1. When assigning punishment for a recidivism, dangerous recidivism or especially dangerous recidivism of crimes, the nature and degree of public danger of previously committed crimes, the circumstances due to which the corrective effect of the previous punishment turned out to be insufficient, as well as the nature and degree of public danger of newly committed crimes are taken into account.
2. The term of punishment for any type of recidivism of crimes cannot be less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the sanction of the relevant article of the Special Part of this Code.
3. In case of any type of recidivism of crimes, if the court has established mitigating circumstances provided for in an article of this Code, the term of punishment may be assigned less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the sanction of the relevant article of the Special Part of this Code , and in the presence of exceptional circumstances provided for in an article of this Code, a more lenient punishment than provided for this crime may be imposed.
- Article 67. Imposition of punishment for a crime committed in complicity
- Article 69. Imposition of punishment for a combination of crimes
Commentary to Art. 68 of the Criminal Code of the Russian Federation
The Criminal Code of the Russian Federation establishes that a person convicted of committing a crime is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed; a criminal record in accordance with the Criminal Code of the Russian Federation is a necessary condition for recognizing a recidivism of a crime and is taken into account when assigning punishment (Part 1 of Article 86).
A criminal record, therefore, represents the legal status of a person, conditioned by the fact of conviction and sentencing to him by a court verdict for a crime committed and entailing the legal consequences established by criminal law if this person commits a crime again; an outstanding or unexpunged criminal record that a person has gives rise to special public legal relations with the state that are formed on the basis of criminal law regulation, which, when this person commits new crimes, serve as the basis for assessing his personality and the crimes he has committed as having an increased public danger and therefore presupposes application of more stringent criminal liability measures to him.
Allowing by virtue of Part 3 of Art. 55 of the Constitution of the Russian Federation in relation to persons with a criminal record, the possibility of establishing by federal law certain additional burdens that remain for a reasonable period of time after they have served their criminal sentence, which are determined, among other things, by the public danger of such persons, are adequate to it and are associated with the obligation to bear responsibility for guilty behavior The Constitution of the Russian Federation, at the same time, requires unconditional compliance with the guarantees of the individual it provides and is based on the need to ensure the fairness of the relevant restrictions and their proportionality to the protected constitutional values. This presupposes the establishment of public legal liability only for a guilty act and its differentiation depending on the severity of the act, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine the individualization of punishment.
———————————
See: Resolution of the Constitutional Court of the Russian Federation of March 19, 2003 N 3-P // Bulletin of the Constitutional Court of the Russian Federation. 2003. N 3.
One of the criminal legal means of individualizing punishment is the rules for assigning punishment for repeat crimes. The law provides for the establishment of recidivism of crimes in relation to persons who have not taken the path of correction and again, during or after serving their sentence, committed a new intentional crime. The conditions for recognizing a type of relapse are defined in Art. 18 of the Criminal Code of the Russian Federation, which also states that recidivism of crimes entails a more severe punishment (Part 5 of Article 18 of the Criminal Code of the Russian Federation).
The procedure for imposing punishment for repeat crimes is established in Art. 68 of the Criminal Code of the Russian Federation. When assigning punishment for recidivism, the court, for any type of recidivism, must take into account the nature and degree of social danger of previously committed crimes and the circumstances in which the previously imposed punishment was not enough to correct the convicted person. The court must also take into account the nature and degree of public danger of the newly committed crime.
The legislator provided for the possibility of imposing a more severe punishment in case of recidivism and determined that, as a general rule, it should not be less than one third of the maximum term of the most severe type of punishment for any type of recidivism. At the same time, this punishment must be imposed within the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation.
This means that, for example, in the event of a dangerous relapse of crimes for committing a crime under Part 4 of Art. 158 of the Criminal Code of the Russian Federation, the punishment of the convicted person can be assigned to at least three years and four months of imprisonment, but it must be assigned to at least five years, since the punishment under Part 4 of Art. 158 of the Criminal Code of the Russian Federation in the form of imprisonment is prescribed from five to ten years.
When assigning punishment to a person who has committed several crimes as a repeat offender, dangerous repeat offender or especially dangerous repeat offender, convictions that have not been expunged or expunged at the time of the crime are taken into account. Punishment in this case is assigned for each crime, taking into account the rules set out in Part 2 of Art. 68 of the Criminal Code of the Russian Federation, if there are no grounds for its non-application due to part three of the same article, and the final punishment for a set of crimes or a set of sentences is in accordance with Art. Art. 69 or 70 of the Criminal Code of the Russian Federation.
In Part 3 of Art. 68 of the Criminal Code of the Russian Federation provides for two circumstances, in the presence of which punishment for recidivism of crimes can be imposed within less limits than established by Part 2 of this article, i.e. less than one third of the maximum term of the most severe type of punishment provided for the crime committed.
The first such circumstance is the establishment of mitigating circumstances provided for in Art. 61 of the Criminal Code of the Russian Federation. In this case, the punishment may be imposed less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation. For example, according to Part 2 of Art. 161 of the Criminal Code of the Russian Federation provides for punishment in the form of imprisonment from two to seven years. One third of seven years is two years and four months, therefore, under general conditions, the court cannot assign less than the specified period in case of recidivism. However, when establishing mitigating circumstances provided for in Art. 61 of the Criminal Code of the Russian Federation, the punishment may be less than two years and four months, but cannot be less than two years.
The second factor that makes it possible to reduce the punishment for repeat crimes is the presence of exceptional circumstances provided for in Art. 64 of the Criminal Code of the Russian Federation. If such are established by the court, then in the same example about the crime provided for in Part 2 of Art. 161 of the Criminal Code of the Russian Federation in case of recidivism of crimes, a punishment of less than two years of imprisonment may be imposed.
In Art. 68 of the Criminal Code of the Russian Federation indicates only two given circumstances that provide the court with the opportunity to impose a punishment of less than one third of the maximum severe punishment provided for this crime. In fact, the provisions of other provisions of the Criminal Code of the Russian Federation can lead to the same consequences. For example, for committing robbery on a large scale, a punishment of imprisonment for a term of seven to twelve years is provided. In case of any type of recidivism, in the absence of mitigating and exceptional circumstances, the punishment cannot be less than four years of imprisonment, but taking into account the limits established by the sanction of the article of the Special Part of the Criminal Code of the Russian Federation - seven years of imprisonment. If the act is qualified as preparation for the specified robbery, the punishment should not exceed half of the maximum sentence, i.e. it must not exceed six years of imprisonment. Thus, in this case, as well as in a number of situations where there is a jury verdict of leniency, punishment for recidivism of crimes, in addition to the cases established by Part 3 of Art. 68 of the Criminal Code of the Russian Federation may go beyond the sanction of the article of the Special Part of the Criminal Code of the Russian Federation.
It seems that another issue regarding the imposition of punishment for recidivism of crimes has not been resolved legislatively, namely: from the maximum period (amount) established by the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, the necessary part should be calculated for an unfinished crime and in other cases when the law establishes restrictions when assigning punishment, or should one third be calculated from the period determined taking into account the stage of the crime, etc.? So, if we take the given example of robbery on a large scale, one third, below which a punishment cannot be imposed in case of repeat crimes, can be four years of imprisonment (without taking into account the stage of commission of the crime) or two years of imprisonment in preparation for the specified robbery. From our point of view, the latter decision seems to be more correct, since it most fully meets the principle of justice and the rules of sentencing for repeat crimes.
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List of materials on punishment
Taking into account recidivism when sentencing
Here is a complete regulatory framework on recidivism issues, as well as general materials. For those who want to understand all the intricacies at a professional level, special material is here: How to find an error
court when assigning punishment for recidivism.
| Normative base — 18 CC relapse: simple, dangerous, especially dangerous - paragraph 44 Plenum No. 58 rules for determining recidivism and application of — Clause 2 Part 1 220 Code of Criminal Procedure identification information in the indictment — clause 14 Plenum No. 28 failure to indicate a criminal record in custody, return of the case - paragraph 46 Plenum No. 58 if the investigator did not indicate a relapse, it does not matter Recidivism in the sentence - clause 4 304 Code of Criminal Procedure information about criminal record and recidivism in the water part of the sentence — clause 2 Plenum No. 55 indication of relapse in the sentence — - paragraph 46 Plenum No. 58 the sentence must indicate the type of recidivism — clause 13 Plenum No. 9, an indication of relapse in the sentence is mandatory Taking into account recidivism when sentencing — Part 5 18 Criminal Code more severe punishment for repeat offenders — clause "a" part 1 63 of the Criminal Code relapse is an aggravating circumstance — Part 2 68 Criminal Code in case of relapse, the sentence is not less than 1/3 - clause "c" part 1 73 of the Criminal Code if the relapse is dangerous, then probation is not assigned - P. Plenum No. 1 undesirability of a suspended sentence in case of relapse - paragraph 47 Plenum No. 58 features of sentencing for recidivism Special order — clause 14 Plenum No. 60 accounting for relapse under a special procedure Relapse is recorded on the date of occurrence - paragraph 44 Plenum No. 58, criminal records for recidivism are taken into account on the date of the crime — clause 13 Plenum No. 9 criminal record for recidivism, registration at the time of commission Accounting by date of commission Expungement of a criminal record does not play any role during the investigation Punishment for relapse How is it prescribed? punishment in case of relapse, all aggravating consequences Extenuating circumstances Neutralization of relapse with the help of mitigating circumstances ( Probation for reoffending Conditional sentence in case of relapse it is quite possible if the relapse is simple Recidivism and criminal record Criminal record and relapse , two similar mechanisms, what are their differences ERROR in the verdict Incorrect accounting recidivism, contrary to |
Relapse
and
criminal record
are closely related concepts. Both are the consequences of a conviction, for which at least some punishment is imposed.
Criminal record
is a broader concept. This is a kind of stigma on the convicted person, which hangs on him for a certain period after serving his sentence and creates certain problems for him in different areas of life.
Relapse
– this is a narrower concept and it is taken into account only when assigning punishment. If there is a relapse, the punishment will always be harsher, this is the essence of relapse.
In my own words: relapse is a conditional mark in the case, which says that this accused is more unreliable compared to his “colleagues”. This means that he had already been prosecuted before, and for an intentional crime, but at the same time he did not correct himself, did not wait for the first conviction to pass, but again “got caught.” And therefore, since he is such a malicious element, he needs to be given a more serious sentence.
Well, if according to science: then relapse is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime ( 18 of the Criminal Code
)
In other words, a criminal record is a consequence of a conviction (for which there was at least some punishment) for everyone who was not lucky enough to get into court as a defendant. And relapse is for those who are especially “inveterate.” Those who were unable to calmly “overcome” their first conviction are labeled a repeat offender (“they gave you time to sit quietly, but you couldn’t, so that’s your incorrigible criminal essence”).
To put it more clearly: a criminal record is the first step “on the path to success,” and relapse is the next step.
Types of relapse
A criminal record is always the same (except that its terms are different), and there are three types of recidivism according to the degree of danger (and it is not calculated by terms - it either exists or it does not):
Let’s just note that the more serious the new crime committed, the more dangerous the relapse. Crimes of minor gravity are not taken into account for recidivism purposes - for example, you can get under 116 of the Criminal Code
(beatings) – you still won’t become a repeat offender.
This is the logic in the Criminal Code - without becoming a repeat offender, you can regularly walk down the street and “distribute lyuli” to all passers-by, or you can get caught with drugs a second time ( 228 of the Criminal Code
) – and that’s it, here he is, a ready-made repeat offender.
The topic of correctly determining the type of relapse is very important - this is where errors in sentences often occur. For example, the judge considered relapse to be correct, but forgot that the convict had a “condition” on his first conviction - this is a 100% change in the sentence with a reduction in the punishment. (You can read more about this here: Erroneous accounting
recidivism, contrary to
Part 4 of 18 of the Criminal Code
in the introductory part of the sentence).
Assignment of punishment for relapse
— in this table we list all the negative consequences of relapse:
| I | A minimum of 1/3 of the maximum term is assigned Url Additional information: — Part 2 68 Criminal Code in case of relapse, the sentence is not less than 1/3 — first consequence : provided for by norm — most articles of the Criminal Code establish a maximum and minimum sentence, and a “good judge” can assign a minimum term. But if there is a relapse, this minimum period automatically increases by 1/3. - example: maximum term under Article Part 3 158 of the Criminal Code is 6 years, and the judge has no right to impose less than 2 years of imprisonment. To express the whole point as briefly as possible: the minimum threshold of punishment is “iron” and under no circumstances can the term be less than this threshold. COMPLEX mechanism But the mechanism for assigning punishment for recidivism is extremely difficult to understand. Wording in Part 3 of 68 Criminal Code are presented in such a way that it is simply impossible to understand without special explanations. For those who want to understand it on a professional level, there is special material here: Features of the purpose punishment for relapse. |
| II | Only the most severe type of punishment is assigned Url Additional information: - paragraph 47 Plenum No. 58 features of sentencing for recidivism — second consequence : provided for in paragraph - example: sanction of Article Part 3 158 of the Criminal Code contains three types of punishment. But in case of relapse, the judge is deprived of the right to choose the type of punishment; he has the right to impose only imprisonment, but not a fine or forced labor. |
| III | Aggravating circumstance Recidivism is an aggravating circumstance ( clause “a” part 1 63 of the Criminal Code ), this is its important difference from a criminal record. And if there is at least one aggravating element in the case, then it not only in itself has an unpleasant effect on the amount of punishment, but also interferes with the use of mitigating mechanisms. So, there is the most common mechanism for reducing punishment ( Part 1 62 of the Criminal Code ) - when some particularly strong emollients reduce the maximum provided for in the article by 1/2 or 1/3. But, in the presence of any aggravating factor (including relapse), this mechanism is not applied, and this has a significant impact on the final punishment. |
| IV | Impossibility of probation If relapse is dangerous – then a suspended sentence is impossible ( There is no such categorical prohibition for a simple relapse. But this is strictly formal. But in fact, the “condition” is also practically impossible. Even just a criminal record suggests that one can only dream of a “condition” ( p. Plenum No. 1). And relapse, as we discussed above, is, in essence, such a thing for those who are especially malicious. It is worth noting that it is still possible to deal with all these unpleasant consequences of relapse, although it is difficult. Let's look at the features of using the mechanism - Punishment below lower, the possibility of applying norm |
Where does recidivism appear in the case materials?
In the indictment
:
— Clause 2 Part 1 220 Code of Criminal Procedure
– where information about the identity of the accused is indicated.
By the way, there is an important technical difference - failure to indicate a criminal record in the conclusion means the return of the case to the prosecutor ( clause 14
of Plenum No. 28);
and failure to indicate a relapse does not mean anything; it should be determined by the court, not the investigator ( clause 46
of Plenum No. 58).
In the verdict
:
— clause 4 304 Code of Criminal Procedure
information about a criminal record of recidivism, as well as a criminal record, is indicated in the introductory part of the sentence.
— paragraph 46
Plenum No. 58 and
clause 13
of Plenum No. 9 - the sentence must indicate the type of relapse.
Neutralization of relapse
| I). Use of emollients | Use of emollients Everything is not easy here, there is an “iron” rule, Part 2 68 of the Criminal Code (punishment for relapse cannot be assigned below 1/3 of the maximum term. But in a certain situation, it can be influenced. This is possible: if 1/3 of the maximum is more than the minimum sanction ( Part 3 68 of the Criminal Code and It's complicated, but let's figure it out: We read in part 3 68 of the Criminal Code “ ". What does it mean ? Here we see the opposite situation (in relation to the one discussed above). For some articles, 1/3 of the maximum will be more than the minimum sanction. Example: Part 2 228 of the Criminal Code . Punishment for this crime: from 3 to 10 years: - here 1/3 of the maximum will be 3 years 4 months. — and the minimum sanction is 3 years. And on such articles the Supreme Court explains in paragraph 48 Plenum No. 58, if 1/3 of the maximum is more than the minimum sanction, then you can ignore the rule of Url Additional information: - paragraph 48 Plenum No. 58 in case of relapse, mitigating agents from Optional emollients circumstances mentioned in Plenum No. 58), that is, even TOTAL: if 1/3 of the maximum is above the minimum threshold, then in this interval the court can decide for itself what period to assign, depending on mitigating circumstances. But the minimum threshold for a special article of the Criminal Code remains “iron”. You cannot assign below it. |
| II). Use of Article 64 of the Criminal Code | Using the article 64 CC Url Additional information: - Part 3 68 Criminal Code if there are circumstances - paragraph 47 Plenum No. 58, the appointment of a less strict one in case of relapse under Plenum No. 58 mentions the possibility of applying , there are also encouraging moments: in - these sources say that the negative impact of relapse can be overcome by Article 64 of the Criminal Code . - but in this case, the requirements are stricter, the presence of exceptional circumstances is necessary (more information about the application of the mechanism of this norm can be read here: Punishment below inferior). |
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Judicial practice under Article 68 of the Criminal Code of the Russian Federation
Resolution of the Presidium of the Supreme Court of the Russian Federation dated June 14, 2017 N 85P17
In the supervisory appeal, the convicted Kiriyenko asks for a mitigation of punishment due to the fact that the court unreasonably recognized his actions as a dangerous recidivism of crimes and imposed a punishment according to the rules of Art. The Criminal Code of the Russian Federation, leaving without attention that the previous conviction was when he was a minor and it cannot be taken into account when recognizing a recidivism.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 4, 2017 N 72-APU17-21
- September 14, 2011 by the Khiloksky District Court of the Trans-Baikal Territory under Art. 316 of the Criminal Code of the Russian Federation using Part 2 of Art. of the Criminal Code of the Russian Federation to 10 months 18 days of imprisonment with serving the sentence in a maximum security correctional colony, convicted of:
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 10, 2018 N 44-UD18-8
according to the verdict of the Kungur City Court dated September 26, 2000, the indication that Khlyzov had V.N. was excluded from the introductory part. criminal records based on sentences dated April 24, 1997 and April 10, 1998, it was decided to consider him convicted under paragraph “c” of Part 3 of Art. 162 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 63-FZ of June 13, 1996), on the basis of Part 2 of Art. of the Criminal Code of the Russian Federation to 12 years in prison, in accordance with Part 5 of Art. of the Criminal Code of the Russian Federation to 15 years of imprisonment in a special regime correctional colony; the qualifying sign of committing a crime “repeatedly” has been excluded, as well as an indication of the application of additional punishment in the form of confiscation of property.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06.06.2018 N 72-APU18-6
Since Selin O.G. We have previously been convicted, served a sentence in places of deprivation of liberty for committing an intentional especially grave crime, provided for in paragraphs “c”, “d”, part 2 of Art. 162 of the Criminal Code of the Russian Federation (robbery with illegal entry into premises, with the use of objects used as weapons), the criminal record in the manner prescribed by law was not expunged and not expunged, and again committed a particularly serious crime on January 13, 2021, the court was lawful, in accordance with clause "b" part 3 art. The Criminal Code of the Russian Federation saw in his actions a particularly dangerous relapse of crimes and sentenced him using the provisions of Part 2 of Art. Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 20, 2018 N 19-APU18-9
Meanwhile, all the circumstances influencing the degree of responsibility of the perpetrators were subject to consideration and assessment in their totality and allowed the court to appoint Demchenko G.T. and Didenko A.P. not such a severe punishment for the totality of crimes, especially since the aggravating circumstance that exists in the actions of each of them is fully reflected in accordance with the rules of Part 1, Part 2 of Art. of the Criminal Code of the Russian Federation on the amount of punishment imposed by it for each of the crimes, and also influenced the type of correctional institution.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 53-APU18-7
He asks to cancel the verdict, conduct a re-examination, apply Art. Art. , , , and part 3 art. of the Criminal Code of the Russian Federation, reclassify his actions in relation to A. under Art. 115 of the Criminal Code of the Russian Federation, and actions against B. are excluded from the sentence.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 28, 2018 N 20-APU18-4
Believes that the court unreasonably did not apply the provisions of Part 3 of Art. and Art. of the Criminal Code of the Russian Federation, violated enshrined in Art. Criminal Code of the Russian Federation, art. 383 of the Code of Criminal Procedure of the Russian Federation the principle of fairness of punishment. He asks to change the sentence, to soften the sentence assigned to Z.A. Aliskantov. punishment using the provisions of Art. Criminal Code of the Russian Federation.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 23, 2018 N 46-O18-1
In the cassation submission, state prosecutor I.A. Klementyeva, without challenging the correctness of the factual circumstances of the case established by the court, indicates that the court, when sentencing Nikolaev A.V. did not take into account the presence in his actions of a dangerous relapse of crimes and, when determining his punishment for the theft of property from L., imposed a less severe punishment than provided for in Part 2 of Art. The Criminal Code of the Russian Federation, in connection with which it asks that the verdict against Nikolaev be canceled and the case sent for a new trial.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 11, 2018 N 32-APU18-9
in the appeal and additions to it, the convicted Kandaurov A.V., expressing disagreement with the verdict, believes that the court unreasonably did not take into account his arguments about the absence of a preliminary agreement between him and Kovalev to kill U. He believes that the court formally took into account mitigating punishment circumstances and the wrong punishment was imposed, and the court did not discuss the possibility of applying the provisions of Art. Criminal Code of the Russian Federation. When imposing punishment under Part 2 of Art. 105 of the Criminal Code of the Russian Federation does not take into account the provisions of Part 3 of Art. Criminal Code of the Russian Federation. He considers it incorrect to impose a sentence on him, taking into account his previous conviction, since the conviction under the verdict of October 2, 2001 was expunged at the time of this verdict. His petition to bring the sentence of October 2, 2001 into line with the amendments made by the Federal Law on December 7, 2011 was unreasonably rejected. Requests to change the sentence, using the provisions of Art. , the Criminal Code of the Russian Federation and changing the type of punishment serving regime to strict.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 6, 2018 N 80-APU18-6
Taking into account the established mitigating circumstances: active assistance in solving the crime, his actual admission of guilt, state of health, the court had grounds to apply the provisions of Part 3 of Art. of the Criminal Code of the Russian Federation and assign him a less severe punishment. In objection to the appeals, state prosecutor Levanov O.V. considers the verdict legal, reasonable and fair and asks that it be left unchanged, the appeals - without satisfaction.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 09/05/2018 N 5-APU18-41
- convicted Gulyaev B.V. expresses disagreement with the verdict. Draws attention to the fact that in the introductory part of the verdict the court incorrectly indicated the lack of permanent residence and work, as well as the criminal record dated July 30, 2009, which was expunged. According to the convicted person, the verdict contains no arguments confirming the impossibility of imposing punishment according to the rules of Art. Criminal Code of the Russian Federation. He claims that T. was convicted unfoundedly for attempted murder; he had no intent to kill this person. He asks that the conviction under Part 3 of Art. , paragraphs “c”, “z”, part 2, art. 105 of the Criminal Code of the Russian Federation and mitigate the imposed punishment;
Some problematic issues of sentencing for recidivism
This article examines the problems of assigning punishment for recidivism of crimes with a jury verdict of leniency, as well as for recidivism of crimes interrupted at the stage of preparation or attempt. Various approaches to resolving existing difficulties and the author's position on the issue under consideration are presented.
Key words:
recidivism of crimes, sentencing, jury verdict, preparation for a crime, attempted crime.
The institution of recidivism has been known for a long time, and hardly anyone doubts the necessity of its existence. At the same time, some researchers express the opinion that the application of the provisions of the Criminal Code of the Russian Federation on recidivism entails the imposition of, although formally legal, but unfair punishments [6, p. 18–19].
Recidivism of crimes is undoubtedly the most socially dangerous type of multiplicity of crimes [2, p. 13]. This is due, first of all, to the fact that a person commits an intentional crime after being convicted of a previously committed intentional crime. Consequently, the punishment applied to such a person should be more severe than the punishment imposed on a person who has committed a crime for the first time. At the same time, insufficient development in criminal legislation and law enforcement practice of the specifics of sentencing for recidivism often entails a distortion of the above approach, a violation of fundamental criminal law principles and, as a consequence, nihilism of society in the field of protecting law-protected interests.
In particular, the issue of the rules for assigning punishment when a jury verdicts on leniency in relation to persons whose actions are recognized as recidivism has not been sufficiently developed.
It seems that the legislator initially established a rule that contradicted the principles of criminal liability in general and the principle of justice in particular, and placed defendants in unequal conditions, depending on the legal procedure. When deciding on leniency, the jury takes into account the circumstances of the case and, only to a small extent, information about the personality of the defendant. However, neither the principles of sentencing nor the general principles of sentencing contain provisions according to which preference in assessing the various circumstances taken into account when sentencing should be given to any of them: be it the circumstances of the crime or personal data. Without complete information about the identity of the perpetrator, including his previous convictions, it is difficult to comprehensively and objectively assess the need and possibility of mitigating the imposed punishment. According to I. N. Samylina, “issues related to the imposition of punishment should be decided by the judge, Art. 65 in the current version should be excluded from the Criminal Code of the Russian Federation” [5, p. 29].
In addition, the practical aspect of the issue under consideration is also related to the calculation and ratio of the shares of the terms of the final punishment for a person who has repeatedly committed a crime, in the presence of a jury verdict of leniency. In accordance with Part 1 of Art. 65 of the Criminal Code of the Russian Federation, the term or amount of punishment for a person who, in the opinion of the jury, deserves leniency cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed. The question arises about the relationship between these requirements and the provisions of Part 2 of Art. 68 of the Criminal Code of the Russian Federation. Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007. No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation” (as amended by Resolutions dated April 3, 2008 No. 5; October 29, 2009 No. 21) [4] also does not contain recommendations for resolving such situations. In this connection, some researchers suggest using the recommendations of the Resolution in relation to similar situations: consistent application of the norms [7]. First, the maximum possible amount of punishment is determined, taking into account the jury’s verdict of leniency (two-thirds of the maximum amount of the most severe punishment provided for the crime committed), then, based on the resulting amount of punishment, the term or amount of punishment is calculated, below which no punishment can be imposed in case of repeat crimes (one third of two thirds).
This position is highly controversial. Firstly, in accordance with the principle of legality, the application of criminal law by analogy is not allowed. Resolutions of the Plenums of the Supreme Court of the Russian Federation are acts of interpretation and clarification of the norms of the Criminal Code of the Russian Federation. Accordingly, this approach is possible only if it is enshrined in law, as was done within the framework of Part 3 of Art. 65 of the Criminal Code of the Russian Federation in relation to the imposition of punishment for a set of crimes/sentences, and is explained accordingly within the framework of the above-mentioned resolution. Secondly, the application of the proposed option for calculating the final punishment in practice will lead to unfounded humanization and an excessively low level of responsibility for repeat offenders. So, in the case of committing the same qualified robbery (Part 3 of Article 162), the final punishment will be 2.7 years of imprisonment (with a minimum limit of 7 years). Whatever the circumstances that underlie the jury’s verdict of leniency, a repeat offender is, by all characteristics, more socially dangerous than a person who commits a crime for the first time, and therefore situations where the lower limit of punishment for a person repeatedly convicted is 2–3 times less than for a first-time offender convicted, seem unacceptable from the point of view of the principles of justice and humanism.
In addition, the situation under consideration contains another paradox. Part 4 art. 65 indicates that “when assigning a punishment to a person found guilty of committing a crime by a jury verdict, but deserving leniency, aggravating circumstances are not taken into account.” At the same time, according to the current criminal law, relapse is one of such aggravating circumstances (clause “a”, part 1, article 63 of the Criminal Code of the Russian Federation). Thus, the above difficulties, in accordance with the letter of the law, are generally leveled out.
Summarizing the above, the position of the legislator seems not only inconsistent with the fundamental principles, but aimed at encouraging recidivism.
Recidivism can result from crimes interrupted at the stage of preparation or attempt. In accordance with Article 66 of the Criminal Code of the Russian Federation, the term or amount of punishment for preparation for a crime cannot exceed half, and for an attempted crime - three quarters of the maximum term or amount of the most severe type of punishment provided for by the corresponding article of the Special Part of the Criminal Code for the completed crime. How should punishment be imposed if in fact there are grounds for applying both Article 66 and Article 68 of the Criminal Code of the Russian Federation?
To solve this problem, various approaches have been proposed.
L.V. Inogamova proposes to resolve the issue under consideration in favor of the rules for imposing punishment provided for in Article 66 of the Criminal Code of the Russian Federation. She notes that the norm on imposing punishment for recidivism of crimes (Part 2 of Article 68 of the Criminal Code of the Russian Federation) competes with the norm on imposing punishment for an unfinished crime (Parts 2 and 3 of Article 66 of the Criminal Code of the Russian Federation); when there is competition between norms with a mitigating feature and an aggravating one, preference should be given to the norm with a mitigating feature [1, p. 67]. This approach is highly controversial. Firstly, this position incorrectly interprets the rules for qualifying crimes. Yes, Art. 66 refers to the rules on unfinished criminal activity, and Art. 68 - regulates specific issues of multiplicity of crimes. Conflicts within the norms of the General Part are resolved by qualification according to a less strict norm of the Criminal Code [3]. However, taking into account the changes in Art. 68, it is she who is less strict in relation to Art. 66 of the Criminal Code of the Russian Federation. Secondly, the proposed approach ignores the increased risk of reoffending. It is one thing when an attempted crime is committed by a person with a criminal record, and quite another if such an act is committed by a person who has not previously been convicted for the first time. And finally, the application of the rules of CC in their pure form. 2 and 3 tbsp. 66 of the Criminal Code of the Russian Federation to repeat offenders, does not meet the requirements of the principles of justice in terms of taking into account the nature and degree of social danger of the act and the person who committed it; humanism - in relation to the protected interests of society and the state; equality - in its actual and legal understanding. As already noted, it is impossible to approach the issue of responsibility for repeat offenders and first-time offenders with the same standards.
A different approach to resolving the issue of sentencing for an unfinished crime in the presence of signs of relapse is outlined in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007. No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation” (as amended by Resolutions dated April 3, 2008 No. 5; October 29, 2009 No. 21), which states that when imposing a punishment on a person in the presence of recidivism of crimes, one should apply the rules of Article 68 of the Criminal Code of the Russian Federation, proceed from the maximum sentence that can be assigned taking into account the requirements of Article 66 of the Criminal Code of the Russian Federation [4]. Thus, for example, if a simple murder committed by a repeat offender was interrupted at the preparation stage, then the punishment should be imposed in the range from 5 to 7.5 years in prison (sanction - from 6 to 15 years); while for a person committing a similar act for the first time, the corresponding limits are from 6 to 7.5 years. If the murder was interrupted at the attempted stage, then the punishment in the event of a relapse will be imposed within the range of 5 to 11.3 years of imprisonment, while for the person who committed the said criminal act for the first time, the lower limit will still be 6 years . Thus, the analyzed situation again returns to the problem of the “unguaranteed” increase in punishment in case of recidivism and violation of the fundamental principles of criminal law. The presented example illustrates the legally regulated possibility of assigning a more lenient punishment to a repeat offender than to a person who has committed a similar criminal act for the first time.
To summarize the above, it should be noted the need to improve the legislative approach and law enforcement practice in the field of regulating criminal liability for recidivism in order to ensure the provisions of the fundamental principles of criminal law, the goals of punishment and the effectiveness of the fight against recidivism.
Literature:
1. Inogamova L.V. Competition of norms when imposing punishment within the sanction of articles of the Special Part of the Criminal Code of the Russian Federation // State and Law. 1999. No. 8.
2. Kachurin D.V. Assignment of punishment for recidivism of crimes // Russian judge. 2003. No. 5.
3. Kuznetsova N. F. Problems of qualification of crimes. M., 2007.
4. Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007. No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation” (as amended by Resolutions of 04/03/2008 No. 5; 10/29/2009 No. 21)//SPS “Garant”.
5. Samylina I. N. Assignment of punishment for recidivism // Criminal law. 2004. No. 12.
6. Stavtseva I. G. The Institute of Recidivism of Crimes in the Aspect of the Principles of Justice and Legal Equality of Citizens // Russian Justice. 2005. No. 7.
7. Chernenko T. G. Assignment of punishment for multiple crimes. Kemerovo, 2005.
