Article 10 of the Criminal Code of the Russian Federation. Retroactivity of criminal law

Criminal Code of the Russian Federation in the latest edition:

Article 10 of the Criminal Code of the Russian Federation. Retroactivity of criminal law

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.

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Comments on Article 10 of the Criminal Code of the Russian Federation

In Part 1 of Art. 10 of the Criminal Code of the Russian Federation formulates the principle of retroactive force of criminal law, which is an exception to the requirements established in Art. 9 of the Criminal Code of the Russian Federation.

The retroactive force of a criminal law can be defined as the extension of the law to regulate those criminal legal relations that arose before its entry into force. According to Part 1 of Art. 10 of the Criminal Code of the Russian Federation, three types of criminal laws have retroactive effect:

eliminating the criminality of an act;
mitigating punishment;
otherwise improving the situation of the person who committed the crime.

The Constitutional Court gave a new interpretation to the rules on the retroactive force of laws

The Constitutional Court of the Russian Federation provided clarification on how to determine the amount of a fine during the period when a law mitigating the punishment for an offense comes into force. The reason for checking the constitutionality of a number of legislative norms was a request from the Moscow Arbitration Court and a complaint from Proekt LLC from the Pskov region. The case was considered at the meeting without a hearing. The applicants appealed to the Constitutional Court with a question about the constitutionality of Part 1 of Art. 46 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund” and Art. 20 of the Federal Law of July 3, 2016 No. 250-FZ “On amendments to certain legislative acts of the Russian Federation and the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation in connection with the adoption of the Federal Law “On amendments to parts one and two of the Tax Code” Code of the Russian Federation in connection with the transfer to the tax authorities of powers to administer insurance premiums for compulsory pension, social and medical insurance.”

According to Part 1 of Art. 46 of the Law on Insurance Contributions, failure by the payer to provide a calculation of accrued and paid contributions to the control body within the prescribed period entails the collection of a fine. This law lost force on January 1, 2021 due to the entry into force of Federal Law No. 250. According to Art. 20 of the new law, control over the correctness of calculation, completeness and timeliness of payment of insurance contributions to state extra-budgetary funds payable for periods before January 1, 2021 is carried out by the relevant bodies of the Pension Fund of the Russian Federation and the Social Insurance Fund in the manner in force before the date of entry into force of this law.

The Moscow Arbitration Court received a case to invalidate the decision of the Main Directorate of the Pension Fund of the Russian Federation No. 10 for Moscow and the Moscow Region dated January 26, 2021 on holding the payer of insurance premiums liable for failure to provide on time calculations for accrued and paid insurance contributions to the Pension Fund for periods before January 1, 2021. The arbitration court found that the said decision was made after the law on insurance premiums became invalid, and came to the conclusion that Art. 20 of Law No. 250-FZ contradicts Art. 54 (Part 2) of the Constitution of the Russian Federation, since it allows one to be held accountable on the basis of a law that has lost force, if the new legislative regulation contains similar, but not completely similar measures of responsibility. In this regard, the ASGM suspended the proceedings in the case and filed a request with the Constitutional Court of the Russian Federation.

Proekt LLC, in turn, on January 13, 2021, was fined by the Pension Fund Office in the city of Pskov and the Pskov district of the Pskov region for failure to provide calculations for insurance premiums. The Arbitration Court of the Pskov Region partially satisfied the request of Proekt LLC to invalidate this decision, reducing the amount of the fine taking into account mitigating circumstances. In its appeal to the Constitutional Court, Proekt LLC indicated that it sees a discrepancy between the norms of the laws of the Constitution, since they allow prosecution after January 1, 2021 on the basis of a provision that has lost force, while from this date the norms of the Tax Code should be applied to them RF, providing for a more lenient punishment.

The Constitutional Court, having considered the case, noted that the law establishing or aggravating liability, according to Art. 54 of the Constitution does not have retroactive effect. If, after the commission of an offense, liability for it is eliminated or mitigated, the new law applies. These rules have a universal meaning for all types of legal liability and are binding both for the legislator and for law enforcement agencies, including courts.

A legal norm can be applied even after the law that contained it has lost force, but only if the liability provided for by it is milder than that currently established, and only within the statute of limitations established by law.

The payer's liability for failure to provide calculations for insurance premiums in the form of a fine, which was provided for in Part 1 of Art. 46 of the law on insurance premiums from January 1, 2021, i.e. without a temporary gap, clause 1 of Art. 119 of the Tax Code.

From January 1, 2021, either Part 1 of Art. 46 of the law on insurance premiums, or paragraph 1 of Art. 119 NK. The choice of one of the legal provisions is predetermined by the provisions of Art. 54 of the Constitution.

At the same time, the Constitutional Court refrains from examining the question of whether a specific law enforcement situation is possible in which responsibility for the act specified in Part 1 of Art. 46 of the law on insurance premiums, will be the same or less strict than for the act provided for in paragraph 1 of Art. 119 NK.

Neither the legal provisions contested by the applicants, nor other provisions of Law No. 250 directly name the authority of the bodies of the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, when bringing to responsibility from January 1, 2021 for failure to provide calculations for insurance premiums for periods expired before January 1, 2021, to apply clause 1 Art. 119 NK. Meanwhile, refusal to apply this legal provision in cases where it provides for a smaller fine than Part 1 of Art. 46 of the law on insurance contributions would create conditions for violation of the requirements of the Constitution. In addition, as the Constitutional Court has repeatedly pointed out, the goals of the rational organization of the activities of government bodies alone cannot serve as a basis for restricting rights and freedoms, and therefore the fact that the application of Tax Code norms falls within the competence of the tax authorities cannot, in the current situation, be considered as an obstacle to their application by the bodies of the Pension Fund of the Russian Federation and the Social Insurance Fund, if this is due to the direct effect of Art. 54 (Part 2) of the Constitution.

As a result, the Constitutional Court determined that the contested norms do not contradict the Constitution, since by their meaning they imply that the application of the provisions of Part 1 of Art. 46 of the law on insurance contributions from January 1, 2021 to acts committed before this date is permissible only if in the system of current legal regulation, taking into account the actual circumstances of a particular case, the calculated amount of the fine is less than or equal to the amount of the fine calculated in accordance with paragraph 1 tbsp. 119 NK. In other cases, clause 1 of Art. 119 NK.

Elimination of criminal acts

A law eliminating the criminality of an act is a law that abolishes criminal liability for this act.

A law that eliminates crime and punishability of an act should be considered a law that:

an article or part of an article on liability for a particular crime is excluded from the Special Part of the Criminal Code of the Russian Federation;
the content of crime-forming elements of the crime changes, which leads to a decrease in the volume of criminal acts (for example, a special motive for the crime is additionally established, or the age of the subject of the crime increases, etc.).

Decriminalization of certain acts can be carried out not only by introducing appropriate changes to criminal legislation, but also by repealing regulatory requirements in other legal acts. For example, the following should also be recognized as a form of decriminalization of crimes:

changes in by-laws of criminal law (for example, resolutions of the Government of the Russian Federation, which determine the list and quantities of narcotic drugs for the purposes of applying the relevant articles of the Criminal Code of the Russian Federation);
changing the blanket regulatory material to which articles of the Criminal Code of the Russian Federation refer when describing the elements of crimes (for example, changing the list of types of activities for which a license is required);
changes to the legislation on administrative offenses, which defines elements of administrative offenses related to crimes (for example, the amount of petty theft).

The retroactive application of a criminal law that eliminates criminality and punishability of acts presupposes:

the impossibility of initiating a criminal case on the facts of committing acts, the criminality and punishability of which has been eliminated, and in relation to the persons who committed such acts;
termination, for lack of corpus delicti, of all criminal cases against persons accused of committing acts that are decriminalized by the new law (Part 2 of Article 24 of the Code of Criminal Procedure of the Russian Federation), with the consent of these persons and without recognizing their right to rehabilitation (Part 4 of Art. 133 Code of Criminal Procedure of the Russian Federation);
exemption from criminal punishment of all persons who are serving a sentence for committing acts that have been subject to decriminalization (clause 13 of article 397 of the Code of Criminal Procedure of the Russian Federation);
expungement of criminal records from persons who have served a sentence for an act decriminalized by the new law.

Retroactive application of the law

If a criminal procedural law is adopted that has retroactive effect on the complete decriminalization of an act, the case is closed at any stage of the proceedings, including the preliminary investigation. If this law came into force after a court decision was made, it is not canceled for lack of corpus delicti, but the convicted person is released from punishment. When mitigating liability, the court (including the cassation and supervisory authorities) takes into account the new provision when passing a sentence. The prescribed measures are reduced in accordance with the new regulations.

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Mitigation of punishment

The law mitigates punishment if it:

excludes any type of punishment from the punishment system;
replaces the type of punishment in the sanction with a more lenient one;
excludes the most severe type of punishment from the sanction;
reduces the minimum and maximum amounts of punishment (in the case when the lower limit of punishment has become softer and the upper limit has become stricter, one should focus on the upper limit, such a law is recognized as more stringent);
introduces a more lenient type of primary or additional punishment into the sanction;
excludes additional punishment;
while maintaining the main and additional punishment, it introduces into the sanction alternatively less severe types of the main punishment, which were not previously provided for by law.
limits the list of persons who may be assigned one or another type of punishment;
reduces the amount of deduction from wages when sentenced to correctional labor, etc.

The retroactive application of a law that mitigates criminal punishment presupposes:

reclassification of all crimes, cases of which are at the stage of preliminary investigation or trial, to a new criminal law;
reduction or change of punishment for persons to whom the previous law was applied, taking into account the provisions of the new law;
in necessary cases, release from punishment in connection with its completion;
reduction within the term of expungement of a criminal record of a sentence that has already been served by the convicted person;
reduction of the criminal record or expungement of the criminal record of persons who have already served their sentence, based on the provisions of the law related to reduced punishment.

Otherwise improving the situation of the person who committed the crime

The retroactive force of the criminal law will occur not only in the case of decriminalization of an act or mitigation of punishment, but also in all other cases when changes in the criminal law are in one way or another connected with improving the situation of the perpetrator. Such an improvement could be, for example:

establishing the possibility of assigning a less strict type of correctional institution;
easing the penal regime
easing conditions of parole;
reducing the statute of limitations for exemption from criminal liability;
reduction of terms for repayment or expungement of a criminal record;
exclusion of a qualifying feature;
conditions for release from criminal liability or punishment.

Options for improving the position of the offender are not limited by law, and the adoption of any of them means the need to apply provisions on the retroactive effect of the criminal law.

The rule on the retroactive effect of a law applies both to persons who committed the relevant act before the entry into force of such a law, and to persons serving a sentence or having a criminal record under an older, more stringent law.

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 norms of both the Special Part and the General Part of the Criminal Code of the Russian Federation as amended by this law (Part 2 of Article 10 of the Criminal Code).