Collage: Legal.Report The Plenum of the Supreme Court of the Russian Federation updated three resolutions that relate to the issues of granting parole, criminal liability of minors and extremist crimes. These documents were adopted in 2009–2011. The new clarifications take into account numerous changes in legislation and are intended to establish uniform judicial practice. Among other things, the resolution on extremism is supplemented with provisions that have a “expressed human rights nature.”
parole
The speaker, Judge Elena Peisikova of the Supreme Court of the Russian Federation, noted that the courts are in great demand for clarification on the application of the provisions of Art. 79–82 of the Criminal Code of the Russian Federation (Chapter 12 - exemption from punishment). According to statistics, last year more than 80 thousand applications for parole were considered. Of these, 47% are satisfied. Comparable indicators are for petitions to replace the remaining part of the term of imprisonment with a more lenient punishment (out of almost 80 thousand, 35 thousand were satisfied). In addition, the courts considered more than 7 thousand petitions for release from punishment due to the illness of the convicted person, as well as about 900 petitions for granting a deferment to persons with children under 14 years of age and women with pregnancy.
The speaker said that one of the most important changes concerns Part 3 of Art. 80 of the Criminal Code of the Russian Federation [1] due to the lack of uniform judicial practice. For example, the courts have problems related to the procedure for determining the terms of punishment - that one day of imprisonment corresponds to three days of correctional labor. In this regard, the ratio of the terms of unserved imprisonment and the more lenient type of punishment to which it is replaced is clarified. For example, in the case of replacing imprisonment with correctional labor, when the unserved part of the sentence is 6 months, the term of correctional labor should not exceed 1.5 years. At the same time, an unserved sentence of more than 5 years can be replaced by forced labor for the same period, it follows from the new resolution of the plenum.
Important clarifications concern the application of the provisions of Art. 79 and 80 of the Criminal Code of the Russian Federation to those convicts for whom the previously unserved part of the sentence was replaced by a more lenient type of punishment. The new interpretation is based on the fact that, within the meaning of Art. 80 of the Criminal Code of the Russian Federation, from the moment the relevant court decision enters into legal force, the serving of the sentence imposed by the verdict ceases, and the type of punishment chosen by way of replacement is subject to execution. Taking this into account, if a convicted person’s imprisonment was replaced by forced labor, then in the future, if there are grounds, the unserved part of the work may be replaced by an even milder punishment.
The attention of the courts is also drawn to the fact that the criminal law does not contain a ban on parole from forced labor if it was chosen for the convicted person in accordance with Art. 80 of the Criminal Code of the Russian Federation. In this case, the terms for parole are calculated from the day appointed by the court verdict. Such clarifications were formulated taking into account the position of the Constitutional Court and are confirmed by the practice of the Judicial Collegium of the RF Armed Forces in criminal cases, the speaker emphasized.
Another important change concerns the issue of release from serving a sentence of a person who fell ill with a serious illness after committing a crime. The speaker noted that the criminal law does not link the solution to this issue with any conditions other than the presence of the disease itself. In this regard, it is clarified that the court, when considering a petition, cannot, as a basis for refusing to satisfy it, refer to the negative characteristics of a person, his lack of incentives, permanent place of residence and other similar circumstances. When preparing these clarifications, the appeals of the Commissioner for Human Rights in the Russian Federation were taken into account, Peysikova noted.
Parole and ZNBM statistics for 2021
According to the Supreme Court of the Russian Federation, in 2021 the courts considered more than eighty thousand applications for parole. 47% of requests were satisfied. The statistics on replacing the unserved part of a sentence with a more lenient form are also comparable (35,000 out of almost 80,000 requests were satisfied). Another 7,000 times the convicts asked to be released from punishment due to illness and approximately 900 times for a deferment from the execution of a criminal sentence, provided for the care of children under 14 years of age and in connection with pregnancy.
Teenagers
The speaker reported that the RF Armed Forces, together with the Commissioner for Children's Rights, in pursuance of the president's instructions, considered the issue of establishing the specifics of releasing minors from criminal liability in connection with reconciliation with the victim. In order to increase the effectiveness of this institution, the attention of the courts is drawn to the need, in each case of a crime of minor or moderate gravity committed by a teenager for the first time, to find out from the victim whether the harm caused to him has been made up for and whether he wants to reconcile with the defendant, and also to explain to the parties the legal procedure for termination criminal case in connection with the reconciliation of the parties.
The issue of releasing minors from criminal liability with the imposition of a court fine is also clarified. It is stated that in such cases the judge must make sure that the suspicions or accusations are justified and supported by evidence, and that the materials contain sufficient information to make a final decision in accordance with the law.
Peysikova said that the courts have certain difficulties related to resolving the issue of the right of legal representatives to pay a court fine imposed on a minor. In this regard, the question is clarified about the absence of obstacles to the payment of a fine by parents, guardians or other legal representatives of minors if they consent.
In addition, courts are asked to more clearly define the priorities for choosing grounds for terminating criminal cases against minors. For this purpose, the RF Armed Forces recommend considering the possibility of exemption from criminal liability in connection with reconciliation, as well as the use of compulsory educational measures only in the absence of other grounds for exemption provided for by law.
It is additionally clarified that a decision on exemption from criminal liability or the application of educational measures, as well as a decision on exemption from criminal liability on general grounds, can be made by the court not only based on the results of the trial, but also much earlier - based on the results of preliminary hearings. According to the speaker, this will allow for reasonable deadlines to be met and to reduce unjustified risks and costs for investigating the circumstances of the case, which are not disputed by the parties.
In addition, the resolution of the plenum eliminates the gap regarding the use of a preventive measure in the form of detention for a teenager who has reached the age of 16 and is suspected or accused of committing a crime of average gravity. An explanation is given that a strict preventive measure can be chosen only in exceptional cases, as the only possible one in specific conditions, taking into account the incriminated circumstances and personal data.
As Peisikova emphasized, over the past 5 years the number of convicted teenagers has decreased by more than one and a half times.
Recalculation of unserved time when assigning correctional labor
The greatest difficulties, according to Ms. Peisikova, were caused by changes to the third part of Article 80 of the Criminal Code of the Russian Federation for judges. No uniform practice has yet been established regarding these innovations. The courts encountered, for example, difficulties in determining the terms of punishment.
Not everyone was able to understand that for each unserved day of imprisonment, three days of correctional labor must be assigned. The Supreme Court of the Russian Federation decided to clarify the ratio of terms. Thus, when replacing imprisonment with correctional labor, instead of the remaining six months of service, no more than one and a half years of correctional labor can be assigned. In this case, the five remaining years of imprisonment can be replaced by forced labor for the same period.
Exemption from serving a sentence of a person who has fallen ill with a serious illness
An important comment also concerns the release from serving sentences of convicts who fell ill with serious illnesses after committing a crime. The Supreme Court confirmed the opinion of the majority of lawyers that the legislation does not connect the resolution of this issue with any circumstances other than the very presence of the convicted person’s disease.
The Supreme Court of the Russian Federation explained that when considering the relevant petition, the court cannot refuse on the grounds that the convicted person does not have incentives, is not characterized positively, does not have a permanent place of residence, and so on.
Don't wake the beast
In fact, many victims can be understood. Reminders of events that have already begun to be forgotten, sometimes tragic, can bring not only unpleasant memories, but also real problems.
As an example, we can cite the case of a Novosibirsk pedophile pornographer, in which more than two hundred of his victims, who had matured by that time, received notices of the upcoming court hearing. Many girls made a lot of efforts to forget what happened, find their place in society again, make friends and start a family. The husbands of many of them knew nothing about the past of the “Siberian mice.” After court summonses and letters of apology from the convict, some families broke up; husbands could not accept the girls’ terrible past.
What kind of reaction can you expect from them at trial? Are they ready to forgive a person who continues to affect their lives even a decade after the crime? In this situation, the victims’ opinion about parole and the NBM may turn out to be fatal. Moreover, many crime victims consciously make efforts to ensure that the convicted person stays in prison and suffers more.
Victims' opinions about parole influence the court's decision
Kristina Sendulyak from the Department of Criminal Procedure and Criminology of the Samara Law Institute of the Federal Penitentiary Service of Russia believes that the introduction of norms into the criminal procedural law allowing victims to participate in parole proceedings can violate the rights of the prisoner, significantly increase the time for consideration of applications and even lead to the development of corruption in this area .
In fact, victims were given the opportunity to exert significant (even decisive) influence on the conclusions and decisions of the court. “The victim does not and cannot have sufficient data to judge the readiness of the convict to reform when he is free,” says Mikhail Vinogradov, one of the founders of the “Petitions.ru” service. Meanwhile, the Criminal Code considers the ability of a person to reform without supervision to be the main prerequisite for mitigating the remaining punishment.
From the point of view of justice, all the rights and legitimate interests of the victim are respected at the stage of sentencing, to which the person is given the punishment itself. And his rights to parole and commutation of punishment concern the legitimate interests of the convicted person himself. The possibilities provided for in Articles 79, 80 and 93 of the Criminal Code of the Russian Federation to reduce the sentence or soften the conditions of serving are related exclusively to the effectiveness of correction. In other words, at the stage of execution of the sentence, the interests of the convicted person should be a priority.
The law and common sense provide for only a limited number of cases where there is an objective need to ascertain the victim’s opinion about the possibility of parole or the NBM. These are cases when the convicted person, once released, may pose a danger to the victims themselves or their relatives (for example, if he threatened them). Of course, it is worth taking into account the opinions of those victims whose claims the convicted person did not try to fulfill, although he had objective opportunities to do so.
In the current version of the law, the convicted person is obliged to compensate for the damage caused by the crime in whole or in part. In other words, the letter of the law does not provide for the possibility of mitigating punishment for persons who did not compensate for the harm at all. The legislator and the Supreme Court should certainly pay attention to this by properly protecting the rights of those who were unable to make payments through no fault of their own. In particular, this applies to those who could not be employed in a colony due to the citizenship of another country, worked without pay, or, for example, spent the entire period of imprisonment in a pre-trial detention center. Of course, those who attempted to compensate for the harm, but were unable to do so due to the actions of the victims themselves, the inaction of the bailiffs, or the mistakes of the administration of the FSIN institutions should not be deprived of the right to a mitigation of punishment.
The right to ask for a pardon or the replacement of a punishment with a milder form, we recall, is enshrined in the Constitution of the Russian Federation (Article 50), and a situation in which a request may not be granted for reasons beyond the control of the applicant cannot be considered fair.
