.
Committing an unfinished crime (Article 66 of the Criminal Code).
The term or amount of punishment for preparation for a crime cannot exceed half (Part 2 of Article 66 of the Criminal Code), and for attempted crime - three quarters (Part 3 of Article 66 of the Criminal Code) of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code for a completed crime.
When assigning punishment for preparation for a crime or for an attempted crime, the court must be guided by the rules of Parts 2 and 3 of Art. 66 of the Criminal Code of the Russian Federation, bearing in mind that they apply also in the case when the calculated period is below the lower limit of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation. It is not required that there be grounds for imposing a more lenient punishment than provided for the crime.
The death penalty and life imprisonment for preparation for a crime and attempted crime are not imposed (Part 4 of Article 66 of the Criminal Code of the Russian Federation).
Imposing a more lenient punishment than provided for this crime (Article 64 of the Criminal Code of the Russian Federation)
Mandatory mitigation and strengthening of the imposed punishment
Mandatory mitigation of sentence:
Imposing a more lenient punishment than provided for this crime (Article 64 of the Criminal Code of the Russian Federation)
The basis for application is the presence of “exceptional mitigating circumstances” or the active assistance of a participant in a group crime in solving this crime.
An approximate list of exceptional mitigating circumstances is given directly in Art. 64 of the Criminal Code of the Russian Federation, but it is not exhaustive. At the same time, either one or several circumstances can be recognized as exceptional (Part 2 of Article 64 of the Criminal Code of the Russian Federation).
It is within the exclusive competence of the court to recognize a circumstance as exceptional and assistance as active, but if the court has recognized the circumstance as exceptional and assistance as active, it is already obliged to mitigate the punishment by applying one of the following three options:
a) The court may impose a punishment below the lower limit provided for in the article of the Special Part of the Criminal Code of the Russian Federation
This mitigation option is applicable only to the main type of punishment and allows, if there is a sanction regarding a certain main type of punishment with minimum and maximum limits specified directly in the sanction, to impose a punishment below the provided minimum limit. In this case, the lower limit that the court can assign will be equal to the lower limit that is established for this type of punishment in the General Part of the Criminal Code of the Russian Federation.
Does not apply to life imprisonment and the death penalty.
b) The court may impose a more lenient punishment than provided for in the article of the Special Part of the Criminal Code of the Russian Federation
This mitigation option allows the court to assign a different, milder main type of punishment instead of the main type of punishment contained in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation. When assigning a more lenient type of punishment, its size is determined by the court based on the limits specified in the General Part of the Criminal Code of the Russian Federation for this type of punishment.
c) The court has the right not to apply an additional type of punishment provided for as mandatory
This mitigation option allows the court not to apply a fine or deprivation of the right to hold certain positions or engage in certain activities if their application as additional types of punishment is provided for in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation as an obligation of the court.
It must be taken into account that when convicting a person for a set of crimes, depending on the circumstances of the case, Art. 64 of the Criminal Code can be applied either to each of the crimes included in the totality, or to several, or to one.
2. The duty of the court to mitigate the punishment, but within the framework provided for in the sanctions for the crime
a) Art. 62 of the Criminal Code of the Russian Federation
Applies subject to three conditions:
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the presence of at least one of the mitigating circumstances provided for in paragraphs. “i”, “k” part 1 art. 61 of the Criminal Code of the Russian Federation
- absence of aggravating circumstances
—
for the crime committed there is no punishment in the form of life imprisonment or the death penalty
Having established that these conditions are met, the court is obliged to mitigate the punishment according to the rules of Art. 62 of the Criminal Code of the Russian Federation.
b) art. 65 of the Criminal Code of the Russian Federation
A “jury verdict of leniency” is a positive answer from a jury on a question paper to the question of whether the defendant deserves leniency if found guilty.
In this case, the presiding judge is obliged, having qualified the crime on the basis of the verdict, to mitigate the punishment according to the rules of Art. 65 of the Criminal Code of the Russian Federation.
c) art. 66 of the Criminal Code of the Russian Federation
Qualification of a person’s actions as preparation for a crime or attempted crime
With such qualifications, the judge is obliged to mitigate the punishment according to the rules of Art. 66 of the Criminal Code of the Russian Federation. At the same time, as stated in the law, the circumstances due to which the crime was not completed (Part 1 of Article 66 of the Criminal Code of the Russian Federation) must be taken into account.
d) part 7 art. 316 Code of Criminal Procedure of the Russian Federation
This rule on mandatory mitigation of the imposed punishment is contained not in the criminal law, but in the criminal procedural law, although it is essentially a norm of substantive law.
Applies if the process took place without a trial due to the defendant’s consent to the charges.
Mitigation of punishment using the rules provided for in Art. 62, 65-66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 of the Code of Criminal Procedure is generally uniform - the court is obliged to reduce the maximum limit of a certain type of punishment specified in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation by 1/4 when applying Art. 62 of the Criminal Code of the Russian Federation, by 1/3 when applying Art. 65 of the Criminal Code of the Russian Federation, by 1/2 during preparation (Part 2 of Article 66 of the Criminal Code of the Russian Federation), by 1/4 during an attempt (Part 3 of Article 66 of the Criminal Code of the Russian Federation) and by 1/3 when applying Part 7 of Art. 316 Code of Criminal Procedure.
When applying the rules of mitigation of punishment provided for in Art. 62, 66 of the Criminal Code of the Russian Federation to the sanctions of articles of the Special Part of the Criminal Code of the Russian Federation, which provide for the death penalty or life imprisonment as types of punishment, these types of punishment cannot be imposed, and the possible term of punishment in the form of imprisonment is mitigated in accordance with these rules. If the jury makes a leniency verdict (Article 65 of the Criminal Code of the Russian Federation), the death penalty or life imprisonment cannot be imposed, however, imprisonment can be imposed within the limits provided for by the sanction of the article, i.e. without reducing by 1/3 the upper limit of the term of this type of punishment (Part 4 of Article 65 of the Criminal Code of the Russian Federation).
To conclude the presentation of the rules for mandatory mitigation of the imposed punishment, it is necessary to consider the issue of combining several different grounds for mitigation.
If only the grounds for mitigation of punishment are combined with the application of the rules provided for in Art. 62, 65-66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 of the Code of Criminal Procedure (without grounds for applying Article 64 of the Criminal Code of the Russian Federation), then the punishment is mitigated with the consistent application of all existing rules, i.e. the upper limit of punishment specified in the sanction is reduced successively. In the case of a combination of grounds for mitigation of punishment with the application of the rules provided for in Art. 64 of the Criminal Code of the Russian Federation, on the one hand, and Art. 62, 65-66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 of the Code of Criminal Procedure, on the other hand, mitigation of punishment will depend on the mitigation option chosen by the court from the specified Art. 64 of the Criminal Code of the Russian Federation. If the court chooses to impose a punishment below the lower limit provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation, or to assign a more lenient type of punishment than provided for in the article, then the rules for mitigating the punishment provided for in Art. 62, 65-66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 of the Code of Criminal Procedure are not applied due to the impossibility of their application. If the court chooses not to apply an additional type of punishment provided for as mandatory, then the rules for mitigating the punishment provided for in Art. 62, 65-66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 Code of Criminal Procedure.
Mandatory enhancement of the imposed punishment - Art. 68 of the Criminal Code of the Russian Federation
The basis for its use is the determination by the court of recidivism of crimes (simple, dangerous and especially dangerous)
. Determination of relapse falls within the exclusive competence of the court and is its responsibility.
In case of any type of recidivism, the court does not have the right to assign a person a sentence less than 1/3 of the maximum term of the most severe type of punishment provided for the crime committed. In other words, the court is obliged to increase the lower limit of the main type of punishment provided for in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation to 1/3 of its upper limit and be guided by the resulting limits, and not those specified in the sanction.
In Part 2 of Art. 68 of the Criminal Code of the Russian Federation, the above rule is limited by the clause “but within the sanction of the article of the Special Part.”
In the alternative sanctions of the articles of the Special Part of the Criminal Code of the Russian Federation, the rule on imposing punishment for recidivism of crimes requires the court to unconditionally choose the most severe of the provided types of punishment.
In certain cases, the court has the right to deviate from the rule of Part 2 of Art. 68 of the Criminal Code of the Russian Federation (Part 3 of this article):
—
if mitigating circumstances are established, the court may not apply the rule of Part 2 of Art. 68 of the Criminal Code of the Russian Federation and impose punishment within the limits established by the sanction of the article
- if exceptional circumstances are established, the court is obliged not to apply the rule of Part 2 of Art. 68 of the Criminal Code of the Russian Federation and mitigate the punishment according to the rules of Art. 64 of the Criminal Code of the Russian Federation.
It should also be noted that cases of a combination of rules on mandatory mitigation of the imposed punishment (Articles 62, 65, 66 of the Criminal Code of the Russian Federation and Part 7 of Article 316 of the Criminal Procedure Code) and rules on its mandatory strengthening (Article 68 of the Criminal Code of the Russian Federation) are resolved. In this case, the court is first obliged to mitigate the imposed punishment according to the rules of Art. 62, 65, 66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 of the Code of Criminal Procedure, and then tighten it according to the rule of Part 2 of Art. 68 Criminal Code of the Russian Federation. That is, 1/3 according to the rule of Part 2 of Art. 68 of the Criminal Code of the Russian Federation will be counted not from the upper limit of punishment that was initially specified in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, but from the upper limit of punishment that will be received after applying Art. 62, 65, 66 of the Criminal Code of the Russian Federation and Part 7 of Art. 316 Code of Criminal Procedure.
