In this article we will talk about mechanisms that can help a convicted person be released from punishment ahead of schedule, or mitigate it. All these options are not related to appealing or challenging the verdict - they exist in parallel, regardless of the appeal.
So, even when all the appeal routes have been completed (and sometimes there are still unobvious possibilities, as described in the article What to do when there is nowhere else to appeal), other opportunities remain for release or mitigation. Here we will bring them all together.
Parole
Parole is regulated by Article 79 of the Criminal Code and Article 175 of the Penal Code. Parole requires several conditions:
- The harm caused by the crime must be compensated (and not necessarily completely);
- In fact, you need to serve 1/3 of the sentence for crimes of minor and moderate gravity, ½ for a serious crime, 2/3 for a particularly serious crime, or the same 2/3 if you previously violated parole.
But in any case, you need to serve at least six months.
For special categories of crimes you must serve ¾ of the sentence. These are crimes related to terrorism, drug trafficking and against the sexual integrity of minors. If the minor was under 14 years old, then he must serve 4/5 of the sentence.
The most important role in the issue of parole is played by the administration’s conclusion on the advisability of parole and the characteristics from the place of detention.
Thus, according to Part 4.1 of Article 79 of the Criminal Code, the court must take into account the behavior of the convicted person, his attitude to study and work during the entire period of serving the sentence (including pre-trial detention), rewards, incentives, penalties, the attitude of the convicted person to the committed act, compensation for harm and the conclusion of the administration correctional institution on the advisability of parole.
Obviously, almost everything depends on the administration - few people doubt that when necessary, it is not very difficult to give a convict both penalties and rewards. Well, issue an appropriate conclusion.
Let’s not forget the opinion of the victim, it also affects parole.
Separately, I note that according to Resolution of the Plenum of the Supreme Court of April 21, 2009 No. 8, when deciding on parole, it is prohibited to take into account any circumstances not specified in the law - including the danger of a crime (it is already taken into account in the sentence), criminal record (even outstanding) , non-admission of guilt (the most common demand of the administration, if he did not admit guilt, we will not give a conclusion).
In addition, if a convicted person was previously released on parole and violated the terms of parole, this is not a 100% basis for refusing a new parole.
How and where to write a petition?
This application should be submitted directly to the court itself . It can be sent by a lawyer or other legal representative of the convicted person in the place of deprivation of liberty in which the latter is serving his sentence.
Like parole, a petition to replace imprisonment with a more lenient form must be submitted exclusively through the administration of a given correctional institution.
What must be included in the application? It should contain the following:
- information about the exemplary behavior of the convicted person, confirming that he does not need to further serve his sentence;
- documentary evidence of compensation for damage caused;
- other information that indicates that the prisoner does not need to further serve his sentence.
If the prisoner cannot compensate for all the damage that he caused by his illegal actions (as a result of disability or congenital diseases, so he cannot work), then the court cannot refuse to accept the petition.
Directly to the petition itself should be attached a description of the prisoner, which is issued by the administration of the correctional institution. If they have not issued it, then the lawyer can file a petition without a reference.
Replacing punishment with a more lenient form
Regulated by Article 80 of the Criminal Code and Article 175 of the Penal Code.
The conditions are almost the same as for parole:
- compensation for damage (including partially),
- actual serving of 1/3 of the sentence for crimes of minor and medium gravity,
- ½ for a serious crime,
- 2/3 for especially serious cases,
- ¾ for special crimes specified in the previous paragraph (and 4/5 for crimes against the sexual integrity of children under 14 years of age).
There is no restriction on actually serving at least 6 months to commute the sentence.
The next formal difference from parole is that in Article 80 of the Criminal Code and 175 of the Penal Code there is no requirement for the administration’s conclusion on feasibility. But there is a requirement for the need for characteristics, which include all penalties and incentives, which, in turn, depend on the administration.
The circumstances when replacing a sentence are taken into account the same as for parole.
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All softening mechanisms in one palm
— below we have listed all the ways provided by law to mitigate criminal liability and punishment.
(Note to avoid confusion: here you can familiarize yourself with the mitigation mechanisms, but in addition to them there is a separate block not related to them, namely: Mitigating circumstances
, these are not mechanisms, but individual factors that can be used at any stage of the criminal process).
— no codes contain an exhaustive list of mitigation schemes, so we have compiled a single list, this is the most comprehensive selection of “peaceful” protection options. Peaceful, this means that they are not associated with the fight against the prosecution. Still, “military” defense options can be studied here: Significant violations
law, a list recognized by practice here:
9 judicial circles
of criminal proceedings, the entire range of appeals).
— absolutely all mitigation mechanisms provided by law are listed below, some of them will not suit you according to the category of crime (some mechanisms are not applicable to serious crimes
compositions).
- the other part - does not depend at all on the will of the convicted person, but can only be applied under the influence of external events (for example, Amnesty
).
- the value of this selection is that it frees you from the need to remember, sort through your memory “what else exists to mitigate?”, and so - look at the list below, and you can be sure that you will not miss any opportunity to mitigate.
Exemption from criminal liability
(Chapter of the Criminal Code)
| 1 | Active repentance , conditions and mechanism for termination of the case | 75 CC |
| 2 | Reconciliation with the victim , conditions and mechanism for termination of the case | 76 CC |
| 3 | Exemption for economic reasons trains | 76.1 CC |
| 4 | Judicial fine , conditions and mechanism for termination of the case | 76.2 CC |
| 5 | Limitation periods crimes, release due to their expiration | 78 Criminal Code |
Exemption from punishment
(Chapter of the Criminal Code)
| 1 | Change of scenery , the possibility of release from punishment | 80.1 CC |
| 2 | Exemption from punishment by disease, conditions and mechanism | 81 CC |
| 3 | Limitation periods sentences, release due to their expiration | 83 CC |
Deferment of punishment
| 1 | Postponement of execution sentence due to illness | 398 Code of Criminal Procedure |
| 2 | Deferment for parents until the child reaches 14 years of age | 82 CC |
| 3 | Postponement due to threat grave consequences in accordance with the norm | 398 Code of Criminal Procedure |
| 4 | Deferment for patients drug addiction | 82.1 CC |
| 5 | Installment plan for criminal fine, practical recommendations | 398 Code of Criminal Procedure |
Remission of punishment after conviction
| 1 | Parole liberation | 79 Criminal Code |
| 2 | Substitution of punishment softer look | Part 1 80 Criminal Code |
| 3 | Replacement with forced ones work | Part 2 80 Criminal Code |
| 4 | Changing the view institutions (over-regime) | 78 PEC |
| 5 | Early withdrawal criminal record after serving a sentence | Part 5 86 Criminal Code |
Other mechanisms
We have listed these four mitigation methods in a separate list for this reason: they are not independent.
- that is: they can be asked for, for example, in a cassation appeal, but only among other arguments. But if you file a cassation appeal, in which there will only be a request to impose a punishment below the sanction of article ( 64 of the Criminal Code
) then such a complaint will not work.
You also cannot submit a separate independent application to reduce the category of the crime ( Part 6 15 of the Criminal Code
), usually this is simply pointless.
All four methods below are applied only through the mechanisms of appealing
the verdict.
| 1 | Change category crimes | Part 6 15 of the Criminal Code |
| 2 | Insignificance crimes, possibilities of termination of the case | Part 2 14 Criminal Code |
| 3 | Punishment below the lowest sanction provided for in an article of the Criminal Code | 64 CC |
| 4 | Conditional sentence , all aspects | 73 CC |
Mechanisms independent of the actions of the convicted person
These two methods of mitigation do not depend in any way on the will of the convicted person; he does not have the opportunity to influence them in any way through his actions. Whether there will be a relaxation of the law or an amnesty depends only on a lucky chance.
| 1 | Law changes mitigating the situation of the convicted person | Part 1 10 Criminal Code |
| 2 | Amnesty when can we expect it, who might it affect? | 84 Criminal Code |
Note
: There is another mitigation mechanism, but we didn't even include it in the list.
We are talking about pardon
. Why doesn't this mechanism have a place here? Because here we have listed real mitigations, that is, those that work in reality. And the pardon mechanism is intended exclusively to resolve political issues. There is simply no chance for an ordinary convict to receive a pardon).
In parallel with the mitigation mechanisms, it is possible to appeal the verdict
| Please note that most mitigation mechanisms are resolved through issues related to the execution of the sentence (397 Code of Criminal Procedure ). And these questions are completely parallel to the appeal mechanisms sentence. — we emphasize that these two mechanisms are precisely parallel to each other (that is, they do not intersect and are absolutely unrelated to each other), since documents are submitted to different authorities: Url Additional information: — 396 Code of Criminal Procedure courts resolving issues regarding the execution of a sentence A) on b) complaints in order to appeal a verdict are filed in other courts: courts - the court responsible for the second mechanism is not notified in any way that you have used one of these two mechanisms. - therefore, the following check makes sense to see if another mitigation option can be used: I). Checking whether you have completed all stages of appeal — check whether you have completed all stages of appeal; there are nine judicial stages in total. - you can check this using a special table, which clearly shows the entire appeal ladder, you can find it here: 9 judicial circles all stages of the criminal process, from first instance to revision due to new circumstances. Url Additional information: I). District Court of Cassation 1st stage of cassation: to the cassation court general jurisdiction ( II). Supreme Court II stage of cassation: to the Judicial Collegium of the Supreme Court ( clause 2, part 1 401.3 of the Code of Criminal Procedure ) III). Chairman of the Supreme Council III stage of cassation: To the Chairman of the Supreme Court ( Part 5 401.10 of the Code of Criminal Procedure ) — in particular, you need to check whether all three available attempts cassation. - sometimes it turns out that the convicted person does not realize the difference between these stages, and in fact, not all attempts have been exhausted. — therefore, we recommend studying this three-tier structure here: Three steps cassation, their features and specificity. II). If the entire appeal process has been completed Url Additional information: Exhaustion all attempts to appeal - how to go beyond these limits - if the entire line of appeal has been completed, then you can resort to one of the options for going beyond the stages of appeal, they are outside the framework of the criminal process, they cannot be found directly in the norms, but they exist, and in the circumstances of your case there may be loopholes for one of these ways. A selection of these methods can be found here: Exit methods beyond the limits outlined by the Code of Criminal Procedure. |
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A new type of punishment replacement - replacement with forced labor
This type of replacement was introduced by amendments to Article 80 of the Criminal Code (they are also mistakenly considered amendments to parole, see more details here). It is also often mistakenly called “replacing punishment with correctional labor.”
According to the amendments, imprisonment can be replaced by forced labor, and the time frame for such a replacement is significantly reduced. Shortened terms are valid only for replacement with forced labor; other types of punishment cannot be served under these shortened terms.
So, for crimes of minor and moderate gravity you need to serve 1/4 of the term, for serious crimes you need to serve 1/3 of the term, for especially serious crimes you need to serve half of the term.
Interesting amendments, because according to Article 53.1 of the Criminal Code, forced labor cannot be obtained for especially serious crimes, but now it is possible in the form of a substitute for punishment. True, in this case the usual limitation for forced labor does not apply - a maximum of five years. In the form of replacing the punishment with forced labor, you can “leave” for a period of more than five years.
Everything else for this type (conditions and procedure) is the same as in other cases specified in Article 80 of the Criminal Code.
Conditions of use
According to Article 80 of the Criminal Code of the Russian Federation, replacing an unserved term of imprisonment with a more lenient punishment is applicable in the following cases:
- in case of restriction of freedom or deprivation of it;
- if the guilty person is serving his sentence directly in a specialized military unit;
- when performing mandatory work.
A prisoner who has been given a life sentence does not have the right to change the imprisonment to a more lenient penalty, but he can petition to change the imprisonment regime directly to another, more lenient type.
Replacing the unserved part of the sentence with a more lenient one is applicable when the prisoner has already served for:
- offenses of moderate or minor gravity - 1/3 of the total term;
- serious offenses - ½ part;
- crimes of special gravity - 2/3 parts;
- sexual offenses against minors - ¾ parts;
- sexual crimes against minors (under 14 years of age) - 4/5 parts.
If a prisoner has already served his sentence and demonstrates good behavior, what commutation is he entitled to?
Then the punishment awarded to him can be changed to:
- Payment of penalties (in this case, installments of up to three years are allowed). However, if the court decides that a lump sum payment is necessary, the fine will have to be paid in full for one month).
- Assign forced labor.
- They may be prohibited from holding certain positions or engaging in certain activities.
- In the case of military cases, the prisoner may be subject to certain restrictions regarding military service, or transferred to a specialized military unit.
- Make an arrest.
Judicial practice shows that, as a rule, the punishment imposed by the court can be replaced either by correctional labor or restriction of freedom, since other methods of imposing even milder punishments are considered inappropriate.
It is worth noting that when replacing the unserved part of a sentence with correctional labor, a maximum number of hours can be assigned: 240, while it is allowed to work no more than four hours a day, which means six months of forced labor.
If the convicted person deliberately avoids performing compulsory work in every possible way, the punishment may be changed to imprisonment. In this case, 8 hours of forced labor equals one day of imprisonment.
Thus, the maximum punishment for correctional labor (240 hours) is equal to only 1 month of imprisonment.
So, we come to a logical conclusion: changing prison sentences to forced labor is inappropriate, since the latter penalty is disproportionately lenient.
It is also rare to replace the unserved part of a sentence with a fine . As a rule, this is justified by the fact that the vast majority of prisoners are not rich. They simply will not be able to immediately pay off the entire fine immediately after their release.
Changing the type of correctional institution (re-regime)
The overtime is regulated by Article 78 of the Criminal Code. It is also carried out by the court and the procedure is the same as for parole and commutation of punishment. The conditions and procedure are the same. But different deadlines.
- You can transfer from prison to a correctional colony after serving ½ of your sentence;
- from a special regime correctional colony to a strict regime correctional colony - after serving ½ of the term;
- from general regime correctional colonies to a settlement colony - after serving ¼ of the sentence by convicts in light conditions of detention;
- from high-security correctional colonies to a settlement colony - after serving 1/3 of the term;
- if parole was previously violated - after serving half the term,
- convicted of committing especially serious crimes - after serving 2/3 of the term
Replacing part of the punishment. Concept
Russian legislation, as an incentive for convicts who comply with the standards of being incarcerated in a correctional institution, and who have proven by their behavior that they can correct their behavior and attitude towards others without applying harsh penalties to them, is given the opportunity to replace the unserved part of the punishment with a more lenient punishment. This can only be attributed to those sentences that those actually partially guilty of committing criminal acts have already served.
That is, when the punishment imposed by a court verdict for a crime committed is carried out. The criminal law allows the replacement of the unserved part of the sentence with a milder type of punishment only in cases where, by a court verdict, the convicted person is sentenced to restriction of freedom or, for military personnel, to detention in a disciplinary military unit for a certain period.
Replacement of the unserved part of the sentence with a more lenient type of punishment can only be by court decision. It is important that the law does not have retroactive force. If a person for whom the remainder of the unserved sentence was replaced with a more lenient punishment, during this period committed a new criminal act against people or society, then:
- To the punishment imposed for a new crime, a part of the unserved punishment will be added in a milder form, and not the one originally assigned.
