Article 59 of the Criminal Code of the Russian Federation. Current edition for 2021, comments and judicial practice

1. The death penalty as an exceptional measure of punishment can be established only for especially serious crimes that encroach on life.

2. The death penalty is not imposed on women, as well as persons who committed crimes under the age of eighteen, and men who have reached the age of sixty-five by the time the court pronounces the sentence.

2.1. The death penalty is not imposed on a person extradited to the Russian Federation by a foreign state for criminal prosecution in accordance with an international treaty of the Russian Federation or on the basis of the principle of reciprocity, if, in accordance with the legislation of the foreign state that extradited the person, the death penalty is not provided for the crime committed by this person or the death penalty is not applied execution is a condition of extradition or the death penalty cannot be imposed on him for other reasons.

3. The death penalty by way of pardon may be replaced by life imprisonment or imprisonment for a term of twenty-five years.

Article 58. Assignment of a type of correctional institution to persons sentenced to imprisonment
Article 60. General principles of sentencing

Commentary to Art. 59 of the Criminal Code of the Russian Federation

The Constitution of the Russian Federation establishes the priorities of the values of our society. The highest of them in accordance with Art. 2 is a person, his rights and freedoms. Fundamental human rights and freedoms are inalienable and belong to everyone from birth. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.

Among the fundamental rights, the right to life stands out, which, if violated, cannot be restored. This circumstance necessitates the need for the most thorough approach to resolving issues related to the possibility of depriving a person of life. It was precisely on the basis of the above provisions that Russian criminal legislation followed the path of reducing the conditions under which the death penalty could be imposed for a crime committed. Firstly, this was manifested in a reduction in the types of crimes for which this punishment could be imposed, and, secondly, in a reduction in the categories of persons to whom the death penalty is applied. In addition, the Criminal Code of the Russian Federation provides for other restrictions on the use of the death penalty. For example, the death penalty was consistently excluded from the articles of the Criminal Code of the Russian Federation providing for liability for theft on an especially large scale, violation of the rules on currency transactions, bribery, etc. Currently, the Criminal Code of the Russian Federation provides for the possibility of imposing the death penalty only for crimes related to an attack on human life. These include: murder under aggravating circumstances (part 2 of article 105 of the Criminal Code of the Russian Federation); encroachment on the life of a state or public figure (Article 277 of the Criminal Code of the Russian Federation); encroachment on the life of a person administering justice or preliminary investigation (Article 295 of the Criminal Code of the Russian Federation); encroachment on the life of a law enforcement officer (Article 317 of the Criminal Code of the Russian Federation) and genocide (Article 357 of the Criminal Code of the Russian Federation). If, until 1993, the death penalty could not be imposed only on minors who had not reached the age of eighteen at the time of committing the crime, and on women who were pregnant at the time of the crime, pronouncement or execution of the sentence, then the current Criminal Code of the Russian Federation establishes a ban on imposing the death penalty on any woman, as well as persons who committed crimes under the age of eighteen, and men who had reached the age of sixty-five at the time of sentencing.

The prohibition of the death penalty against certain categories of convicts is based on the principle of humanism and a certain social conditioning. Thus, the non-application of this type of punishment against minors is due to the fact that at a young age they do not yet have an established psyche, do not always adequately perceive current circumstances, do not have sufficient life experience, and are more susceptible to the influence of others than adults. Because of this, it is often difficult for minors to assess the social significance of their actions.

As for women, practice has shown that they rarely commit crimes for which the law provides for the death penalty. At the same time, the great emotionality and excitability of the female psyche were taken into account. The practice of sentencing women was also taken into account - exceptional punishment was imposed on them by the courts extremely rarely.

The prohibition of the death penalty against men who have reached old age is also associated with the rarest cases of their committing relevant crimes, the virtual absence of recidivism and other circumstances that indicate the inappropriateness of maintaining the death penalty for this category of persons.

Restrictions on imposing the death penalty are also associated with other circumstances. For example, the death penalty is not imposed if the jury verdict is lenient, for preparation for a crime and attempted crime. If the death penalty is imposed, then by way of pardon it can be replaced by life imprisonment or imprisonment for a term of twenty-five years.

The non-application of the death penalty for an unfinished crime is also based on the principles of humanism and justice. At the same time, the legislator proceeds from the position that the death penalty can be imposed only in cases of causing death to other persons. Finally, the circumstances of the crime may be such that imposing the death penalty would be manifestly unfair. Therefore, the leniency of the jury is a factor that vetoes the application of an exceptional measure of punishment.

The Constitution of the Russian Federation recognizes the death penalty as an exceptional punishment, which, until its abolition, can be established by federal law only for particularly serious crimes against life. In this case, the accused is given the right to have his case examined by a jury.

The exclusivity of the death penalty as a punishment is also emphasized in the Criminal Code of the Russian Federation (Article 59). Thus, current legislation allows for the possibility of applying the death penalty if the above conditions are met, and, therefore, this type of punishment is legitimate. However, it has not been used in Russia for a long time. And this non-application is not at all connected with the absence of crimes for which the death penalty can be imposed. What is the prohibition on imposing and executing this type of punishment? In the legal literature one can find a statement about the establishment of a moratorium on the use of the death penalty. In this case, a moratorium usually refers to the provisions contained in Decree of the President of the Russian Federation of May 16, 1996 N 724 “On the gradual reduction of the use of the death penalty in connection with Russia’s entry into the Council of Europe.” However, this Decree did not establish a ban on the use of the death penalty, and could not have been established, since the President of the Russian Federation does not have such a right. Therefore, the only legal basis for the non-application of the death penalty is Resolution of the Constitutional Court of the Russian Federation of February 2, 1999 N 3-P, from the moment of entry into force of which until the entry into force of the corresponding federal law, providing throughout the Russian Federation for everyone accused of a crime, commission of which the death penalty is established by federal law as an exceptional measure of punishment, the right to have his case considered by a court with the participation of a jury, the death penalty cannot be imposed regardless of whether the case is considered by a court with the participation of a jury, a panel consisting of three professional judges or a court consisting of a judge and two people's assessors.

But this ban on the use of the death penalty is temporary. Formally, this punishment has been retained in the Russian Federation. Therefore, there is still a debate in society about the advisability of maintaining the death penalty in criminal law.

It should also be noted here that Russia is a member of the Council of Europe. Protocol No. 6 “Concerning the abolition of the death penalty” (Strasbourg, April 28, 1983) stipulates that the member states of the Council of Europe that have signed this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, have come to an agreement that the death penalty is abolished and that no one can be sentenced to death or executed (Article 1). Russia signed the Protocol on April 16, 1997 (Order of the President of the Russian Federation of February 27, 1997 N 53-rp). On March 30, 1998, Federal Law No. 54-FZ “On the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols” was adopted. This Law ratified the Convention and a number of protocols, among which Protocol No. 6 was not included. It has not yet been ratified.

Thus, the presence of the death penalty in the Criminal Code of the Russian Federation is completely legitimate.

As noted above, the death penalty is an exceptional punishment. Correction of a judicial error in the case of execution of the death penalty is impossible. Therefore, the legislator provides not only special conditions for imposing the death penalty, but also a special procedure for executing the death penalty, which would eliminate such an error to the maximum extent possible. This procedure is regulated by the Penal Code of the Russian Federation.

The death penalty is carried out non-publicly by shooting. The execution of the death penalty in relation to several convicts is carried out separately in relation to each and in the absence of the others.

During the execution of the death penalty, there is a prosecutor, a representative of the institution in which the death penalty is carried out, and a doctor.

The death of the convicted person is confirmed by a doctor. A protocol on the execution of the court sentence is drawn up and signed by the persons present during the execution of the sentence.

The administration of the institution in which the death penalty is carried out is obliged to notify the court that passed the sentence, as well as one of the close relatives of the convicted person, about the execution of the punishment.

The death penalty

The death penalty (Article 59 of the Criminal Code of the Russian Federation) consists of depriving the convicted person of the most important good - life.

The death penalty as an exceptional measure of punishment can be established only for especially serious crimes that encroach on life.

The death penalty is not imposed:

women;
persons who committed crimes under the age of eighteen;
men who have reached the age of sixty-five at the time of sentencing;
to a person extradited by the Russian Federation by a foreign state for criminal prosecution in accordance with an international treaty of the Russian Federation or on the basis of the principle of reciprocity, if, in accordance with the legislation of the foreign state that extradited the person, the death penalty is not provided for the crime committed by this person or the non-application of the death penalty is a condition for extradition or the death penalty cannot be imposed on him for other reasons.

The death penalty by way of pardon may be replaced by life imprisonment or imprisonment for a term of twenty-five years.

The exceptional nature of the death penalty is as follows:

it is provided only for five particularly serious crimes related to an attack on human life (Part 2 of Article 105, Articles 277, 295, 317 and 357 of the Criminal Code of the Russian Federation).
it is not prescribed to women, as well as to persons who committed a crime under the age of eighteen, regardless of their age at the time of sentencing; men who have reached the age of sixty-five at the time of sentencing.
For those sentenced to death, the punishment may be replaced by imprisonment or life, or for a period precisely specified in the law - twenty-five years. The appeal of a convicted person with a petition for pardon constitutes the right of the convicted person and entails mandatory consideration by the pardon commissions under the heads of the constituent entities of the Russian Federation, and then by the President of the Russian Federation.
Criminal executive legislation has established a number of additional guarantees against the execution of unjustified death sentences: mandatory issuance of opinions by the Chairman of the Supreme Court of the Russian Federation and the Prosecutor General of the Russian Federation on the absence of grounds for filing a protest against the court verdict in the manner of supervision.

According to the law, the basis for the execution of the death penalty is a court verdict that has entered into legal force, the above-mentioned conclusions of the Chairman of the Supreme Court of the Russian Federation and the Prosecutor General of the Russian Federation, as well as a notice of rejection of a petition for clemency or an act of refusal of the convicted person to apply for clemency ( Part 4 of Article 184 of the Penal Code).

The death penalty is carried out non-publicly by shooting. The administration of the institution where the death penalty is carried out notifies the court that passed the sentence, as well as one of the close relatives of the convicted person, about the execution of the punishment.
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Judicial practice under Article 59 of the Criminal Code of the Russian Federation

“Review of the practice of the Constitutional Court of the Russian Federation for 2017”
50. By Resolution No. 7-P of March 16, 2021, the Constitutional Court assessed the constitutionality of the provisions of paragraph 2 of part two of Article 30 and paragraph 1 of part three of Article 31 of the Criminal Procedure Code of the Russian Federation, part second article 57 and part two of article of the Criminal Code of the Russian Federation.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 5, 2018 N 78-APU18-28

Thus, the sanction of Part 5 of Art. 228.1 of the Criminal Code of the Russian Federation in its legal unity with the provisions of Part 2 of Art. The Criminal Code of the Russian Federation provides for punishment for women in the form of imprisonment for a term of 15 to 20 years. By virtue of Part 4 of Art. According to the Criminal Code of the Russian Federation, for a combination of crimes, the guilty person may be sentenced to imprisonment for a term of up to 25 years.

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 19, 2019 N 23-UD19-6

on the basis of Part 5 of Art. The Criminal Code of the Russian Federation for the totality of crimes by partial addition of the punishments imposed by the verdict of June 11, 2002 and by the verdict of August 3, 2005, impose seventeen years and two months of imprisonment. Otherwise, these same court decisions are left unchanged, and the cassation appeal of the convicted Khaidarov R.M. - without satisfaction.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 29, 2018 N 51-APU18-4

The punishment imposed on all convicted persons complies with the requirements of the law, is fair and proportionate to the crime. Provisions of Part 5 of Art. The Criminal Code of the Russian Federation in relation to the convicted Litvinenko was applied correctly by the court of first instance. The court's decision to collect procedural costs from convicted persons in the amounts specified in the verdict complies with the requirements of the criminal procedure law. The conclusions about the amount of procedural costs to be recovered from the convicted persons are motivated in detail by the court in the verdict and are justified.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 29, 2019 N 82-APU18-10

According to paragraph 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”, based on the provisions of Part 4 of Art. Of the Criminal Code of the Russian Federation, the issue of applying statutes of limitations to a person who has committed a crime for which punishment is life imprisonment is resolved only by the court and in relation to all subjects, regardless of whether this punishment can be assigned to the person taking into account the rules of Part 2 of Art. , part 2 and 2.1 art. , part 4 art. and part 4 art. Criminal Code of the Russian Federation.

Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 8, 2017 N 74-UD17-9

In accordance with Part 2 of Art. and part 2 of Art. The Criminal Code of the Russian Federation does not impose life imprisonment and the death penalty on women. In this connection, the most severe type of punishment for committing a crime under Part 2 of Art. 105 of the Criminal Code of the Russian Federation, for women it is 20 years of imprisonment.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 18, 2018 N 59-APU18-2

Since in accordance with Part 2 of Art. and part 2 of Art. The Criminal Code of the Russian Federation does not impose life imprisonment and the death penalty on men who have reached the age of sixty-five by the time the court pronounces the verdict, and also taking into account the absence of aggravating circumstances in the case, the court, when imposing punishment on Tatomir Ya.I. applied the provisions of Part 1 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 February 22, 2018 N 4-APU18-3

Resolution of the Presidium of the Supreme Court of the Russian Federation dated February 15, 2017 N 6P17

In accordance with Part 2 of Art. , part 2 art. The Criminal Code of the Russian Federation does not impose life imprisonment or the death penalty on women. Therefore, taking into account the requirements of Art. Criminal Code of the Russian Federation, Sklepovich under paragraphs “g”, “k”, part 2 of Art. 105 of the Criminal Code of the Russian Federation, a sentence exceeding 13 years and 4 months of imprisonment could not be imposed.

Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 23, 2017 N 45-O17-2

Based on the provisions of Part 4 of Art. According to the Criminal Code of the Russian Federation, the issue of applying the statute of limitations to a person who has committed a crime for which punishment is life imprisonment is resolved only by the court, regardless of whether this punishment can be assigned to the person taking into account the rules of Part 2 of Art. , part 2 art. , part 4 art. and part 4 art. Criminal Code of the Russian Federation. Exemption of persons from criminal liability for such crimes is a right, not an obligation of the court.

Resolution of the Constitutional Court of the Russian Federation dated March 16, 2017 N 7-P

ARTICLES OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION IN CONNECTION WITH THE COMPLAINT OF CITIZEN V.D. LABUSOV Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,