Article 74 of the Criminal Code of the Russian Federation. Cancellation of suspended sentence or extension of probation period

Criminal Code of the Russian Federation in the latest edition:

Article 74 of the Criminal Code of the Russian Federation. Cancellation of suspended sentence or extension of probation period

1. 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, upon the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional sentence conviction 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.

2. If a conditionally convicted person has evaded fulfilling the duties assigned to him by the court, has evaded compensation for damage (in whole or in part) caused by the crime in the amount determined by the court decision, or has committed a violation of public order for which he was brought to administrative responsibility, the court upon the proposal of the body specified in part one of this article, may extend the probationary period, but not more than by one year.

2.1. If a conditionally convicted person, during an extended probation period in connection with his evasion of compensation for damage caused by a crime, in the amount determined by a court decision, systematically evades compensation for said damage, the court, upon the proposal of the body specified in part one of this article, may also make a decision on the revocation of a suspended sentence and the execution of a sentence imposed by a court verdict.

3. If a conditionally convicted person, during the probationary period, systematically violated public order, for which he was brought to administrative responsibility, systematically failed to fulfill the duties assigned to him by the court, or escaped control, the court, upon the proposal of the body specified in part one of this article, may make a decision on the revocation of a suspended sentence and the execution of a sentence imposed by a court verdict.

4. If a conditionally convicted person commits a crime through negligence or an intentional crime of minor or medium gravity during the probationary period, the issue of canceling or maintaining the conditional sentence is decided by the court.

5. If a conditionally convicted person commits an intentional grave or especially grave crime during the probationary period, the court shall revoke the conditional sentence and impose a punishment on him according to the rules provided for in Article 70 of this Code. According to the same rules, punishment is imposed in cases provided for in part four of this article.

6. The rules established by parts four and five of this article also apply if the crimes specified in these parts were committed before the sentence providing for a suspended sentence came into force. In this case, trial of a new crime can take place only after the sentence providing for a suspended sentence has entered into legal force.

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Comments on Article 74 of the Criminal Code of the Russian Federation

Issues of the practice of canceling a suspended sentence or extending the probationary period are explained in paragraphs 44, 45, 53, 63, 66 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2015 N 58 (paragraphs 44, 45, 53, 63, 66) .

In general, the execution of a suspended sentence ends upon expiration of the probationary period. This happens automatically, 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.

At the same time, a suspended sentence may be canceled by the court ahead of schedule upon the proposal of the body exercising control over the behavior of the suspended sentenced person, in the event that he proves by his behavior that he has reformed.

Conditions for early revocation of probation by the court

The Criminal Code of the Russian Federation, as an incentive measure, provides for the possibility of early cancellation by the court of a suspended sentence with the removal of a convicted person's criminal record. To use it, four conditions must be met:

1) correction of a conditionally convicted person before the expiration of the probationary period (this may be evidenced by a conscientious attitude to the performance of the duties assigned by the court during the probationary period; his employment, non-commitment of offenses, maintenance of public order, etc.);
2) expiration of at least half of the probationary period established by the sentence;
3) compensation for damage (in whole or in part) caused by the crime in the amount determined by the court decision. If at the court hearing it is established that the convicted person took measures to compensate for the damage caused by the crime (material damage and moral damage), but due to objective reasons the damage was compensated only in an insignificant amount, then the court does not have the right to refuse to cancel the suspended sentence only on this basis;
4) representation of the body exercising control over the behavior of the conditionally convicted person. At the same time, the provisions of Part 1 of Art. 74 of the Criminal Code of the Russian Federation and Part 1 of Art. 399 of the Code of Criminal Procedure of the Russian Federation do not prevent a conditionally convicted person from applying to the court with a petition to cancel the conditional sentence and remove the criminal record and imply the obligation of the court to consider this petition on the merits, regardless of the presence of a representation from the body monitoring the behavior of the conditionally convicted person on this issue.

If a conditionally convicted person is 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 only after he has served the additional punishment (clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20. 2011 N 21 “On the practice of courts in applying legislation on the execution of sentences”).

The Criminal Code of the Russian Federation also provides for two types of penalties for violation by a probationer of the requirements imposed on him: this is the possibility of extending the probationary period or canceling the suspended sentence .

Commentary to Art. 74 Criminal Code

1. The Criminal Code, as an incentive measure, provides for the possibility of early cancellation by the court of a suspended sentence with the removal of a convicted person’s criminal record. For its application, three conditions must be present: a) correction of the conditionally convicted person before the expiration of the probationary period (this may be evidenced by a conscientious attitude to the fulfillment of the duties assigned by the court during the probationary period; his employment, non-commitment of offenses, observance of public order, etc.); b) expiration of at least half of the probationary period established by the sentence; c) compensation for damage caused by the crime.

2. The Criminal Code also provides for two types of penalties for violation by a conditionally convicted person of the requirements imposed on him: this is the possibility of extending the probationary period or canceling the conditional sentence.

3. Extension of the probationary period is possible on any of three grounds: a) evasion of the duties assigned to the convicted person, i.e. intentional, if there is a real possibility, failure to fulfill any of the duties assigned by the court; b) violation of public order, for which the conditionally convicted person was brought to administrative responsibility; c) evasion of compensation for damage caused by a crime.

The probationary period established by the sentence may be extended by no more than one year. The law does not provide for a repeated extension of the probationary period.

Systematic evasion of a person during an extended probation period from compensation for harm may lead to the revocation of the suspended sentence (Part 2.1).

4. Cancellation of a suspended sentence, provided for as a penalty, means turning to the actual execution of the suspended sentence. The grounds for such cancellation are: a) systematic violation of public order, for which the conditionally convicted person was brought to administrative responsibility (Part 5 of Article 190 of the Penal Code of the Russian Federation); b) systematic failure to fulfill the duties assigned to him by the court (Part 5 of Article 190 of the Penal Code of the Russian Federation); c) the fact of concealing a conditionally convicted person from control (Part 6 of Article 190 of the Penal Code of the Russian Federation); d) commission of a crime of minor or medium gravity during the probationary period; e) commission of a grave or especially grave crime during the probationary period. The first four grounds for revoking a probationary period are optional (the court has the right to either maintain or revoke the suspended sentence), the last is mandatory (the court is obliged to cancel the suspended sentence).

5. If a person commits a new crime and the suspended sentence is revoked, the punishment is imposed based on the totality of sentences (Article 70 of the Criminal Code): to the punishment imposed for the new crime, the court fully or partially adds the punishment imposed conditionally on the first sentence (Part 5 of Art. 74 of the Criminal Code).

6. The rules established by parts 4, 5 of Art. 74 of the Criminal Code are also applied if the crimes specified in these parts were committed before the sentence providing for a suspended sentence entered into legal force. In this case, trial of a new crime can take place only after the sentence providing for a suspended sentence has entered into legal force.

Grounds for extending the probationary period

Part 2 of Article 74 of the Criminal Code of the Russian Federation regulates the issues of extending the probationary period.

Extension of the probationary period is possible for any of three reasons:

1) evasion from fulfilling the duties assigned to the convicted person , i.e. intentional, if there is a real possibility, failure to fulfill any of the duties assigned by the court;
2) violation of public order, for which the conditionally convicted person was brought to administrative responsibility . In relation to an administrative offense, it is the violation associated with an encroachment on public order that is taken into account. Administrative offenses of a different nature are not included in the content of evasion of duties.
3) evasion of compensation for damage (in whole or in part) caused by a crime in the amount determined by a court decision.

The probationary period established by the sentence may be extended by no more than one year . The law does not provide for a repeated extension of the probationary period.

According to the law, the court can extend the probationary period several times, the main thing being that the total extension period does not exceed one year.

If a conditionally convicted person, who, by virtue of Part 3 of Art. 73 of the Criminal Code of the Russian Federation established a maximum probationary period, evaded the performance of duties assigned to him or violated public order, for which an administrative penalty was imposed on him, the court, extending the probationary period, in accordance with Part 2 of Art. 74 of the Criminal Code of the Russian Federation, taking into account the behavior of the convicted person and other data characterizing his personality, may exceed the maximum term, but not more than one year.

Article 74. Cancellation of a suspended sentence or extension of the probationary period

[Criminal Code] [General Part] [Section III] [Chapter 10]
. 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, upon the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional sentence and on 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.

. If a conditionally convicted person has evaded the fulfillment of the duties assigned to him by the court, has evaded compensation for damage (in whole or in part) caused by the crime in the amount determined by the court decision, or has committed a violation of public order for which he was brought to administrative responsibility, the court, upon submission the body specified in part one of this article may extend the probationary period, but not more than by one year.

. If a conditionally convicted person, during the probationary period, systematically violated public order, for which he was brought to administrative responsibility, systematically failed to fulfill the duties assigned to him by the court, or escaped from control, the court, upon the proposal of the body specified in part one of this article, may make a decision to revoke the conditional sentence. conviction and execution of punishment imposed by a court verdict.

. If a conditionally convicted person commits a crime due to negligence or an intentional crime of minor or medium gravity during the probationary period, the issue of canceling or maintaining the conditional sentence is decided by the court.

. 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 Article 70 of this Code. According to the same rules, punishment is imposed in cases provided for in part four of this article.

. The rules established by parts four and five of this article also apply if the crimes specified in these parts were committed before the sentence providing for a suspended sentence came into force. In this case, trial of a new crime can take place only after the sentence providing for a suspended sentence has entered into legal force.

Grounds for revoking a suspended sentence

The abolition of a suspended sentence, provided for as a penalty, means turning to the actual execution of the suspended sentence. The grounds for such cancellation are:

1) systematic evasion of compensation for the specified damage caused by the crime, in the amount determined by a court decision, during the extended probation period;
2) systematic violation of public order , for which the conditionally convicted person was brought to administrative responsibility (Part 5 of Article 190 of the Penal Code of the Russian Federation). It is the violation associated with an encroachment on public order that is taken into account. Administrative offenses of a different nature are not included in the content of evasion of duties;
3) systematic failure to fulfill the duties assigned to him by the court (Part 5 of Article 190 of the Penal Code of the Russian Federation);
4) the fact of concealment (evasion) of a conditionally convicted person from control (Part 6 of Article 190 of the Penal Code of the Russian Federation);
5) commission of a crime of minor or medium gravity during the probationary period;
6) commission of a grave or especially grave crime during the probationary period.

Moreover, in the first five cases, the court has the right to either maintain or revoke the suspended sentence; in the latter case, the court is obliged to cancel the suspended sentence.

A conditionally convicted person whose whereabouts have not been established for more than 30 days is recognized as absconding from control (Article 190 of the Penal Code of the Russian Federation).

The proposal to revoke a suspended sentence indicates specific facts of the convict’s evasion from fulfilling his duties, violation of public order, the time during which he did not appear at the inspection, what measures of influence were taken against him, how he reacted to them, as well as the presence of charges .

In relation to a conditionally convicted person whose whereabouts are unknown, the submission shall indicate the available information that he has escaped from the control of the inspectorate, as well as the results of the initial search activities.

Attached to the submission are characteristics from the place of work, study, information from the local police commissioner, the juvenile affairs unit of the internal affairs body about the behavior of the conditionally convicted person, his explanations and other documents.

When deciding on the possibility of canceling or maintaining a suspended sentence in relation to a person who has committed a new crime through negligence or an intentional crime of minor or moderate gravity during the probationary period, it is necessary to take into account the nature and degree of public danger of the first and second crimes, as well as information about the identity of the convicted person and his behavior during the probationary period. If necessary, to clarify such data, a representative of the body exercising control over the behavior of the conditionally convicted person may be called to the court hearing. Having established that the conditionally convicted person behaved negatively during the probationary period, did not fulfill the duties assigned to him, violated public order, etc., the court, by virtue of Part 4 of Art. 74 of the Criminal Code of the Russian Federation, can revoke the suspended sentence with the reasons for the decision made and impose punishment based on the totality of sentences.

The conclusion about the possibility of maintaining a suspended sentence is set out in the descriptive and motivational part of the sentence, and in its operative part it is indicated that the sentence regarding the suspended sentence for the first sentence is executed independently. If a suspended sentence for the first sentence is maintained, the imposition of a real sentence for the second sentence is not excluded.

If the court refuses to satisfy the inspection's proposal to extend the probationary period or cancel the conditional sentence, the next proposal is submitted to the court after the probationer commits another violation of public order, resulting in administrative liability, or continues to fail to fulfill the duties assigned by the court.

Upon expiration of the probationary period, control over the behavior of the conditionally convicted person ceases, and he is removed from the register with the penal inspection.

Second commentary to Art. 74 of the Criminal Code of the Russian Federation

1. The law provides grounds for both the revocation of a suspended sentence and the extension of the probationary period, taking into account the behavior of the convicted person.

2. A suspended sentence may be revoked if the positive behavior of the convicted person is actually confirmed, even if the probationary period assigned to him by the court has not expired, under the totality of the following grounds and conditions:

1) the conditionally convicted person has proven his correction (grounds) by his behavior;

2) he compensated fully or partially for the damage caused by the crime in the amount determined by the court decision;

3) at least half of the established probationary period has expired;

4) there is a proposal from the body exercising control over the behavior of the conditionally convicted person to cancel the conditional sentence;

5) the additional punishment must be served (clause 63 of the 2015 PPVS). At the same time, the convicted person’s criminal record is removed.

3. In case of behavior of a conditionally convicted person deviating from the court-prescribed behavior, the following decisions may be made:

1) the probationary period has been extended;

2) a decision has been made to revoke the suspended sentence and execute the punishment imposed by the court verdict;

3) all previous court decisions regarding probation were left unchanged.

4. Extension of the probationary period by the court is possible if the probationer has evaded the performance of the duties assigned to him by the court, has evaded compensation for damage (in whole or in part) caused by the crime in the amount determined by the court decision, or has committed a violation of public order, for which he was brought to administrative responsibility. Evasion of compensation for damage caused by a crime is also recognized as failure to compensate for such damage for unjustified reasons (Part 1 of Article 190 of the Penal Code).

The court makes such a decision on the proposal of the body exercising control over the behavior of the conditionally convicted person.

In this case, the probationary period can be extended by no more than one year.

5. Particular attention during the probationary period extended due to evasion of compensation for harm is paid to how the convicted person relates to the fulfillment of the same obligation: the obligation to compensate for harm caused by the crime in the amount determined by the court decision. If he systematically evades compensation for the specified harm, the court, upon the proposal of the body exercising control over the behavior of the conditionally convicted person, may make a decision to revoke the conditional sentence and execute the punishment imposed by the court verdict.

6. The court makes the same decision, upon the recommendation of the same body, even if the 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 from control.

The concepts of systematic violation of public order, systematic failure to fulfill the duties assigned to a person and concealment of a convicted person from control are given in Part. 5 and 6 tbsp. 190 PEC. Thus, 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. A conditionally convicted person whose location has not been established for more than 30 days is recognized as absconding from control.

7. If a conditionally convicted person has committed a crime during the probationary period, his fate in relation to the conditional sentence is decided by the court depending on what crime was committed. The suspended sentence may be revoked or maintained.

8. If the crime committed by a conditionally convicted person during the probationary period is considered careless or is an intentional crime of minor or medium gravity, the court has no obligation to revoke the conditional sentence, but it can do so, taking into account the behavior of the conditionally convicted person, as well as the nature and degree of public dangers of old and newly committed crimes.

When deciding on the possibility of canceling or maintaining a suspended sentence in relation to a person who has committed a new crime through negligence or an intentional crime of minor or moderate gravity during the probationary period, it is necessary to take into account the nature and degree of public danger of the first and second crimes, as well as information about the identity of the convicted person and his behavior during the probationary period. If necessary, to clarify such data, a representative of the body exercising control over the behavior of the conditionally convicted person may be called to the court hearing. Having established that the conditionally convicted person behaved negatively during the probationary period, did not fulfill the duties assigned to him, violated public order, etc., the court, by virtue of Part 4 of Art. 74 of the Criminal Code, may revoke the suspended sentence with the reasons for the decision made and impose punishment based on the totality of sentences.

9. 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 CC.

10. When the court makes a decision to cancel the suspended sentence in accordance with Part. 4 or 5 tbsp. 74 of the Criminal Code, punishment is imposed according to the rules provided for in Art. 70 of the Criminal Code, and in any case must be real (clause 66 of the PPVS 2015).

Assignment of punishment in case of revocation of suspended sentence

If a person commits a new crime and the suspended sentence is revoked, the punishment is imposed based on the totality of sentences (Article 70 of the Criminal Code of the Russian Federation): to the punishment imposed for the new crime, the court fully or partially adds the punishment imposed conditionally on the first sentence (Part 5 of Article 74 Criminal Code of the Russian Federation).

The rules established by parts 4, 5 of Art. 74 of the Criminal Code of the Russian Federation also apply if the crimes specified in these parts were committed before the sentence providing for a suspended sentence entered into legal force. In this case, trial of a new crime can take place only after the sentence providing for a suspended sentence has entered into legal force.

If it is established in relation to a conditionally convicted person that he is also guilty of another crime committed before the verdict in the first case, provided for in Art. 74 of the Criminal Code of the Russian Federation, the rules for canceling a suspended sentence cannot be applied.

In such cases, the sentences in the first and second cases are executed independently, on the basis of Part 5 of Art. 69 of the Criminal Code of the Russian Federation.