I recently read that almost half of the convicted do not use their right to ask the court for parole. I haven’t checked this figure, but I’m ready to take it on faith – almost every day I see evidence of its adequacy. There are two main reasons - one (related to the laziness of the FSIN employees) we will not touch now. But let's focus on the second one. The fact is that there are some serious and persistent misconceptions about parole. In this article I will try to destroy them.
Not all convicts are entitled to parole
Misconception:
Yes indeed. Many convicts believe that their article does not qualify for parole. The query “for which articles parole is not granted” is one of the popular ones. As a rule, those who are imprisoned for violent crimes (rapists, murderers, etc.) and sentenced to life do not consider themselves worthy of parole. And, of course, many believe that parole under 228 is not allowed for crimes related to drug trafficking.
In fact:
The right to apply to the court for parole does not stem from the crime, but from how the convicted person is reformed. In order to be released on parole, the judge must come to the conclusion that further correction of the person is possible without imprisonment. All persons serving imprisonment, without exception, have the right to request parole.
There has not yet been a single case where someone has not asked about those sentenced to life - can they really be released early? Yes they can. To do this, you need to serve 25 years behind bars. So far I have seen only one case of such a request being granted. And he's quite strange.
Those convicted of crimes against the sexual integrity of minors (in other words, pedophiles) can apply for parole after serving 4/5 of their sentence. In essence, these deadlines are protective. But formally, criminals of this category are not deprived of the right to be released on parole.
It is also worth noting that a number of Duma deputies regularly introduce bills that would ban parole for certain categories of convicts. All these attempts are reliably suppressed by the Constitutional Court, each time consistently explaining that the right to apply for parole is constitutional and applies to everyone.
Who really isn't eligible for parole?
The only category of convicts who are deprived of the right to ask for parole are those who, while serving a life imprisonment, managed to commit a new serious or especially serious crime.
To apply for parole, you need to actually serve at least six months behind bars; about two more will be spent on the application being considered in court. Thus, in practice, those whose sentence is less than 8 months cannot be released on parole.
The deadline for filing an application for parole depends on the mode of serving the sentence
Misconception:
The second common misconception is that the period after which you can apply for parole depends on the regime in which the convicted person is serving his sentence. Well, that is, “settlement” ones are applied after a third of the term, the general regime - after half, the strict regime - after 2/3, and so on.
In fact:
The filing deadline is determined by Article 79 of the Criminal Code of the Russian Federation and is tied to the severity of the crime committed. If a person convicted under Article 228 of the Criminal Code of the Russian Federation is serving a sentence in a penal colony, he will still be able to file a petition only after serving 3/4 of the term assigned by the court.
And vice versa - if a citizen convicted of a fatal accident is transferred from a penal colony to a general regime for bad behavior, he will retain the right to apply for parole after a third of his term of imprisonment. True, it is unlikely that his request will be granted.
Release on parole in 2021
When applying for parole for teenagers (under the age of majority), the conditions apply in a similar way, but the remaining terms are halved.
All terms depend on the severity of the crime committed and are prescribed in Article 79 of the Criminal Code of the Russian Federation, namely, the following period is required in places of correctional institutions:
Release on parole in 2021 implies that the prisoner may be released before the end of his sentence due to certain grounds. However, he will have to be under the supervision of a police officer.
Only after this period can it be considered that the criminal record has been expunged.
- Complete. How long does it take to file a petition to expunge a criminal record? If a prisoner has to serve only the main sentence, he may be released.
- Incomplete. If there is a term for two or more cases, parole is applied to the main one, but not to the secondary one.
Parole is applicable in cases where the court term for the sentence has not yet expired, but the convicted person by his behavior shows that the measure of restraint can be changed.
You need to spend six months in prison
Misconception:
In order to go to court on the issue of parole, you must spend at least six months in a particular colony.
In fact:
According to paragraph 4 of Article 79 of the Criminal Code of the Russian Federation, “the term of imprisonment actually served by the convicted person” cannot be less than six months. Thus, six months must be counted from the date indicated in the sentence as the start date of the term - usually the calculation begins from the moment of detention.
The version that you need to spend six months in a colony is usually spread by the commanders of the detachments. Allegedly, before the expiration of this period, they cannot form an opinion on how effectively the convicted person is being reformed. They may not be able to draw up a character reference, but this does not take away the right to file a petition from the convicted person.
How to apply for parole without a lawyer?
Author of the question: Prokhorov L. Created: 12/14/21
The procedure and grounds for parole are regulated by the provisions of Article 79 of the Criminal Code of the Russian Federation, which describes the actions of correctional institution employees if it is necessary to submit an application. As already written above, in order to be granted parole, the convicted person must contact the administration of the correctional institution; the petition can be submitted directly to the court at the location of the convicted person through a lawyer or through the administration of the correctional institution.
Answered by: Smirnova I. 12/16/21
To apply for parole you need to wait for graduation
Misconception:
You cannot apply for parole from a pre-trial detention center - you must wait until the end and go to the zone.
In fact:
According to the law, if the verdict is not appealed by the parties, it enters into legal force 10 days after its announcement, and for those deprived of liberty - after they become familiar with it. What is legal? A law is a notice of the entry into force of a sentence. With this piece of paper, the court informs the administration of the detention center that the convicted person can be sent to the place of serving his sentence.
There are often cases when convicts wait for several months (sometimes longer). At the same time, the law does not require the law to come to the pre-trial detention center and does not prohibit filing a petition from the detention center. If a person has filed a petition. And he, for example, was taken to the stage - the court itself will send documents according to jurisdiction.
To be honest, the courts usually consider petitions filed from pre-trial detention centers to be somewhat premature - the percentage of refusals is off the charts. But it’s worth a try - especially if you are confident in your correction. Often, refusals on such grounds can be easily challenged in the appellate court as illegal and unfair.
If the colony administration does not provide documents, there will be no parole
Misconception:
The representative of the institution promises that he will not send the documents to the court - supposedly this will make parole impossible. Many convicts do not apply for parole for fear of opposition from the colony.
In fact:
The court does not have the right to refuse parole because the colony has not provided any materials. Moreover, the convicted person may ask the court to assist him in obtaining the documents necessary for parole. In this case, the court will require paper from the colony and the institution will not be able to refuse.
No one is released on parole without “support from the colony”
Misconception:
Many convicts do not apply for parole because the colony refuses to support the application and a representative of the institution will oppose it in court.
In fact:
The opinion of the representative of the colony and the conclusion of the administrative commission on the advisability of releasing the convicted person on parole are important circumstances when the court makes a decision. But they are not the only ones - and the court has no right to refuse only on the grounds that there was no support for the colony. Such a refusal will be considered illegal and will be overturned in the appellate instance.
To be released on parole, a convicted person must prove to the court that he is undergoing stable correction and will be able to continue his correction outside the walls of a colony or prison. Since the administration of the institution is responsible for correction, it is quite logical to ask the opinion of a representative of the Federal Penitentiary Service. There really aren’t that many positive decisions in the absence of support for the colony, but they do exist – as much as 5% (in the practice of ZNBM.ru – almost 9%).
We advise you to apply for parole even in cases where the chances of success are low. On the one hand, these chances are always there anyway (especially if you prepare the application and documents correctly, which we are always happy to help with). On the other hand, it is quite obvious that judges are trying to maintain approximately even parole statistics - the numbers within the court are almost always approximately equal. That is, every refusal indirectly increases someone’s chances of being released.
Parole
Parole is the dream of many prisoners. Some of them, just after getting into a pre-trial detention center and being under investigation, are already starting to think about parole and calculating their chances of early release. There are legends about parole, prisoners pass on their modest knowledge to each other in oral stories about the conditions of parole in certain places of deprivation of liberty, about who succeeded and who did not, and why.
Having received a sentence and got into a camp, prisoners, as a rule, already have some amount of legal knowledge, having managed to superficially study the Criminal Code, Criminal Procedure Code and Penal Code of the Russian Federation, and often try to write themselves and others a petition for parole. However, even there, in the camp, few understand the issue of parole in detail.
We will tell you the most important things a prisoner should know about parole.
The grounds for parole are established by the Criminal Code of the Russian Federation. According to Art. 79 of the Criminal Code of the Russian Federation, in order to apply parole, a combination of two circumstances is necessary: the actual serving by the convicted person of the part of the sentence specified in the law (parts 1 - 5 of Article 79, Article 93 of the Criminal Code of the Russian Federation) and the recognition by the court of the convicted person as not requiring the full serving of the assigned sentence for his correction. Since January 10, 2014, in connection with the changes made to Part 1 of Article 79 of the Criminal Code of the Russian Federation, in order to have a positive resolution of the issue of parole, along with the specified circumstances, compensation for harm (in whole or in part) caused by the crime is required in the amount determined by the court decision.
The terms of punishment that must be served in order to resolve the issue of parole are provided for in parts 3-5 of Article 79 of the Criminal Code of the Russian Federation, LINK and for convicts who committed a crime as a minor - in Article 93 of the Criminal Code of the Russian Federation.
In this case, the term of imprisonment actually served by the convicted person in any case cannot be less than six months.
In cases where the sentence of a convicted person was commuted by an act of amnesty or an act of pardon or a ruling (resolution) of the court, the actually served sentence is calculated based on the term of punishment established by the act of amnesty or an act of pardon or the ruling (resolution) of the court (clause 2 Resolution of the Plenum Supreme Court of the Russian Federation dated April 21, 2009 No. 8 “On the judicial practice of parole from serving a sentence, replacing the unserved part of the sentence with a milder type of punishment”)
If a person is convicted of a combination of crimes of different categories of gravity or a set of sentences, then when deciding on parole from serving a sentence or replacing the unserved part of the sentence with a more lenient type, one must proceed from the final term of punishment assigned in the totality. When calculating from this period that part of it, after the actual serving of which it is possible to apply parole or replace the unserved part of the sentence with a more lenient punishment, the courts should apply the rules provided for in paragraphs “a”, “b”, “c” of part 3 of the article 79, paragraphs two, three, four of part 2 of article 80, article 93 of the Criminal Code of the Russian Federation for the most serious crime included in the totality.
If the convicted person has served the statutory part of the sentence, after which parole is possible, the court does not have the right to refuse the petition only on the grounds that the convicted person has served an insignificant part of the sentence. At the same time, the fact that the convicted person has actually served the part of the sentence provided for by law is not in itself a sufficient basis for making a decision on his conditional early release from serving a sentence (clause 2.5, clause 2.6 of the Review of Judicial Practice on Conditional Early Release from Serving a Sentence , approved by the Presidium of the Supreme Court of the Russian Federation on April 29, 2014).
When deciding on parole, courts take into account the behavior of the convicted person for the entire period of serving the sentence; attitude to work while serving a sentence; compensation for harm caused by the crime (in whole or in part; the attitude of the convicted person to the committed act, the conclusion of the administration of the correctional institution on the advisability of parole for the convicted person, the opinion of the representative of the correctional institution, the prosecutor and the victim on this issue, as well as other circumstances (for example, information about the possibility of employment and place residence of the convict after release). When resolving the issue of parole for a minor convict, the courts take into account his attitude to school, connections with relatives while serving his sentence. In relation to a convict suffering from a disorder of sexual preference (pedophilia), which does not preclude sanity, and who committed the crime at the age of over eighteen years, a crime against the sexual integrity of a minor under fourteen years of age, the courts also take into account the fact that compulsory medical measures were applied to the convicted person, his attitude towards treatment and the results of a forensic psychiatric examination.
This raises a number of questions related to the interpretation of the above conditions for parole. How to evaluate “the attitude of the convicted person to the committed act”; is it necessary for the convicted person to admit guilt in order to receive parole? How much should the damage caused by the crime be repaid? Is it possible to get parole without paying off the damage in full, and what can contribute to this? Are incentives an unconditional basis for parole, and penalties an unconditional basis for denial of parole?
Most of these questions are answered by the above-mentioned Review of judicial practice on parole from serving a sentence, approved by the Presidium of the Supreme Court of the Russian Federation dated April 29, 2014 (hereinafter referred to as the Review) and Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 21, 2009 No. 8 “On judicial practice of conditional early release from serving a sentence, replacing the unserved part of the sentence with a more lenient type of punishment” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court).
Thus, on the issue of admitting or not admitting guilt by a convicted person in order to receive parole, the Supreme Court speaks out exhaustively: “Courts do not have the right to refuse parole from serving a sentence or replacing the unserved part of a sentence with a more lenient type of punishment on grounds not specified in the law, such as such as the presence of a previous criminal record, the leniency of the imposed punishment, the convict’s non-admission of guilt, the short duration of his stay in one of the correctional institutions, etc. ”(clause 6 of the Resolution of the Plenum of the Supreme Court). A similar position is contained in clause 4.1. Review, which is strengthened by reference to the Determination of the Constitutional Court of the Russian Federation of March 1, 2012 No. 274-О-О, according to which the constitutional right of everyone not to testify against himself (Article 51 of the Constitution of the Russian Federation) must be ensured at any stage of criminal proceedings, including at the stage of execution of the sentence. Therefore, the fact that a person took advantage of this right when resolving the issue of parole cannot in itself serve as a basis for the occurrence of any adverse consequences for him.
On the issue of penalties, the Resolution of the Plenum of the Supreme Court clearly indicates that their presence on the part of a convicted person cannot in itself indicate that he needs to continue serving the sentence imposed by the court. When resolving this issue, one should take into account the specific circumstances, the severity and nature of each violation committed by the convicted person for the entire period of serving the sentence, and not just for the time immediately preceding the consideration of the petition or presentation, data on the removal or repayment of penalties, the time that has passed since the last penalty, subsequent behavior of the convicted person and other information characterizing him. This position is contained in the Review and is confirmed by judicial practice, from which it is clear that courts may not take into account whether a convicted person has penalties, taking into account other circumstances: the presence of incentives, attitude to work, attitude to the crime committed, etc. and so on. The nature of the specific violation is also taken into account, for example, if it is insignificant, in relation to the “general positive dynamics” of the correction of the convicted person.
To determine the nature of the violation, courts are guided by Art. 116 of the Penal Code of the Russian Federation, containing a list of malicious violations of the established procedure for serving a sentence by those sentenced to imprisonment. For example, when making a decision on April 1, 2013 to grant the request for parole of citizen P., the Okhansky District Court of the Perm Territory proceeded from the fact that the convicted person committed a violation while serving his sentence - he did not say hello to an employee of the administration of the correctional institution - taking into account his character (not malicious) and information about the identity of the convicted person (employed, conscientious about work, takes part in the social life of the detachment and its improvement) does not interfere with parole.
In general, penalties imposed on a convicted person for the entire period of serving his sentence, taking into account the nature of the violations committed, are subject to assessment by the court in conjunction with other data characterizing him; the presence or absence of a penalty against a convicted person cannot serve as either an obstacle or a basis for his parole.
The assessment of penalties imposed on a convicted person for the entire period of serving a sentence involves taking into account, among other things, lifted and extinguished penalties.
When deciding whether a person needs to further serve a sentence for his correction, the courts take into account the time of imposition of penalties, their number, frequency, removal and repayment, and the time elapsed since the last penalty. In the case where the penalty was imposed in the initial period of serving the sentence, after which the person was characterized positively, the courts mainly apply parole.
The predominance of rewards over penalties does not always lead to parole. Incentives are only one of the positive factors influencing parole.
As for compensation for damage caused by a crime, it must be compensated at least in some minimum amount. The person applying for parole must show that he has made efforts to compensate for the harm, even if he was not able to compensate for all the harm in full. The courts make a conclusion about compensation for harm on the basis of information provided by the correctional institution, the convicted person, and (or) the victims about the repayment of the civil claim. If the civil claim is partially extinguished, the courts take into account objective reasons: the disability of the convicted person or the presence of diseases that prevent employment, the impossibility of employment due to the limited number of jobs in the colony, etc., the court does not have the right to refuse conditional early release from serving punishments on this basis alone. At the same time, established facts of deliberate evasion of a convicted person from compensation for damage caused by a crime (by concealing property, income, evading work, etc.) prevent parole.
When considering applications for parole, the courts take into account the opinion of the representative of the correctional institution and the prosecutor on the presence or absence of grounds for recognizing the person as not in need of further serving the sentence, the conclusion of the administration of the correctional institution on the advisability of parole, as well as the opinion of the victim about the parole of the convicted person. In this case, the opinion of the victim is taken into account, but is not decisive for the court. The victim's reluctance alone is not enough to deny parole.
It is also important to note that factors such as attitude to “thieves’ traditions,” an active role in the commission of a crime, a significant unserved remainder of the sentence, the social danger of the crime and other circumstances not provided for by law cannot serve as grounds for denial of parole.
There is also no provision for denying parole to a convicted person solely on the grounds that he is a citizen of a foreign state.
In accordance with Part 3 of Article 396 of the Code of Criminal Procedure of the Russian Federation, issues of parole from serving a sentence are resolved by the district (city) court at the location of the institution executing the sentence in which the convicted person is serving his sentence in accordance with Article 81 of the Penal Code of the Russian Federation, as well as by the garrison military court regardless of the jurisdiction of the criminal case.
If, after the court receives an application for parole, the convicted person is transferred to another institution executing the sentence, the case is considered by the court at the location of this institution. In this case, the petition, as well as the presented materials, must be immediately sent by the court to which these documents were received to the court at the place where the convicted person is serving his sentence.
A petition for conditional early release from serving a sentence in relation to a convicted person temporarily transferred to a pre-trial detention center in the manner prescribed by Article 77.1 of the Penal Code of the Russian Federation, in connection with his involvement in investigative actions or judicial proceedings, is subject to referral to the court at the location of the institution, executing the punishment, from which the convict was transferred to a pre-trial detention center.
The trial on the issue of parole takes place in the manner established by Chapter 47 of the Code of Criminal Procedure of the Russian Federation - “Proceedings for the consideration and resolution of disputes related to the execution of the sentence.”
When considering the issue of parole of a convicted person from serving his sentence, the judge, at the request of the convicted person, is obliged to provide him with personal participation in the court hearing or through video conferencing to state his position and provide the necessary information in support of it (paragraph 3 of paragraph 18 of the Resolution of the Plenum of the Supreme Court ).
The court hearing to consider the petition of the convicted person, his lawyer and (or) legal representative for parole from serving the sentence begins, respectively, with an explanation from the applicant or a report from the representative of the institution or body that submitted the petition. Then the court examines the presented materials, listens to the explanations of the victim, civil plaintiff, their legal representatives and (or) representatives and other persons who appeared at the court session, the opinion of the prosecutor participating in the court session, after which the judge retires to the deliberation room to make a decision.
During the court hearing, circumstances relevant to resolving the issue of applying parole to the convicted person or replacing the unserved part of the sentence with a more lenient punishment are subject to investigation. In this case, the decision must be legal, justified and motivated, contain a detailed substantiation of the conclusions to which the court came as a result of considering a petition for conditional early release from serving a sentence or a petition or submission to replace the unserved part of the sentence with a more lenient type of punishment. In case of refusal to satisfy a petition or presentation, the court decision must indicate specific factual circumstances that exclude the possibility of parole or replacement of the unserved part of the sentence with a more lenient type of punishment. Conclusions about the existence of such circumstances cannot be based on information not verified at the court hearing.
If the court makes a decision on conditional early release from serving the sentence, the convicted person is subject to release in accordance with Part 5 of Article 173 of the Penal Code of the Russian Federation. A copy of the court decision is immediately sent to the institution or body executing the punishment, as well as to the court that passed the sentence.
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If there are penalties, there is nothing to apply for parole
Misconception:
This misconception, again, is being widely propagated by employees of the Federal Penitentiary Service. Like, he received a penalty - he put an end to parole. This myth is quite tenacious. In addition, we know that in a number of institutions penalties are imposed deliberately - in order to keep convenient convicts in the colony (usually this applies to those who work well or actively cooperate with the detective department).
In fact:
According to the law, when making a decision on parole (or denial thereof), the court must evaluate information about rewards and penalties. The presence of incentives is not a prerequisite for parole, and the presence of penalties is a mandatory reason for refusal.
In each specific case, the judge must examine for what and under what circumstances both rewards and penalties were received. According to observations, the connection between punishment and the crime for which the convicted person is serving a sentence plays an extremely significant role. So, if a person convicted under Art. 228 of the Criminal Code of the Russian Federation, being caught with drugs is one thing, but receiving a penalty for sleeping through morning exercises is completely different.
In our practice, there are quite a few cases where people were released on parole even with several penalties. Again, a lot depends on how the application is drawn up and what documents are submitted for parole. The basis for refusal of parole, for example, is often penalties imposed while in a pre-trial detention center. Such a refusal is quite easy to overcome on appeal.
How to obtain parole under Article 228 of the Criminal Code of the Russian Federation
Parole for possession and distribution of drugs is possible only if the convicted person correctly builds a model of his behavior. To get a chance to be released before the end of the sentence, you need to prove to the court that the offender has ceased to be socially dangerous.
To do this you need to meet the following requirements:
- Good behavior. The convicted person should not have any comments, should not be seen in violation of order, etc. At the same time, the Supreme Court found that the main importance should not be given to the presence of penalties and incentives. But in practice they are still regarded as fundamental factors.
- Work. Those convicts who do not work in prisons cannot be released early.
- Social activity. Participation in a musical group or sporting event is also important. In this way, the prisoner shows that he can be part of a team and, accordingly, reintegrate into society.
- Working with a narcologist. If a citizen was also found in a state of drug intoxication, he needs to prove that he has gotten rid of his addiction and will be able to lead his life in freedom without using drugs.
- Working with a psychologist. Receiving a good reference from him may be a reason for approval of early release.
The court will not focus only on one point. He will look at the situation as a whole. And even if certain conditions are not met, this does not mean that parole is impossible.
Article 228 of the Criminal Code of the Russian Federation is complicated by the fact that parole under it is not often approved. There are not many positive practices. This does not mean that the convicted person will not be able to leave earlier. This means that he needs to try and really convince the judges that he can become a full and useful member of society.
The application for parole is submitted by the colony
Misconception:
In my opinion, this is the strangest misconception, but also one of the most persistent. Indeed, many convicts are confident that the application for parole at the right time is submitted by the institution itself. So they sit until the end of the term, waiting.
In fact:
The right to apply for parole belongs to the convicted person himself. In addition to him, a lawyer and legal representatives (for example, guardians) can also go to court. Moreover, if the petition is filed by a non-convicted person, the court must clarify whether it supports the petition. The law also provides for the right to refuse one’s own parole—including the convict may consider that he has not yet sufficiently reformed.
The colony administration can also go to court with a request for parole. I have not yet encountered such cases. Basically, you have to deal with the obstacles that FSI officers create on your way to parole.
In fairness, I would like to note that in a number of institutions there are heads of detachments who literally push their charges onto parole - they run around with them, prepare characteristics and documents, and give advice related to serving their sentences. These are rare cases, but they exist and it would be unfair not to mention them.
