Article 73 of the Criminal Code of the Russian Federation. Conditional sentence

The concept of probation

A suspended sentence is not a criminal punishment; it is a measure of a criminal law nature. It is not included in the list of types of punishment provided for in Art. 44 of the Criminal Code of the Russian Federation. The presence of the institution of probation in the criminal law is the implementation of the principles of justice and humanism.

A suspended sentence means that the court, when passing a verdict of guilty and assigning a specific type of punishment to the convicted person and determining its term, decides to consider the imposed punishment suspended (without actually serving the sentence), i.e. does not carry it out under the condition that the convicted person fulfills certain requirements.

Thus, a conditional sentence is a measure of a criminal law nature, which consists in establishing for a convicted person, whose correction can be achieved without actually serving the sentence, a probationary period during which the convicted person must prove his correction.

Conditions and grounds for applying probation

The grounds for applying a suspended sentence are exhaustive and are enshrined in Part 1 of Art. 73 of the Criminal Code of the Russian Federation.

The law allows the appointment of a suspended sentence only in relation to persons who are assigned the types of punishment provided for in Part 1 of Article 73 of the Criminal Code of the Russian Federation:

two military (restrictions on military service, detention in a disciplinary military unit);
two general (correctional labor, imprisonment).

In this case, the term of imprisonment cannot exceed eight years.

Only basic punishments can be considered conditional.

For persons who pose a very high degree of danger (taking into account their qualities and the nature of the crime committed), the law establishes a ban on the use of a suspended sentence. In Part 1 of Art. 73 of the Criminal Code of the Russian Federation contains an indication of cases in which a suspended sentence cannot be applied.

Such types of punishment as a fine, deprivation of the right to hold certain positions or engage in certain activities, arrest, or compulsory labor cannot be considered conditional

According to the law, a suspended sentence can be assigned for a crime of any category (minor gravity, moderate gravity, grave and especially grave).

The condition for the application of a suspended sentence is the possibility, established by the court, of correcting the convicted person without actually serving the assigned sentence. The conclusion about the existence of such a possibility is based on taking into account the nature and degree of public danger of the crime committed, the identity of the perpetrator, as well as mitigating and aggravating circumstances (clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2015 N 58).

As stated above, the Criminal Code of the Russian Federation does not directly prohibit the use of a suspended sentence in relation to a person who has committed a serious or especially serious crime. However, established judicial practice always proceeds from the fact that a suspended sentence can be applied to persons who have committed such crimes only as an exception. The court may apply a conditional sentence to individual participants in such crimes only in cases where the secondary role of these persons is established, and also if the data characterizing the personality of the perpetrator and the circumstances in which the crime was committed give grounds to consider it inappropriate to isolate the convicted person from society. This is the reason for the establishment in law of a maximum term of imprisonment, which can be assigned conditionally.

Article 73. Conditional sentence

[Criminal Code] [General Part] [Section III] [Chapter 10]
. If, having imposed correctional labor, restrictions on military service, detention in a disciplinary military unit or imprisonment for a term of up to eight years, the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence, it decides to consider the imposed punishment suspended. A suspended sentence is not imposed:

a) those convicted of crimes against the sexual integrity of minors under fourteen years of age;
a.1) convicted for crimes provided for in parts one and two of Article 205.1, Article 205.2, part two of Article 205.4, parts one - three of Article 206, part four of Article 210, Articles 210.1, 360 of this Code;
b) when committing a serious or especially serious crime during the probationary period, with a conditional sentence imposed for committing an intentional crime, or during the unserved part of the sentence imposed for committing an intentional crime, with conditional early release;
c) in case of a dangerous or especially dangerous relapse.

. When assigning a suspended sentence, the court takes into account the nature and degree of social danger of the crime committed, the identity of the perpetrator, including mitigating and aggravating circumstances.

. When assigning a suspended sentence, the court sets a probationary period during which the suspended sentenced person must prove his correction by his behavior. In case of imposition of imprisonment for a term of up to one year or a more lenient type of punishment, the probationary period must be no less than six months and no more than three years, and in case of imposition of imprisonment for a term of more than one year - no less than six months and no more than five years. . The probationary period is calculated from the moment the sentence enters into legal force. The probationary period includes the time elapsed from the date of pronouncement of the sentence.

3.1. If a sentence is imposed in the form of detention in a disciplinary military unit, the conditional probationary period is established within the limits of the remaining period of military service on the day the verdict is announced.

. With a suspended sentence, additional types of punishment may also be imposed.

. The court, when assigning a suspended sentence, imposes on the conditionally convicted person, taking into account his age, ability to work and state of health, the performance of certain duties: not to change his permanent place of residence, work, study without notifying the specialized government body that monitors the behavior of the conditionally convicted person, not to visit certain places, undergo treatment for alcoholism, drug addiction, substance abuse or a sexually transmitted disease, work (get a job) or continue studying in a general education organization. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction.

. Control over the behavior of a conditionally convicted person is carried out by an authorized specialized state body, and in relation to military personnel - by the command of military units and institutions.

. During the probationary period, the court, on the proposal of the body monitoring the behavior of the conditionally convicted person, may cancel in whole or in part or supplement the duties previously established for the conditionally convicted person.

Note. For the purposes of this article, as well as articles , , , of this Code, crimes against the sexual integrity of minors under fourteen years of age include crimes provided for in Articles 131-135, 240, 241, 242.1, 242.2 of this Code, committed against minors, not who have reached the age of fourteen.

The procedure for assigning a suspended sentence. Probation

If a citizen is found guilty of committing a crime, the court issues a guilty verdict. The convicted person is sentenced, but it is indicated that the sentence imposed should be considered conditional .

In the case of a suspended sentence, two terms : the sentence period and the probationary period .

A probationary period is a control period of time during which the convicted person must prove his correction by his behavior. Its duration depends on the type and duration of the imposed punishment. When imposing a sentence of imprisonment for a term of up to one year or a more lenient punishment, the probationary period must be no less than six months and no more than three years, and in the case of imposing imprisonment for a term of more than one year - no less than six months and no more. five years (Part 3 of Article 73 of the Criminal Code of the Russian Federation).

The criminal law excludes the possibility of court discretion when determining the probationary period for a person sentenced to confinement in a disciplinary military unit (Part 3.1 of Article 73 of the Criminal Code of the Russian Federation).

The probationary period is calculated from the moment the sentence enters into legal force . The probationary period includes the time elapsed from the day the verdict was announced (Part 3 of Article 73 of the Criminal Code of the Russian Federation).

Within the meaning of the law, a probationary period may be longer in duration than the imposed punishment (for example, one year of imprisonment with a probationary period of two years) equal to the imposed punishment, and it may also be less than the imposed punishment (for example, four years of imprisonment with a probationary period of three years).

Until the end of the probationary period, a person is considered to have a criminal record . If there are no violations on the part of the convicted person of the duties assigned by the court, after the expiration of the probationary period, the criminal record is expunged on the basis of paragraph “a” of Part 3 of Art. 86 of the Criminal Code of the Russian Federation.

When rendering a suspended sentence of imprisonment, the type of correctional institution is not indicated .

If the court comes to the conclusion that it is possible to impose a suspended sentence on a person who has committed two or more crimes , such a decision is made not for each crime, but when finally imposing punishment for a set of crimes.

In case of a suspended sentence of a person who, in this case, was kept in custody for some time as a result of detention or application of a preventive measure, or was under house arrest, or in a medical organization providing medical care in an inpatient setting, or in a medical organization providing psychiatric care in in stationary conditions, this time is subject to credit towards the sentence in accordance with the provisions of Art. 72 of the Criminal Code of the Russian Federation. In accordance with clause 9, part 1, art. 308 of the Code of Criminal Procedure of the Russian Federation, the decision to count the specified time into the sentence must be reflected in the operative part of the sentence.

In case of a suspended sentence under the second sentence for a crime committed before the proclamation of the first sentence, for which a suspended sentence was also applied, the court in the operative part of the second sentence must indicate the independence of the execution of these sentences, since the probationary period established for a suspended sentence is not a punishment and cannot be absorbed by a longer probationary period, nor partially or completely suspended.

When changing the sentence on appeal, for which Art. 73 of the Criminal Code of the Russian Federation and the imposed punishment was decided to be considered conditional, it is impossible to assign a real punishment, even if the type of such punishment is more lenient, with the exception of cases of consideration of a criminal case on the proposal of a prosecutor or a complaint from a victim containing relevant arguments.

Article 73 of the Criminal Code of the Russian Federation. Conditional sentence (current version)

1. If, having imposed correctional labor, restrictions on military service, detention in a disciplinary military unit or imprisonment for a term of up to eight years, the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence, it decides to consider the imposed punishment suspended. A suspended sentence is not imposed:

a) those convicted of crimes against the sexual integrity of minors under fourteen years of age;

a.1) convicted for crimes provided for in parts one and two of Article 205.1, Article 205.2, part two of Article 205.4, parts one - three of Article 206, part four of Article 210, Articles 210.1 and 360 of this Code;

b) when committing a serious or especially serious crime during the probationary period, with a conditional sentence imposed for committing an intentional crime, or during the unserved part of the sentence imposed for committing an intentional crime, with conditional early release;

c) in case of a dangerous or especially dangerous relapse.

2. When assigning a suspended sentence, the court takes into account the nature and degree of social danger of the crime committed, the identity of the perpetrator, including mitigating and aggravating circumstances.

3. When assigning a conditional sentence, the court establishes a probationary period during which the conditionally convicted person must prove his correction by his behavior. In case of imposition of imprisonment for a term of up to one year or a more lenient type of punishment, the probationary period must be no less than six months and no more than three years, and in case of imposition of imprisonment for a term of more than one year - no less than six months and no more than five years . The probationary period is calculated from the moment the sentence enters into legal force. The probationary period includes the time elapsed from the date of pronouncement of the sentence.

4. In the event of a suspended sentence, additional types of punishment may also be imposed.

5. The court, when assigning a conditional sentence, imposes on the conditionally convicted person, taking into account his age, ability to work and state of health, the performance of certain duties: not to change his permanent place of residence, work, study without notifying the specialized state body that monitors the behavior of the conditionally convicted person, not to visit certain places, undergo treatment for alcoholism, drug addiction, substance abuse or sexually transmitted diseases, work (get a job) or continue studying in a general education organization. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction.

6. Control over the behavior of a conditionally convicted person is carried out by an authorized specialized state body, and in relation to military personnel - by the command of military units and institutions.

7. During the probationary period, the court, upon the proposal of the body exercising control over the behavior of the conditionally convicted person, may cancel in whole or in part or supplement the duties previously established for the conditionally convicted person.

Note. For the purposes of this article, as well as articles 79, 80, 82 and 97 of this Code, crimes against the sexual integrity of minors under fourteen years of age include crimes provided for in articles 131 - 135, 240, 241, 242.1 and 242.2 of this Code, committed in in relation to minors under fourteen years of age.

Assignment of additional punishments for suspended sentences

In the event of a suspended sentence, additional punishments may be applied along with the main ones . The Criminal Code of the Russian Federation does not provide for the principle of conditionality regarding additional types of punishment, therefore all of them must be implemented realistically . Because of this, the operative part of the sentence must indicate that, in accordance with Art. 73 of the Criminal Code of the Russian Federation, only the main punishment is recognized as conditional.

For example, for violation of traffic rules by a person driving a car, resulting in the infliction of grievous harm to the health of the victim through negligence, the perpetrator is punished by two years of imprisonment with deprivation of the right to drive vehicles for a period of three years. In this situation, the court may consider the main punishment to be suspended, and as for the additional punishment, it must be actually executed, and the guilty person does not have the right to drive vehicles during the period established by the court.

Commentary to Art. 73 of the Criminal Code of the Russian Federation

The essence of a conditional sentence is that the court, when passing a guilty verdict, assigns a specific type of punishment to the convicted person and determines its term, but decides to consider the imposed punishment suspended, i.e. not to actually carry it out under the condition that the convicted person fulfills certain requirements and complies with the duties assigned by the court. Therefore, we can say that the legal nature of a suspended sentence consists in the conditional release of the convicted person from actually serving the sentence assigned to him. A suspended sentence is not a criminal punishment. It is not included in the list of types of punishment provided for in Art. 44 of the Criminal Code of the Russian Federation. The presence in the criminal law of the institution of suspended sentence is the implementation of the principles of justice and humanism, and this institution is applied in cases where the nature and degree of public danger of the crime and the identity of the perpetrator indicate that there is no need for the real application of criminal punishment, and achieving the goal of correcting the convicted person is possible without applying restrictions related to the actual impact of punishment. These positions must be substantiated in the court's verdict. Therefore, for example, the Cassation Ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 24, 2005 N 67-o05-62 declared the application of a suspended sentence to S. and Sh to be incorrect. As noted in the Ruling, deciding the issue of appointing S. and Sh. conditional sentence, the court indicated that it takes into account all the circumstances of the crimes committed and believes that their correction is possible without actually serving the sentence. However, the court did not indicate exactly what circumstances of the case it had in mind, which would indicate the possibility of correcting the convicts under conditional sentences, and also did not indicate due to what circumstances the court came to the conclusion about the possibility of correcting S. and Sh. without actually serving the sentence . Given such data, the application of a suspended sentence to S. and Sh. cannot be considered justified.

In Art. 73 of the Criminal Code of the Russian Federation provides a complete list of types of punishments in respect of which the court may decide to consider the imposed punishment suspended. In this case, the court must take into account data characterizing the personality of the perpetrator, the nature and degree of public danger of the crime committed, and circumstances mitigating and aggravating his guilt. The assignment of a suspended sentence must meet the goals of correcting the conditionally convicted person, due to which he may be assigned to perform certain duties specified in Part 5 of Art. 73 of the Criminal Code of the Russian Federation. In necessary cases, taking into account the personality of the perpetrator, his behavior in the family and other circumstances, the convicted person may be assigned to perform other duties not listed in Part 5 of the said article of the Criminal Code of the Russian Federation.

It should also be noted that a suspended sentence of imprisonment can be imposed only when imprisonment itself as a form is imposed for a period of up to eight years and if the court comes to the conclusion that it is possible to correct the convicted person without actually serving the sentence.

Such types of punishment as a fine, deprivation of the right to hold certain positions or engage in certain activities, arrest, or compulsory labor cannot be considered conditional. This is due to the fact that the execution of these punishments is more effective when they are actually served.

When assigning a suspended sentence, the court sets a probationary period during which the suspended sentenced person must prove his correction by his behavior. In case of imposition of imprisonment for a term of up to one year or a more lenient type of punishment, the probationary period must be no less than six months and no more than three years, and in case of imposition of imprisonment for a term of more than one year - no less than six months and no more than five years .

As the Constitutional Court of the Russian Federation indicated in Resolution No. 3-P of March 19, 2003, the federal legislator, implementing what belongs to him by virtue of paragraphs “c”, “o” of Art. 71 and part 1 of Art. 76 of the Constitution of the Russian Federation, powers in the field of regulation and protection of human and civil rights and freedoms, as well as criminal and penal legislation, are entitled within the limits provided for by the Constitution of the Russian Federation and on the basis of those enshrined in Part 1 of Art. 1, art. 2, part 2 art. 4, part 1 and 2 art. 15, part 1 art. 49 and part 3 of Art. 55 principles independently determine the content of the provisions of criminal and penal laws, including establishing the criminality of specific socially dangerous acts, their punishability and other criminal legal consequences of a person committing a crime.

The discretionary powers of the legislator include, in particular, determining the duration and procedure for calculating the probationary period assigned to a person in the event of his conditional conviction, since the Constitution of the Russian Federation does not contain direct instructions in this regard and since the solution to this issue is carried out within the framework of the subject of regulation of the relevant branch of law and in in accordance with the principles enshrined in the Constitution of the Russian Federation and sectoral legislation.

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Determination of the Constitutional Court of the Russian Federation of October 16, 2007 N 826-О-О // Constitutional justice in the CIS and Baltic countries. 2008. N 2.

When rendering a suspended sentence of imprisonment, the type of correctional institution is not indicated.

If the court comes to the conclusion that it is possible to impose a suspended sentence on a person who has committed two or more crimes, such a decision is made not for each crime, but when finally imposing punishment for a set of crimes.

When applying a suspended sentence after the verdict is announced, the presiding officer explains to the convicted person the meaning of the probationary period and warns about the consequences of committing a new crime or systematic violations of public order (for military personnel - also military order) during the probationary period, as well as violation of the duties assigned to him, if any. . The specified explanation and warning must be reflected in the minutes of the court session.

In the event of a suspended sentence, additional punishments may be applied along with the main ones. The Criminal Code of the Russian Federation does not provide for the principle of conditionality regarding additional types of punishment, therefore all of them must be implemented realistically. Because of this, the operative part of the sentence must indicate that, in accordance with Art. 73 of the Criminal Code of the Russian Federation, only the main punishment is recognized as conditional.

When applying deprivation of a special, military or honorary title, class rank or state awards to a conditionally convicted person as an additional punishment, it should be taken into account that, provided for in Art. 48 of the Criminal Code of the Russian Federation, punishment can be imposed for committing a grave or especially grave crime. At the same time, the sentence must indicate why it is impossible for the defendant to retain these titles and awards while simultaneously applying a suspended sentence to him. A change by a higher court in the classification of the crime committed by the perpetrator from a serious to a less serious crime entails the need to exclude from the sentence the instruction to deprive the convicted person of a special rank or state awards.

The Criminal Code of the Russian Federation does not prohibit the use of a suspended sentence for any crime, regardless of what category it belongs to (Article 15). However, one should be extremely careful about assigning a suspended sentence for serious and especially serious crimes, bearing in mind that the very fact of their commission, the social and public danger, and the onset of consequences indicate the inappropriateness of assigning a suspended sentence to the perpetrator. In addition, such a punishment will not fully reflect the goals of sentencing (social justice, correction of the convicted person and prevention of the commission of new crimes).

The assignment of a suspended sentence must meet the goals of correcting the conditionally convicted person, due to which he may be assigned to perform certain duties specified in Part 5 of Art. 73 of the Criminal Code of the Russian Federation. In necessary cases, taking into account the personality of the perpetrator, his behavior in the family and other circumstances, the convicted person may be assigned to perform other duties not listed in Part 5 of Art. 73 of the Criminal Code of the Russian Federation.

The Criminal Code of the Russian Federation provides for the possibility of the court imposing on a conditionally convicted person the following duties: not to change his permanent place of residence, work, study without notifying the specialized government body that carries out the correction of the convicted person, not to visit certain places, to undergo treatment for alcoholism, drug addiction, substance abuse or venereal disease , provide financial support to the family. The list of responsibilities is not closed. The court may impose on the conditionally convicted person the performance of other duties that contribute to his correction.

But these duties should not be the second main punishment, as was done in the case of K., to whom, under Part 1 of Art. 161 of the Criminal Code of the Russian Federation in accordance with Part 5 of Art. 73 of the Criminal Code of the Russian Federation, a sentence of imprisonment was imposed and the obligation was imposed to perform free public works for a duration half as long as the minimum duration of such a punishment as compulsory work. This circumstance, in the opinion of the presidium of the regional court, excluded the imposed obligation from the number of punishments provided for in Art. 44 of the Criminal Code of the Russian Federation.

The Presidium of the Supreme Court of the Russian Federation changed the existing court decisions.

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Resolution of the Presidium of the Supreme Court of the Russian Federation N 891p2002 in the case of Koloev // Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2002 (in criminal cases) (approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of March 12, 2003) // Bulletin of the Supreme Court of the Russian Federation . 2003. N 7.

When rendering a sentence by which the conviction is considered suspended, the court is obliged to explain to the convicted person the conditions for serving such a sentence and the consequences for evading the duties assigned to him.

Control over the behavior of a conditionally convicted person is carried out by an authorized specialized state body (criminal enforcement inspection), and in relation to military personnel - by the command of the military unit and institution.

After registration, the conditionally convicted person is called to the inspectorate for a conversation, during which he is explained the duties, the consequences of failure to fulfill them and responsibility for violating public order or committing a new crime, for which a subscription is taken, personal data is clarified and checked, and information about close relatives is found out. and persons who can influence the convicted person, as well as other issues relevant to monitoring his behavior. A certificate is drawn up about the results of the conversation, which, together with the signature, is attached to the personal file of the convicted person.

A conditionally convicted person is obliged to report to the inspectorate about his behavior, fulfill the duties assigned by the court, and appear when summoned to the inspectorate.

In order to monitor the behavior of probationers during the probationary period, the inspectorate:

— at least once a quarter, checks conditionally convicted persons according to special records of the internal affairs body to identify new offenses and bring them to criminal liability. Certificates of inspection results are filed in the personal files of probationers;

- takes part in preventive measures carried out by internal affairs bodies to check conditionally convicted persons at their place of residence and in public places. Certificates of inspection results are filed in the personal files of probationers;

- systematically (at least once a quarter) sends lists of probationers registered with the inspectorate to the relevant departments of the internal affairs bodies. Certificates of preventive conversations with him and all materials relating to the behavior of the convicted person and the performance of his duties, as well as explanations of the convicted person and other documents are attached to the personal file of the convicted person.

In relation to a conditionally convicted person, who has been ordered by the court not to change his place of work or study without notifying the inspectorate, to undergo treatment for alcoholism, drug addiction, substance abuse or a venereal disease, he notifies the administration of the organization, educational institution and medical institution.

A registration sheet is created in relation to a conditionally convicted person who has been ordered by the court to appear at the inspection for registration.

For good behavior and conscientious performance by a conditionally convicted person of the duties assigned by the court during the probationary period, the court, upon the proposal of the inspectorate, may cancel in whole or in part the duties assigned to him.

In cases where a probationer shows dishonesty and commits individual violations in fulfilling the duties assigned to him, the supervisory authority may apply to the court with a proposal to supplement the previously assigned duties with new ones. The court, considering the submission of the supervisory authority, has the right to both satisfy the requests set out in it and refuse to satisfy them. It should be emphasized here that the court does not have the right to replace some duties with others, but only has the right to cancel in whole or in part the duties assigned by a court verdict, or to supplement the duties previously established by the verdict with others.

Assignment of responsibilities to a conditionally convicted person and control over conditionally convicted persons

The court may impose two groups of duties on a conditionally convicted person. The responsibilities of the first group are directly listed in Part 5 of Art. 73 of the Criminal Code of the Russian Federation, and the second group is not enshrined in the Criminal Code of the Russian Federation (for example, the obligation not to leave one’s place of residence at night, if this is not related to the performance of work duties, the obligation to make amends for the damage caused by the crime within the period established by the court).

Control over the behavior of conditionally convicted persons during the probationary period is carried out by the penal inspections (CII) at the place of residence of the conditionally convicted persons, and in relation to conditionally convicted military personnel - by the command of their military units (Part 1 of Article 187 of the Penal Code of the Russian Federation). The behavior of suspended minors is controlled by the juvenile affairs inspectorate.

By virtue of Part 4 of Art. 188 of the Penal Code of the Russian Federation, all conditionally convicted persons are required to report to the correctional institute or the command of the military unit about their behavior, perform the duties assigned to them, and appear when called to the correctional institute, therefore, the sentence does not require additionally assigning these responsibilities to the convicts.

It depends on the behavior of the conditionally convicted person during the probationary period and his attitude towards the duties assigned to him whether these duties will be completely or partially canceled , or, conversely, supplemented with new ones that can increase the effectiveness of his correction .

Cancellation or addition of the established duties of a conditionally convicted person

In accordance with Part 7 of Article 73 of the Criminal Code of the Russian Federation and on the basis of Clause 8 of Art. 397 of the Code of Criminal Procedure, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may, during the probationary period, cancel in whole or in part or supplement the duties previously established for the conditionally convicted person.

The court has the right to cancel in whole or in part the duties assigned to the conditionally convicted person if it establishes, for example, that the conditionally convicted person conscientiously fulfills the duties assigned to him by the court, is positively characterized at the place of residence, work, study or service, there have been no complaints about his behavior, and also if will establish other circumstances (pregnancy or birth of a child, reaching retirement age, disability, etc.).

to supplement the duties previously established for a conditionally convicted person if it comes to the conclusion that the conditionally convicted person did not report to the correctional institution or the command of the military unit about his behavior, did not fulfill the duties assigned to him by the court, did not appear when called to the correctional institution, and also if it establishes other circumstances indicating the advisability of imposing other duties on a conditionally convicted person (Part 2 of Article 190 of the Penal Code of the Russian Federation).

A copy of the relevant court decision on the issues specified above is sent to the body executing the punishment and to the court that passed the sentence for inclusion in the materials of the criminal case.

Cancellation of probation and execution of punishment

Part 3 Art. 74 of the Criminal Code of the Russian Federation provides that if a conditionally convicted person systematically violated public order during the probationary period, for which he was brought to administrative responsibility, systematically failed to fulfill the duties assigned to him by the court, or escaped control, an inspection within three days (excluding weekends and holidays) ) from the moment these facts are established, sends to the court a proposal to cancel the suspended sentence and execute the punishment imposed by the court verdict.

A systematic violation of public order is the commission by a probationer of two or more violations of public order within one year, for which he was brought to administrative responsibility.

Systematic failure to fulfill duties is the commission of prohibited or failure to perform actions prescribed to a conditionally convicted person more than twice within one year, or prolonged (more than 30 days) failure to fulfill the duties assigned to him by the court (Part 5 of Article 190 of the Penal Code of the Russian Federation).

It should be noted that the Code of the Russian Federation on Administrative Offenses in Chapter 20 contains a list of offenses that infringe on public order and public safety. Consequently, the approach is quite controversial when the courts accept the facts of bringing citizens to administrative responsibility for offenses provided for in other chapters of the Code of Administrative Offenses of the Russian Federation as a basis for canceling a suspended sentence.

Also, if a conditionally convicted person, during an extended probation period in connection with his evasion of compensation for harm caused by a crime, in the amount determined by a court decision, systematically evades compensation for said harm , the court, upon the proposal of the body specified in Part 1 of Art. 74 of the Criminal Code of the Russian Federation, can also make a decision to cancel the suspended sentence and execute the punishment imposed by the court verdict (Part 2.1 of Article 74 of the Criminal Code of the Russian Federation).

Separately, it should be noted that the conditionally convicted person committed a new crime during the probationary period .

If a conditionally convicted person commits a crime through negligence or an intentional crime of minor or moderate gravity during the probationary period, the issue of canceling or maintaining the conditional sentence is decided by the court (Part 4 of Article 74 of the Criminal Code of the Russian Federation).

And if a conditionally convicted person commits an intentional grave or especially grave crime during the probationary period, the court revokes the conditional sentence and imposes a punishment on him according to the rules provided for in Art. 70 of the Criminal Code of the Russian Federation (based on the totality of sentences) (Part 5 of Article 74 of the Criminal Code of the Russian Federation).

Judicial practice under Article 73 of the Criminal Code of the Russian Federation

An example of a court decision on the issue of serving a suspended sentence is the court hearing in 2021 case No. 4/15-17.
According to the court decision, citizen Polyakov was sentenced to three and a half years for possession of firearms and drugs. The judge came to the conclusion that real correction of the offender is possible without imprisonment, so the defendant’s real sentence was replaced with a suspended sentence of three years. A year later after the sentencing, the control and supervisory authority found that the convict had violated the rules of conduct while on probation, having found him drunk.

After establishing this fact, the authority sent the following submission to the court:

On extending the term of a suspended sentence.
About being tested by a narcologist.
About undergoing treatment in the presence of confirmatory drug tests.

All these proposals were indicated in the submission, despite the statement of the convict that this fact was isolated, and he had no other violations of the conditional regime.

Based on the submission of the control body, the court scheduled a hearing. After hearing the parties and examining the documents presented by the correctional authority, the court found that this violation of the regime allows not only to increase the term of the suspended sentence, but also to register the convicted person with a narcologist and undergo mandatory treatment if the use of narcotic substances is detected.

Thus, the defendant, for being drunk, was sentenced to mandatory registration with a narcologist and an extension of the probation period for two months.

Cancellation of probation and expungement of criminal record

After the expiration of the probationary period, if the conditionally convicted person complied with the instructions of the court sentence, his conviction for this crime (for which the person was given a suspended sentence) is expunged (clause “a”, part 3 of article 86 of the Criminal Code of the Russian Federation).

However, by virtue of Part 1 of Art. 74 of the Criminal Code of the Russian Federation, if before the expiration of the probationary period the conditionally convicted person has proven his correction by his behavior, compensated for the damage (in whole or in part) caused by the crime, in the amount determined by the court decision, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel conditional sentence and the removal of a convicted person's criminal record . In this case, the suspended sentence may be revoked after the expiration of at least half of the established probationary period.

Clause 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 20, 2011 No. 21 “On the practice of application by courts of legislation on the execution of sentences” contains the following explanation:

“when considering the issue specified in paragraph 7 of Article 397 of the Code of Criminal Procedure of the Russian Federation, when a conditionally convicted person has been assigned an additional type of punishment and before the expiration of the probationary period he has proven his correction by his behavior, the court makes a decision to cancel the conditional sentence and to remove the convicted person’s criminal record (part 1 of the article 74 of the Criminal Code of the Russian Federation) only after he has served an additional sentence.”

Judicial practice: sentences and punishment under Art. 73 of the Criminal Code of the Russian Federation

Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 27, 2002 N 29 ON JUDICIAL PRACTICE IN CASES OF THEFT,...
Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION of November 15, 2021 N 48 ON THE PRACTICE OF APPLICATION BY COURTS OF LEGISLATION GOVERNING FEATURES...
Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2021 Judicial Collegium for Military Personnel of the Supreme...
Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
Ruling of the Constitutional Court of the Russian Federation dated March 13, 2018 N 578-O THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION RULING dated March 13, 2018 N 578-O ON THE REFUSAL TO ACCEPT A CITIZEN’S COMPLAINT FOR CONSIDERATION...
Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 17, 2021 N 43 ON SOME ISSUES OF JUDICIAL PRACTICE IN CASES...
Judicial Collegium for Criminal Cases, appeal:... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-APU 17-21 APPEAL DECISION Moscow October 04, 2021 Judicial Collegium for Criminal Cases...
Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated June 25, 2021 N 18 ON JUDICIAL PRACTICE IN CASES OF CRIMES,...
Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated May 24, 2021 N 21 ON JUDICIAL PRACTICE IN CASES OF CRIMES,...