ST 10 of the Criminal Code of the Russian Federation.
1. A criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or those who have served their sentence but have a criminal record. A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect.
2. If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law.
What is retroactive criminal law?
Features and nuances of the retroactive force of the law More Retroactive force of the criminal law is the extension of the provisions of the Criminal Code to acts committed before these provisions entered into force.
To put it even more simply, this is a situation where the norms of the Criminal Code adopted after the commission of a crime are applied to a person involved in a criminal case.
For example: K. committed a crime on January 20, 2021. A week later, that is, on January 27, 2021, changes to the Criminal Code of the Russian Federation came into force, and K. is being tried in accordance with these changes.
As a general rule, the criminal law does not have retroactive effect (Part 1 of Article 9 of the Criminal Code of the Russian Federation):
But there are exceptions to this rule. More on this later.
Decriminalization
It can be partial or complete. Decriminalization can be carried out by changing the provisions of the norms not only of the Special, but also of the General Part. For example, new circumstances may be introduced that exclude the criminality of a person’s behavior, the concept of complicity may be narrowed, and liability for preparation for a crime or unfinished assault may be limited.
Decriminalization can also be achieved by:
- repeal of regulations from other industries that were referenced in the blanket norm;
- limiting the scope of regulation of criminal norms due to the recognition of the act as not representing a danger to society and, therefore, entailing an administrative or other milder sanction.
Partial decriminalization can take place by reducing the characteristics of the composition or by maintaining the blanket disposition of the norm without changes when adjusting positive legislation, violation of the provisions of which entailed criminal punishment.
Explanations on this issue were given by the Plenum of the Supreme Court in Resolution No. 23 of 2004. The court indicated that if the Federal Law excludes the corresponding type from the list of types of activities, the conduct of which is permitted only with a special permit, there are no signs of composition in the actions of the entity engaged in it, enshrined in Article 171 of the Criminal Code
When does a criminal law have retroactive effect?
A criminal law has retroactive effect only if the new law improves the situation of the person who committed the crime (Part 1 of Article 10 of the Criminal Code of the Russian Federation):
What does it mean to improve the situation of a person who has committed a crime?
A new criminal law or updated provisions of an already existing criminal law improves the position of the offender if:
- The changes made eliminated the criminality of the act, that is, the crime ceased to be a crime.
For example, in December 2011, Art. 130 of the Criminal Code of the Russian Federation - insult. That is, insult ceased to be considered a crime and became an administrative offense (Article 5.61 of the Code of Administrative Offenses of the Russian Federation).
Since the new edition of the Criminal Code, which no longer contains Art. 130, clearly improved the situation of those who committed this crime, it was it that was used. That is, after the changes came into force, it was no longer possible to convict for insult. Despite the fact that the crime was committed earlier.
- The amendments softened the punishment for the crime committed.
For example, in the original version of the Criminal Code of the Russian Federation, the maximum penalty for theft without aggravating circumstances (Part 1 of Article 158 of the Criminal Code of the Russian Federation) was 3 years of imprisonment. A few years later, changes were made to the article, and the upper limit of punishment was reduced to 2 years.
There is an obvious improvement in the situation of the perpetrators. Therefore, it was impossible to assign more than 2 years of imprisonment to those who committed a crime before the amendments came into force, but were convicted after.
Important: the removal of the lower limit of the punishment is also considered a mitigation of punishment. For example, if the previous sanction was from 2 to 5 years of imprisonment, and the new one was up to 5 years of imprisonment, that is, without a minimum threshold.
- The amendments eliminated the qualifying feature (aggravating circumstance).
For example, previously in many articles of the Criminal Code of the Russian Federation one could see repetition as a qualifying feature. It was found especially often in norms on various forms of theft. In particular, this is what the original version of Part 2 of Art. 161 of the Criminal Code of the Russian Federation – robbery:
This is what it looks like now:
Repetition as a qualifying feature has been removed from the Criminal Code. And if, before the amendments were made to the Criminal Code, the person managed to commit a crime provided for in paragraph “b” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation, his actions should have been reclassified under Part 1 of Art. 161 of the Criminal Code of the Russian Federation (provided that there are no other signs that make it possible to impute part 2). The difference in punishment is significant - 4 years of imprisonment versus 7.
Important: we have listed only the most popular ways to improve the position of the culprit when amending the Criminal Code.
In fact, there are many more of them. Thus, the following amendments can improve the situation of the person who committed the crime:
- excluded from Art. 63 of the Criminal Code of the Russian Federation certain aggravating circumstances;
- reducing the period for expunging a criminal record or the statute of limitations for criminal prosecution;
- increasing the age of criminal responsibility, etc.
Thus, if difficulty arises in choosing the edition of the Criminal Code to apply to a person who committed a crime during the period of amendments, one should be guided by one simple rule: the edition that improves the position of the perpetrator will be applied. By any means.
Art. 10 of the Criminal Code of the Russian Federation
A legislative act that eliminates the criminality of an act, mitigates responsibility or otherwise improves the position of the subject, has retroactive force. In other words, it applies to citizens who committed an act before its provisions acquired legal force, including those who are serving a criminal sentence or who have served it but have a criminal record.
The law that establishes the criminality of an act, tightens responsibility, or worsens the position of a citizen in another way does not have retroactive effect.
If a normative act mitigates a criminal penalty, it is subject to reduction to the extent provided for by the new law.
Simple and revisionary retroactivity of criminal law
Within the meaning of Article 10 of the Criminal Code of the Russian Federation, it is clear that the retroactive force of the criminal law covers 2 circles of persons:
- suspects, accused until the final procedural decision is made in the case or immediately before it enters into legal force (simple retroactive effect);
- convicted persons, the sentence in respect of whom has already acquired its legal force (retroactive revision).
In a situation with retroactive criminal law , which theorists have given the name “simple,” everything is more or less clear. The judge can apply it without any problems during the trial, or more precisely at the time of the final verdict, given the conditions listed in Art. 10 of the Criminal Code of the Russian Federation conditions: the court will reclassify the article (part of the article) to a less serious one. The dilemma about the applicability of retroactive revision is not always resolved so clearly.
Which criminal law has retroactive effect for those serving a sentence?
The specifics of using the retroactive force of criminal law in relation to those serving a sentence are not directly indicated by the legislator. However, after receiving numerous complaints about the revision of sentences, an interpretation arose given by the Constitutional Court of the Russian Federation in the resolution “In the case of checking the constitutionality of Part 2 of Art. 10 of the Criminal Code of the Russian Federation, Part 2 of Art. 3 Federal Law “On the entry into force of the Criminal Code of the Russian Federation” dated April 20, 2006 No. 4-P (hereinafter referred to as the resolution of the Constitutional Court).
As follows from the analysis of the resolution of the Constitutional Court, all sentences in which, for the same act committed during the period of validity of the updated version of the criminal norm, a more lenient punishment would be imposed or the situation would otherwise be improved in favor of the convicted person (for example, the norm of the Criminal Code) are subject to review and amendment The Russian Federation was decriminalized or its category was changed to a less serious one).
In addition, courts of all (including cassation, supervisory) instances must take into account all versions of the law at the time of making their decision and apply a more lenient one by virtue of Art. 10 of the Criminal Code of the Russian Federation (clause 3 of the Review of judicial practice of the Armed Forces of the Russian Federation No. 3 of October 19, 2016 (Judicial Collegium for Military Affairs).
Conclusion: the retroactive force of a law that improves the position of the guilty always applies. Even if he has already been convicted and is serving his sentence.
We invite you to study a selection of court decisions on the retroactive effect of criminal law from ConsultantPlus. If you don't have access to the system yet, you can get it for 2 days for free. Or order the current price list to purchase permanent access.
When has
I agree with the provisions of Art. 45 Part 1 of the Constitution of the Russian Federation, the rights of both persons under investigation and those with a guilty verdict are equal.
The legislation of the Russian Federation provides for cases in which the retroactive force of the law in criminal law is applied.
These include:
- Adoption of a new law that eliminates the crime in its essence, that is, decriminalizing it.
- Adoption of a new law mitigating punishment.
- Adoption of a new law that improves the situation of already convicted citizens.
In the Criminal Practice of the Russian Federation, a large number of crimes were decriminalized after the adoption of the Criminal Code of the Russian Federation in 1996. About 70 crimes under the RSFSR code were abolished. For example, punishment for failure to report, violation of state price discipline, engaging in prohibited types of individual activities, etc. is completely excluded.
As a result of the adoption of a new regulatory legal act (NLA), the act will change from criminal to administrative with the application of sanctions of the Code of Administrative Offenses of the Russian Federation, for minors the age of criminal prosecution under a specific article will change, and an adjustment to the elements of the crime will be made.
For a number of articles, the prescribed punishment may be mitigated. The new law reduces the limits of the term provided for serving the sentence, softens it, and cancels additional sanctions. For example, in Art. 206 of the Criminal Code of the RSFSR provided for criminal liability for damage to property in public transport. The analogue was Art. 214 of the Criminal Code of the Russian Federation - vandalism. The punishment was previously harsher and all sentences were subject to commutation with a reduction in the upper limit of the punishment.
Acts may be excluded from the Special Part of the Criminal Code of the Russian Federation and included in the General Part. Sometimes the reverse process occurs. If, when an article is reclassified, the punishment for it is provided to a lesser extent than in the previously valid wording, we are talking about partial decriminalization.
Often we are talking about reducing responsibility, which happened with the possibility of arresting a minor. Reducing the number of persons who cannot be sentenced to life imprisonment becomes the basis for commuting the sentence. Newly adopted legal acts often establish a more lenient regime for keeping criminals in colonies.
To understand whether a criminal law has retroactive force, it is necessary to study its new editions and those in force at the time of the act committed. If the fact of a change in legal acts is revealed, we are talking about applying a more lenient article.
By virtue of Article 10 of the Criminal Code of the Russian Federation, this force of criminal law extends its effect to two categories of citizens who have common qualities:
- persons who committed a crime, but at the time of the verdict the rule of law under the incriminated article changed (simple retroactive effect);
- convicts serving a sentence whose sentence has officially entered into force. In this case, the retroactive force of the law can be called revisionary.
In relation to each group, the retroactive force of the law operates with its own procedural features.
If a process or investigation is underway, the incriminated article under which, after the initiation of a criminal case, is decriminalized, then it is closed at any stage, since such an act has become absent from the list of criminal offenses. Convicts are subject to release. There are differences when the rule of law is partially changed. In the first case, the judge passing the sentence reclassifies the article during the legal proceedings.
To understand whether each adopted criminal law has retroactive force, one must look at the history of its amendments. The changed legal regulation, which implies a more serious measure of liability, does not apply to earlier cases.
The investigation of a crime is related to the criminal procedure law. Article 4 of the Code of Criminal Procedure of the Russian Federation stipulates that the case is subject to consideration according to the standards in force at the time the case is considered in court. However, numerous Determinations of the Constitutional Court indicate that all conflicts of law must be resolved in favor of the accused. To the question of whether the criminal procedure law in the country has retroactive force, the Determination of July 10, 2013 No. 270-O clarifies that the Criminal Code and the Code of Criminal Procedure of the Russian Federation are mutually related. Therefore, the possibility of giving retroactive effect to all acts that improve the situation of the convicted person is not excluded. The full version of the Supreme Court decision can be viewed using the Legal Consultant system.
