1. The execution of a sentence convicting a person to compulsory labor, correctional labor, restriction of freedom, arrest or imprisonment may be postponed by the court for a certain period if one of the following grounds is present: 1) illness of the convicted person, which prevents him from serving the sentence - until he recovers; 2) the convict is pregnant or has young children, the convict, who is a single parent, has young children - until the youngest child reaches the age of fourteen, with the exception of those sentenced to restriction of freedom, imprisonment for crimes against the sexual integrity of minors under the age of fourteen years, or imprisonment for a term of more than five years for grave and especially grave crimes against the person; 3) grave consequences or the threat of their occurrence for the convicted person or his close relatives, caused by a fire or other natural disaster, serious illness or death of the only able-bodied family member, other exceptional circumstances - for a period established by the court, but not more than 6 months; 4) the voluntary desire of a person sentenced to imprisonment for committing crimes for the first time, provided for in part one of Article 228, part one of Article 231 and Article 233 of the Criminal Code of the Russian Federation, recognized as a drug addict, to undergo a course of treatment for drug addiction, as well as medical and social rehabilitation - until the end a course of treatment for drug addiction and medical and social rehabilitation, but not more than five years.
2. Payment of a fine may be deferred or spread over a period of up to five years if immediate payment is impossible for the convicted person.
3. The issue of deferring the execution of a sentence is decided by the court at the request of the convicted person, his legal representative, close relatives, defense lawyer, or on the proposal of the prosecutor.
Grounds and terms of deferment
What is a deferment of execution of a court sentence in a criminal case and how is it granted - established by Art. 398 Code of Criminal Procedure of the Russian Federation. This is an exceptional measure that requires the presence of valid reasons for its application by the court.
The law provides only 4 grounds for granting a deferment:
- The convicted person is ill, and the illness does not allow him to serve the sentence immediately upon entry into force of the sentence. The deferment period is until recovery. Both illness and recovery must be confirmed by a medical certificate.
- Pregnancy, the presence of a young (under 14 years old) child of a convicted person, or the presence of a young child of a convicted person who is a single parent. The deferment period is until the child turns 14 years old. It does not apply to persons:
- sentenced to restriction of freedom;
- convicted of sexual offenses against minors;
- sentenced to more than 5 years of imprisonment for grave/especially grave crimes against the person (Articles of Section VII of the Criminal Code of the Russian Federation)
- sentenced to imprisonment for crimes of a terrorist and related nature (full list of articles - clause 2, part 1, article 398 of the Criminal Code of the Russian Federation).
- Existence of exceptional circumstances - deferment period up to 6 months:
- a fire or natural disaster that resulted in serious consequences or the threat of such consequences for the convicted person or his relatives;
- death or serious illness of the only able-bodied family member (breadwinner);
- other similar circumstances that the court recognizes as exceptional.
- The desire of a drug addict convicted of a crime under Part 1 of Art. 228, part 1 art. 231 or Art. 233 of the Criminal Code of the Russian Federation (drug trafficking), undergo an appropriate course of treatment and rehabilitation. The deferment period is until the end of the course, but not more than 5 years.
These grounds apply only in situations where punishment is imposed in the form of imprisonment, restriction of freedom, arrest, forced, corrective or compulsory labor.
A deferment or installment payment of the fine may be applied to all elements of the crime and in relation to any accused who have been sentenced to a fine (primary/additional punishment). The only reason is that the convicted person cannot execute such a punishment immediately and in full. The period of deferment (installment plan) is determined by the court, but cannot exceed 5 years.
On deferment of serving a sentence
Deferment of serving a sentence is a measure taken for pregnant women and women raising small children (under 14 years of age). The legislator establishes the possibility of assigning it to men who have children under 14 years of age in their care if they are their only parents.
Attention! An exception to the above grounds are persons convicted of acts against the sexual integrity of children, as well as for certain crimes against the person. On liability for violent acts against minors - here https://lexconsult.online/7684-otvetstvennost-po-uk-rf-za-izbienie-nesovershennoletnih-detei
This measure is taken upon a petition sent by a convicted citizen.
note
The ability to use a deferred sentence for drug addicts does not exempt them from other criminal liability. Law enforcement agencies will definitely check the culprit for possession of drugs or cultivation of cannabis.
The application is subject to consideration under the following conditions:
- the person has a living space that meets all sanitary and living requirements and is suitable for children;
- the child has no other relatives who have the right to claim his guardianship (by law);
- Previously, proceedings for deprivation of parental rights were not initiated against the convicted citizen.
The deferment of serving a sentence for drug addicts is regulated by Art. 82.1 of the Criminal Code of the Russian Federation. The condition for the application of the measure is the voluntary expression of the will of the convicted person to undergo treatment and rehabilitation. It is important that the maximum deferment period is 5 years.
Procedure for granting a deferment
The granting of a deferment applies, in accordance with Art.
399 of the Code of Criminal Procedure of the Russian Federation, to issues related to the execution of the sentence. For these issues, a special procedure for resolving them is provided. How to defer execution of a sentence? The reason for the court to consider a deferment of the sentence is a petition from an interested person. Such a person may be the convicted person himself, his close relative or legal representative, as well as a lawyer or prosecutor. The petition (prosecutor's presentation) is submitted to the court (judge) that issued the sentence. Its consideration is the competence of this particular court (judge).
The petitioner or the prosecutor has the right to request any period of deferment within the limits permitted by Art. 398 Code of Criminal Procedure of the Russian Federation. Convicts usually ask for the maximum possible period of time.
Procedure for consideration of the application:
- The court appoints the place and time of the hearing, notifying interested parties, including victims and their representatives.
- A meeting to consider the issue of deferment is held after 14 days from the date of notification of its appointment.
- All interested parties can participate in it personally, through a representative, together with him or through video conferencing. The presence of the person filing the petition (representation) is considered a mandatory condition. The prosecutor has the right to participate in the meeting to consider the petition of the convicted person (his representative, lawyer, or other persons).
- During the meeting, the floor is first given to the person who submitted the petition. His position and arguments are listened to and the evidence presented by him is studied to satisfy the request. Next, the court examines all materials and listens to the opinions of other participants in the meeting. The injured party has the right to object to the granting of a deferment. However, in this case, only arguments on the merits of the issue can be taken into account. In fact, the victim can only refer to the lack of grounds for granting a deferment. References to the fact that such a decision would be unfair, etc., should not be formally taken into account by the court. In addition, the victim’s disagreement is not a basis for refusing to satisfy the petition.
- After studying the opinions of all participants, examining the materials and presented evidence, the court makes a decision. There are two options - either the petition (representation) is granted and a specific period of deferment is established, or not. In any case, the court is obliged to give reasons for its decision.
Download the convicted person’s petition to defer the execution of the sentence (sample)
If any of the meeting participants disagree with the decision made, it can be appealed. In this case, the general procedure for appealing judicial acts will apply.
Execution of the sentence
During the Soviet era, deferment of execution of a sentence was of a different nature. It was appointed simultaneously with sentencing and could be applied to anyone convicted for the first time for a term of not more than 3 years.
That is, the deferment was a form of serving a sentence and had similar features to a suspended sentence, and therefore did not require a prior request from the convicted person for its application. In accordance with Art. 44.1 of the Criminal Code of the RSFSR, if the convicted person did not commit new offenses during the period of deferment, then he was released from serving a sentence of imprisonment, and his criminal record was expunged.
Applications were submitted only by those sentenced to real imprisonment when certain events occurred in their lives. Thus, pregnant women, women with young children and seriously ill persons could request a deferment. The deferment was granted for a certain period, but did not relieve the person from serving imprisonment. That is, at the end of the reprieve, the convicted person was taken into custody and sent to prison.
Currently, the very concept of deferment as a form of execution of a sentence has changed, as has the scope of its application.
Where to contact
Applications for deferment are considered:
- courts whose jurisdiction extends to the territory where a sentence of imprisonment is served;
- by the courts that passed the sentence, if the place of serving the sentence corresponds territorially, including if the penalty is associated with a fine or correctional labor;
- by higher courts, if the place where the sentence was passed and the place where the sentence was served do not coincide, and the corresponding unit of the judicial system does not operate in the territory.
Application structure
There is nothing complicated in drawing up an application (petition) for a deferment. If you wish, you can use the standard template available on the site. It will only need to be individualized in accordance with the real circumstances of the convicted person.
In accordance with the list of structural elements given below, the application should sequentially include:
- name of the judicial authority to which the application is sent;
- Full name of the applicant. Let us recall that the applicant can be either the convicted person himself or his close relatives or legal representatives;
- name of the application. For example, “Application for a deferment of execution due to illness”;
- description of the background. For example, “By the verdict of the court of the city N dated April 1, 2021, I was convicted under Art. ____ with a sentence of 5 years in prison and am currently serving a sentence in a _____ colony”;
- a description of the reason why the extension is requested. For example, “While serving my sentence, I was diagnosed with the following illness ____”;
- a description of what confirms the disease;
- the actual request to the court to grant a deferment;
- list of attached documents;
- date and signature of the applicant.
The list of attached documents is not limited. This means that any document can be attached that, in the opinion of the convicted person, can confirm the existence of grounds for a deferment.
Process
Applications for deferment are considered at a court hearing with the mandatory participation of a prosecutor. The convicted person, as a rule, is also invited to the court hearing, but the court session can be held without him if the convicted person’s appearance is impossible. At the request of the applicant, a lawyer may be involved in the process.
If the application for deferment is related to health conditions, a member of the medical commission who gave an opinion on the illness incompatible with imprisonment is invited to the court hearing.
Upon applications for deferment of payment of a fine, a bailiff is invited to court.
Application for deferment due to serious illness
The application must be accompanied by a medical or expert medical report, not only stating the fact of the presence of the disease, but also containing conclusions that the disease excludes the possibility of being in prison or performing correctional labor.
It should be remembered that not a single expert opinion has predetermined force for the court. The judge may accept the arguments of the medical report, but he will evaluate them in conjunction with other circumstances and guided by personal conviction.
The deferment is provided for the duration of treatment. If, based on the results of treatment, the convicted person recovers, the deferment will cease to apply and the convicted person will have to begin serving his sentence.
Illnesses that qualify for deferment include:
- mental illnesses that arose during the period of serving a sentence, due to which the convicted person ceases to be aware of the very fact of his presence in places of deprivation of liberty and to direct his actions;
- other serious illnesses that arose during the period of serving the sentence, incompatible with serving the sentence.
If we are talking about a mental illness, due to which the convicted person is declared insane, he is released from punishment and, if necessary, compulsory medical measures can be applied to him.
If another serious illness leads to disability of the convict, with assignment of disability of 1-2 groups, the convict will be released from serving his sentence according to the conclusion of the VTEC.
Deferment of fine payment
The period for execution of a penalty in the form of a fine is 30 days, and the fine, as a general rule, must be paid in full within this period.
If it is difficult to pay, the convicted person may ask the court or bailiff for:
- deferment of payment;
- installment payment.
Moreover, when submitting an application for deferment, the convicted person must indicate exactly when he will have the opportunity to pay the fine. In any case, a deferment may be granted for a period of no more than a year.
If the request concerns a deferment, then the amount of the fine is divided into several parts, which the convicted person must repay in accordance with the established payment schedule.
Consideration of the application
When making a decision on applications for granting a deferment, the court proceeds from an assessment of:
- the gravity of the crime committed;
- characteristics of the convicted person;
- the degree of his repentance;
- objective need to provide a deferment, etc.
An application for deferment may be sent to the court:
- the convicts themselves;
- his close relatives or dependents;
- legal representatives;
- prosecutor.
