Conditional condemnation. Cancellation of probation. Does canceling probation after half time expire? (Article 74 part 1 of the Criminal Code of the Russian Federation) Extension of the probationary period in case of a repeated crime

A.L. Yanovsky, 2005

PROBLEMS OF FIGHTING CRIME AT THE PRESENT STAGE - ---

REMOVAL FROM A CONFICIENT AND EXPANDING THE CONVINCED WHEN THE CONDITION IS ANNOUNATED

A.L. Yanovsky

Part 1 of Art. 74 of the Criminal Code of the Russian Federation provides that if, before the expiration of the probationary period, the conditionally convicted person has proved his correction by his behavior, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional conviction and to remove the conviction from the convicted person. At the same time, conditional conviction may be canceled after at least half of the established probationary period.

This legislative norm provides for the possibility of applying positive measures to a conditionally convicted person if he is corrected before the expiration of the probationary period.

The application of incentives to a conditionally convicted person is not an innovation in criminal law, although with the adoption of the Criminal Code of the Russian Federation, this institution has undergone significant changes. The Criminal Code of the RSFSR of 1960 provided that, at the request of public organization or the labor collective entrusted with the supervision of the probationer, the court could reduce the probationary period established by the verdict. The question of reducing the probationary period could be raised after the expiration of at least half of this period.

After the adoption of the Criminal Code of the RSFSR in 1960, in the scientific literature, the possibility of reducing the probationary period was considered as “an important incentive that encourages the convict to justify the trust placed in him by active and useful actions, to show his own initiative, to direct his will to @ the fastest correction and re-education”1.

Federal legislation did not establish limits for the reduction of the probationary period, which made it possible to reduce it both to the actual expired and to a certain extent. If the probationary period is reduced to the actual expired general rule there was a repayment of a criminal record, that is, a conditional conviction was “cancelled”, while reducing it in part, the convict continued to pass the test until the expiration of the term within its unreduced part.

At the same time, a number of scientists involved in the study of the application of probation expressed thoughts about the inexpediency of reducing only part of the remaining probationary period, which was explained by its short duration and the possibility of such a reduction only after half. It was considered expedient to reduce the probationary period to the actual expired2.

In fact, the development of this norm in the indicated direction led to its presentation in the current version (part 1 of article 74 of the Criminal Code of the Russian Federation).

The study of the judicial practice of the abolition of probation and the removal of a criminal record from the convict allows us to conclude that the specified criminal law norm is widely used by the courts. Thus, in the Volgograd region in 2003, the penitentiary inspectorates 566 times applied to the court with submissions on the abolition of probation and the removal of convictions from convicts. In 538 cases, these submissions were satisfied by the courts and the suspended sentence was canceled and the criminal record was expunged (by such

95% of the submissions were satisfied in this way). This amounted to 7.6% of the total number of those sentenced to a suspended sentence in

2003 (7,090 people) or 4.67% of the total number of probationers registered at the end of 2003 with penitentiary inspections in the Volgograd region (11,502 people3). In 2004, the penitentiary inspectorates applied to the court 477 times with such representations. The courts satisfied 94.7% of the submissions, and the conditional sentence was canceled by 452 convicts, which amounted to 6.97% of the total number of those sentenced to criminal punishment on probation in

2004 or 4.53% of the total number of probationers registered at the end of 2004 with penitentiary inspections in the Volgograd region (9,976 people)4.

At the same time, the development and dissemination of the criminal law norm under consideration has generated a number of contradictions and ambiguities that suggest the need for further improvement of this institution.

So far, the principle has not been fixed by law, according to which the conviction is extinguished in the event of the appointment of additional types of punishment in case of conditional conviction. Article 86 of the Criminal Code of the Russian Federation establishes that in case of conditional conviction, the conviction is canceled after the probationary period has expired (clause “a”, part 3 of article 86 of the Criminal Code of the Russian Federation). Moreover, this rule does not contain any restrictions, which theoretically should mean the need to apply it in all cases when deciding on the expiration of a criminal record in case of conditional conviction. At the same time, according to paragraph “b” of part 3 of this article, in relation to persons sentenced to milder types of punishments than imprisonment, the conviction is extinguished after one year after serving or executing the punishment. Moreover, this norm also does not stipulate that after the execution (departure) of the main or additional type of punishment, the conviction is extinguished.

The Plenum of the Supreme Council of the USSR in paragraph 12 of Resolution No. 2 “On some issues that have arisen in judicial practice in the application of the Decrees of the Presidium of the Supreme Council of June 26, 1982 “On the further improvement of criminal and corrective labor legislation”” on a similar issue explained that the one-year the period of repayment of a criminal record for such persons is calculated from the date of

being additional punishment. At the same time, “these clarifications are contrary to the law and, therefore, go beyond the scope of its interpretation (and beyond the competence of the Plenum Supreme Court USSR)"5. At the same time, such a decision “seems expedient and deserves to be implemented by improving the law”6.

scientific literature in the 1980s. an opinion was expressed about the inappropriateness of appointing an additional sentence for a suspended sentence for a period exceeding the duration of the probationary period. This was explained primarily by the fact that the successful completion of the probationary period indicates the re-education of the convict, and in this case, the goal pursued by additional punishment is not clear if the re-education has already been achieved. As a solution, it was proposed legislative consolidation the impossibility of imposing additional punishment in the form of deprivation of the right for a period exceeding probation 7.

Even in the event that the probationary period exceeds the duration of the additional punishment, or they are equal when the court applies the provisions of Part 1 of Art. 74 of the Criminal Code of the Russian Federation, a number of problems may arise. Thus, the criminal law does not connect the possibility of canceling a conditional conviction and removing a convicted person from a criminal record with the execution (serving) of an additional punishment imposed by a court sentence, or the expiration of a year from the moment of its execution (departure).

For example, by the verdict of Kirovsky district court City of Volgograd dated January 30, 2002, citizen E. was found guilty of committing a crime under paragraph “a” part 2 of Art. 286 of the Criminal Code of the Russian Federation, and he was sentenced to imprisonment for a period of 4 years with deprivation of the right to hold the position of representative state power for a period of

3 years, subject to Art. 73 of the Criminal Code of the Russian Federation conditionally, with a trial period of 3 years. In 2004, the penitentiary inspectorate of the Krasnoarmeisky district of Volgograd applied to the court with a motion to cancel the conditional conviction and remove the criminal record from E., since

before the expiration of the probationary period, the convicted person proved his correction by his behavior: he regularly appeared for registration, got a job, was characterized at the place of work and residence exclusively on the positive side, compensated the victim for the damage caused by the crime. The Krasnoarmeisky District Court considered the arguments set out in the submission to be substantiated and on March 26, 2004, quashed E.'s conditional conviction and expunged the conviction by the verdict of the Kirovsky District Court of Volgograd from

January 30, 2002.

The punishment in the form of deprivation of the right to hold the position of a representative of state power was imposed on E. by the verdict of the Kirovsky District Court of Volgograd from

January 30, 2002 as an additional. According to the decision of the Plenum of the Supreme Court of the Russian Federation “On the practice of imposing criminal penalties by the courts” No. 40 of June 11, 1999, only the main punishment can be recognized as suspended. Additional punishments are actually carried out, which should be indicated in the operative part of the sentence. Accordingly, the punishment in the form of deprivation of the right to hold the position of a representative of state power, imposed by E., was subject to real execution.

This circumstance did not find any reflection either in the descriptive and motivational or in the resolutive part of the decision of the Krasnoarmeysky district court and did not affect the decision itself.

It remains unclear whether it is generally possible in such a case, after the expiration of half of the probationary period and in the presence of circumstances proving the correction of the convict, to raise the question of the abolition of the conditional conviction and the removal of the conviction from the convicted person. Such a “cancellation of probation” means not only a reduction in the probationary period to the actually served one and, as a result, the end of the probation of the convict sentenced to a suspended sentence, but also in fact the release of the convict from further execution of an additional type of punishment. However, the possibility of such a release (contained in the rule governing parole, part 1 of article 79 of the Criminal Code of the Russian Federation) is not provided for by this criminal law norm and makes the adoption of such a decision at least controversial.

In addition, in this case, as well as in the event that the period of deprivation of the right to practice

certain activities, to hold a certain position is appointed as an additional punishment for a period of less than the established probationary period, and the issue of the abolition of probation and the removal of a criminal record from the convicted person is decided after the actual serving of the additional punishment, but before the expiration of the one-year term for the redemption of a criminal record, the court, deciding on “cancellation of probation”, automatically resolves the issue of removing a criminal record from him before the expiration of its repayment period (part 5 of article 86 of the Criminal Code of the Russian Federation). Despite the fact that such a removal of a criminal record from a convicted person is possible after serving his sentence, the court can make such a decision only at his request, and the abolition of a suspended sentence and the removal of a criminal record from a convicted person is carried out at the proposal of the penitentiary inspection.

In the scientific literature, in order to eliminate the existing “gap” between the main and additional punishments, it has long been proposed to grant the court the right, when releasing a person from serving the main punishment, to simultaneously release him from further serving an additional punishment. As mentioned above, the possibility of such a release is contained in the rule governing parole (part 1 of article 79 of the Criminal Code of the Russian Federation). In our opinion, this opportunity should be provided to the court when it decides on the abolition of probation and on the removal of a criminal record from the convicted person, which would fully correspond to the idea of ​​​​the unity of the main and additional punishments.

In view of the above arguments, it seems necessary to amend Part 1 of Art. 74 of the Criminal Code of the Russian Federation and state it as follows: “If, before the expiration of the probationary period, the conditionally convicted person has proved his correction by his behavior, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional sentence. In this case, the person is released from serving an additional type of punishment.

Probation may be canceled after at least half of the established probationary period has expired.

In addition, earlier suggestions were made about the need to refuse to cancel the conviction at the time of the expiration of the probationary period and the application general order its repayment, that is, after the expiration

a certain period provided by law for the commission of crimes of varying degrees of severity, after serving or executing the sentence. This position appears to be justified for the following reasons.

First, the law provides for two ways to terminate a criminal record - its redemption and removal. If the expiration of a criminal record occurs after the expiration of certain deadlines established by Art. 86 of the Criminal Code of the Russian Federation, directly related to the type of punishment, and in relation to conditionally convicted - after the expiration of the probationary period, then the removal of the conviction is carried out on the condition of the impeccable behavior of the convicted person at his request and with the mandatory issuance of a reasoned decision by the judge.

A conviction may be expunged from any person who has served a sentence. The essence of such a decision lies in the fact that it is made before the expiration of the term for the redemption of a criminal record, if there is evidence of the impeccable behavior of a particular person.

As stated above, Part 1 of Art. 74 of the Criminal Code of the Russian Federation provides that the court, when revoking a conditional sentence, decides simultaneously and

on the removal of a convicted person from a criminal record. It would seem that all the prerequisites (except for the procedure for going to court) are available, indicating that the criminal record from the conditionally sentenced when the conditional conviction is canceled is precisely removed, and not repaid, since there is obvious evidence of the impeccability of his behavior, and in fact he is released from “possible serving of the main type of punishment”.

At the same time, according to the logic of the development of this norm, it can be seen that initially, in the event of a reduction in the probationary period to the actually expired one, the conviction was not withdrawn, but extinguished due to the expiration of the probationary period. That is, when the probation is canceled, the probationary period is considered to have expired and the conviction is automatically canceled according to the rules of paragraph “a” of part 3 of Art. 86 of the Criminal Code of the Russian Federation, which in principle makes it unnecessary to take a decision to remove it.

Secondly, in its expanded form, criminal liability includes a guilty verdict, punishment and conviction. “With conditional condemnation, the middle link drops out criminal liability- execution of the main punishment”8. The rest of the elements are wrapped

a punitive sentence and a criminal record retain their legal burden. However, in this case, the institution of "cancellation of probation" should also affect only the issues of execution or non-execution of the main type of punishment imposed by a court verdict. In addition, the institution of removing a convicted person from a criminal record before the expiration of its repayment period has already been legally fixed (part 5 of article 86 of the Criminal Code of the Russian Federation) and is independent.

Thus, in our opinion, the repayment of a criminal record should not be carried out automatically after the expiration of the probationary period, but in accordance with clauses “b”, “c”, “d”, “e”, part 3 of Art. 86 of the Criminal Code of the Russian Federation. The period of repayment of the conviction must be calculated in this case from the moment of the expiration of the probationary period. This principle is fully consistent with the essence and objectives of criminal liability and separates two independent institutions - "removal of conviction" and "release from punishment", artificially combined in the considered criminal law norm.

To implement the above, it is necessary: ​​to exclude from Part 3 of Art. 86 of the Criminal Code of the Russian Federation, paragraph “a”; p. "b", "c", "d", "d" part 3 of Art. 86 of the Criminal Code of the Russian Federation shall be supplemented with an indication that the term for the redemption of a criminal record in case of conditional conviction should be calculated from the moment the probationary period expires.

At the same time, in particular cases, it is advisable to provide for the possibility of resolving the issue of removing a convicted person’s criminal record before the expiration of its repayment period simultaneously with resolving the issue of “final” release from a possible execution of a sentence imposed conditionally. However, the corresponding conclusion of the court on the removal of a criminal record should follow the conclusion on the possibility of "reducing the probationary period to actually expired", and both conclusions will be independent decisions, albeit in one document.

Undoubtedly, the proposal will raise objections from a number of theorists and practitioners. So, if the period of repayment of a criminal record is calculated from the moment the probationary period expires, and the probationary period itself is longer than the term of the main punishment imposed by a court verdict, it can be assumed that this worsens the situation of a conditionally convicted person in the sense that with respect to him

in fact, the terms of repayment of a criminal record are lengthened. This idea has already been expressed in the scientific literature, and it was proposed to legislate the principle, according to which the probationary period should be lower than the term of the imposed main punishment.

At the same time, such a norm will not resolve the contradiction that has arisen from this point of view and will only establish “the relationship between the term for the redemption of a conviction, based on the categories of crime, and the term of probation”9. In addition, the question of lengthening the terms of repayment of a criminal record always arises if the conditional conviction was canceled, and the punishment was actually executed.

Conditional conviction in general, and probation in particular, in our opinion, are of such a specific nature that the impact they have on such a category as a criminal record is just as justified as the impact on this category of the type of punishment itself.

NOTES

1 Savin N.F., Efimov M.A. Conditional conviction and parole. M., 1963.

2 Veretennikova T. G. Expiration of the probationary period in the application of probation. Ustinov, 1986, p. 7.

3 Operational information about the work of the AIM in the Volgograd region for 2003-2004.

4 Reports on the work of the courts of the 1st instance on the consideration of criminal cases Form No. 1 USD in the Volgograd region for 2003, 2004.

5 Tsvetinovich A.L. Serving an additional sentence under conditional conviction // Improvement legal framework criminal justice. Yaroslavl, 1988. S. 19-28.

7 Golodniuk M.N., Goryainova E.A. Questions of the theory and practice of assigning additional punishments in case of conditional conviction // Bulletin of the Moscow University. 1987. No. 2. S. 39.

8 Tkachevsky M.Yu. The concept of conditional condemnation // Ibid. 2003. No. 3. S. 39.

9 Burlakova I.A. Conditional condemnation: theo-retico-legal and practical problems: Avtoref. dis.... cand. yurvd. Sciences. M., 2003. S. 18.

In connection with the issues that arise for the courts when applying the norms of Chapter 46 of the Code of Criminal Procedure of the Russian Federation (“Appeal to the execution of sentences, rulings and decisions”) and Chapter 47 of the Code of Criminal Procedure of the Russian Federation (“Proceedings to consider and resolve issues related to the execution of a sentence”), and in in order to ensure the unity of judicial practice Plenum of the Supreme Court Russian Federation, guided by Article 126 of the Constitution of the Russian Federation,

decides:

1. Draw the attention of the courts to the fact that issues related to the execution of a sentence are regulated not only by the relevant norms of the Code of Criminal Procedure of the Russian Federation, the Criminal Code of the Russian Federation and the Penitentiary Code of the Russian Federation, but also by other regulatory legal acts(for example, the Law of the Russian Federation of July 21, 1993 N 5473-I "On institutions and bodies executing criminal penalties in the form of deprivation of liberty", federal law of July 15, 1995 N 103-FZ "On the detention of suspects and accused of committing crimes", Federal Law of October 2, 2007 N 229-FZ "On enforcement proceedings", Law of the Russian Federation of January 17, 1992 N 2202-I "On the Prosecutor's Office of the Russian Federation", Federal Law of November 21, 2011 N 323-FZ "On the Basics of Protecting the Health of Citizens in the Russian Federation", Decree of the Government of the Russian Federation dated June 16, 1997 N 729 "On approval of the Regulations on penitentiary inspections and the standard for their staffing", by order of the Ministry of Justice of the Russian Federation of May 20, 2009 N 142 "On approval of the Instructions for organizing the execution of punishments and measures of a criminal law nature without isolation from society", by order of the Ministry of Justice of the Russian Federation dated

October 11, 2010 N 258 "On the approval of the Instructions for the organization of the execution of punishment in the form of restriction of freedom".).

2. Courts should keep in mind that consideration and resolution of issues related to the execution of a sentence is carried out in the form of justice in an open court session, except for the cases specified in Part 2 of Article 241 of the Code of Criminal Procedure of the Russian Federation. In this regard, the court explains to the participants in the court session their rights, duties and responsibilities and ensures the possibility of exercising these rights (Part 1 of Article 11 of the Criminal Procedure Code of the Russian Federation).

By virtue of Part 2 of Article 10 of the Penal Code of the Russian Federation, in the execution of sentences, convicts are guaranteed the rights and freedoms of citizens of the Russian Federation with exceptions and restrictions established by criminal, penitentiary and other legislation of the Russian Federation. With regard to the realization by convicts of the right to judicial protection criminal procedure and penal legislation does not contain any exceptions or restrictions and does not allow for a decrease in the level of guarantees of the right to judicial protection for convicts when resolving issues related to the execution of a sentence by the court.

3. In cases where the person who filed the appeal (cassation) complaint (representation) withdraws it (him) on the basis of part 3 of Article 359 of the Code of Criminal Procedure of the Russian Federation, in the absence of complaints from other persons or the presentation of the prosecutor, the decision of the court of first instance, based on the provisions of Articles 390, 391 of the Code of Criminal Procedure of the Russian Federation, is considered to have entered into legal effect after 10 days - the period of its appeal in the appeal (cassation) procedure. It does not matter how long before the start court session, court of the appellate (cassation) instance, the complaint (representation) is withdrawn (within the period established for appeal, before or after the criminal case is sent to the court of the appellate (cassation) instance).

4. Taking into account the provisions of Part 2 of Article 391 of the Code of Criminal Procedure of the Russian Federation and paragraph 53 of Article 5 of the Code of Criminal Procedure of the Russian Federation, interlocutory judgments that are not subject to independent appeal in the appellate (cassation) procedure shall enter into force and apply for execution immediately. Their legality and validity may be checked by the court of second instance simultaneously with the verification of the legality and validity of the final decision in the case.

5. Explain to the courts that the decision to commute the sentence is made taking into account the nature and extent of public danger the crime for which the person was convicted, the identity of the perpetrator, as well as the reasons why the convicted person evaded serving his sentence.

When replacing punishment in the form compulsory works, correctional labor or restriction of freedom, appointed as the main type of punishment, imprisonment during the term of serving condemned punishment in the form of deprivation of liberty, the time of his detention, as well as the time of independent passage of the convict to the colony-settlement (Part 3 of Article 75 of the Penal Code of the Russian Federation) is included. If the convicted person fled the place of residence and was detained, then specified period calculated from the moment of his actual detention. The term of punishment not served by the convict should be calculated on the basis of the term of the sentence actually served by him, indicated in the materials submitted by the penitentiary inspection. The validity of the calculation of such a period is checked by the court.

The issue of replacing the unserved period of compulsory labor, corrective labor or restriction of liberty with deprivation of liberty shall be resolved in the presence of the person in respect of whom such a decision is made.

6. The type of correctional institution when replacing the punishment in the form of compulsory labor, correctional labor or restriction of liberty, imposed as the main punishment, with deprivation of liberty is determined in accordance with Article 58 of the Criminal Code of the Russian Federation.

7. If the punishment imposed on the convict in the form of deprivation of liberty was replaced in accordance with Article 80 of the Criminal Code of the Russian Federation with a restriction of liberty, from serving which he maliciously evaded, the court, on the proposal of the penitentiary inspection, considers the issue of replacing this punishment with deprivation of liberty (Part 5 of Article 58 of the Criminal Code of the Russian Federation ).

8. When deciding on the release of a convict from punishment due to illness (paragraph 6 of Article 397 of the Code of Criminal Procedure of the Russian Federation), the court checks whether the disease indicated in the medical report of a special medical commission or institution of medical and social expertise is included in the List of diseases that prevent serving a sentence , established by the Decree of the Government of the Russian Federation of February 6, 2004 N 54 "On medical examination convicts who are presented for release from punishment due to illness", and also takes into account other circumstances that are important for resolving the petition or presentation on the merits.

Explain that the court does not have the right to refuse to accept the convict's petition for release from punishment due to illness, sent by him directly to the court, due to the lack of documents (conclusions of the medical commission or institution of medical and social examination, the personal file of the convict), which, in case of serious illness of the convict in accordance with Part 6 of Article 175 of the Penal Code of the Russian Federation is obliged to submit the administration of the institution or body executing the punishment. In such cases, the court should send a copy of the petition of the convicted person to the institution or body executing the sentence, for subsequent immediate submission by the administration (official) to the court of the relevant materials.

9. If a conditionally convicted person has fled from control, the court, considering the submission of the penitentiary inspectorate or the command of the military unit on the abolition of the conditional sentence and the execution of the sentence imposed by the court's verdict (paragraph 7 of Article 397 of the Code of Criminal Procedure of the Russian Federation), must proceed from the provision of part 6 of Article 190 Criminal Code of the Russian Federation that a conditionally convicted person whose location has not been established for more than 30 days is recognized as hiding from control.

The court should also check the completeness of the initial measures taken by the penitentiary inspection in accordance with Part 5 of Article 188 of the Penal Code of the Russian Federation to establish his location and reasons for evasion. Such activities, in particular, include interviews with relatives, neighbors and other citizens who may know something about the whereabouts of a conditionally convicted person, checking at the place of work (study) of the convicted person, inquiries to various organizations (address bureaus, military registration and enlistment offices, morgues, hospitals, police departments). If the measures taken to conclude that the convicted person has fled from control are not enough, then the court refuses to satisfy the submission.

Taking into account the provisions of Article 18 of the Penal Code of the Russian Federation, the announcement of the search for a conditionally convicted person who has fled from control is not among the issues to be considered by the court when executing the sentence.

10. The decision to cancel the conditional conviction and the execution of the punishment imposed by the verdict of the court in relation to the conditionally convicted person who has escaped control during the probationary period may be taken by the court even if the consideration of this issue is carried out after the expiration of the probationary period established for him.

11. If in the course of consideration by the court of the submission to cancel the conditional sentence in accordance with Part 3 of Article 74 of the Criminal Code of the Russian Federation it is established that the facts of violation of public order by the conditionally convicted person or failure to fulfill the duties assigned to him by the court were not of a systematic nature, he took measures to find employment, to undergoing treatment for alcoholism, drug addiction, etc., did not hide from control, then the court has the right, taking into account the opinion of the representative of the penitentiary inspectorate (representative of the command of the military unit) and the prosecutor, with his participation in the court session, without canceling the probation, extend the probationary period for a conditionally convicted person (Part 2 of Article 74 of the Criminal Code of the Russian Federation).

12. When considering the issue specified in paragraph 7 of Article 397 of the Criminal Procedure Code of the Russian Federation, when an additional type of punishment was assigned to a conditionally convicted person and before the expiration of the probationary period he proved his correction by his behavior, the court decides to cancel the conditional conviction and to remove the conviction from the convicted person (Part 1 article 74 of the Criminal Code of the Russian Federation) only after serving an additional sentence.

13. In accordance with part 7 of article 73 of the Criminal Code of the Russian Federation and on the basis of paragraph 8 of article 397 of the Code of Criminal Procedure of the Russian Federation, the court, on the proposal of the body exercising control over the behavior of a conditionally convicted person, may, during the probationary period, completely or partially cancel or supplement the obligations previously established for a conditionally convicted person.

The court has the right to cancel in whole or in part the obligations imposed on the conditionally convicted person if it establishes, for example, that the conditionally convicted person conscientiously fulfills the duties assigned to him by the court, is positively characterized at the place of residence, work, study or service, there have been no complaints about his behavior, and also if will establish other circumstances (pregnancy or childbirth, achievement retirement age, disability, etc.).

The court has the right to supplement the obligations previously established for a conditionally convicted person if it comes to the conclusion that the conditionally convicted person did not report to the penitentiary inspection or the command of the military unit about his behavior, did not fulfill the duties assigned to him by the court, did not appear when summoned to the penitentiary inspection , and also if he establishes other circumstances that testify to the expediency of imposing other duties on a conditionally convicted person (Part 2 of Article 190 of the Penal Code of the Russian Federation).

14. When resolving the issues specified in paragraph 8 of Article 397 of the Code of Criminal Procedure of the Russian Federation, it should be borne in mind that, by virtue of part 3 of Article 58 of the Criminal Code of the Russian Federation, when deciding to supplement the restrictions previously established for the convict, the court finds out exactly what violations specified in part 1 Article 58 of the Penal Code of the Russian Federation, admitted by the convict or any other circumstances indicate the appropriateness of such a decision (for example, the convict is negatively characterized, has a tendency to drink alcohol), and indicates in the decision the motives for the decision.

15. When resolving the issue of release from punishment due to the expiration of the limitation period for a guilty verdict in accordance with Article 83 of the Criminal Code of the Russian Federation (Item 9 of Article 397 of the Criminal Procedure Code of the Russian Federation), the court checks whether the convict has evaded serving the sentence. A convicted person may be released from punishment only if the sentence was not executed for reasons beyond his control.

16. The courts should keep in mind that when considering the issues referred to in paragraph 13 of Article 397 of the Criminal Procedure Code of the Russian Federation, mitigation of punishment due to the issuance of a criminal law that has retroactive, involves the application of the general principles of sentencing.

17. When resolving the issue of releasing a convicted person from punishment or mitigating his punishment due to the issuance of a retroactive criminal law, the court bases the decision only on the circumstances established by the verdict of the court that imposed the punishment that has entered into legal force, and is not entitled to assess the correctness of the application of the criminal law by this court. law.

If in the course of considering the petition of the convicted person or the presentation authorized bodies or officials If it is established that the published law does not improve the situation of the convict, then the court shall issue a decision to refuse to satisfy such a petition or presentation.

A copy of the court ruling issued on the issues specified in paragraph 13 of Article 397 of the Code of Criminal Procedure of the Russian Federation is sent both to the body executing the punishment and to the court that passed the sentence for inclusion in the materials of the criminal case.

18. If the convict re-applies with a petition for release from punishment or for mitigation of punishment on the basis of paragraph 13 of Article 397 of the Code of Criminal Procedure of the Russian Federation, when, at the request filed earlier on the same grounds, the court has already issued a decision to refuse to satisfy it, such a petition shall be considered is not eligible and must be refused. If the specified circumstance is established in the course of consideration by the court of the petition of the convicted person, then the proceedings on such a petition are subject to termination.

19. In cases where a new criminal law eliminating the criminality of an act, mitigating punishment or otherwise improving the situation of a person who committed a crime is not applied by the court that passed the sentence, such an issue cannot be considered according to the rules established by Chapter 47 of the Code of Criminal Procedure of the Russian Federation.

20. The court has the right, in the manner of execution of the sentence, to mitigate the sentence imposed on the convict on the basis of the totality of sentences on the basis of Article 70 of the Criminal Code of the Russian Federation, as well as on the basis of the totality of crimes on the basis of part 5 of Article 69 of the Criminal Code of the Russian Federation, when earlier by the court in the execution of the sentence or by the supervisory court the previous sentence was changed with the mitigation of the imposed sentence (for example, if the previous sentence is brought into line with the new criminal law).

21. Pursuant to paragraph 7 of Article 44 of the Criminal Code of the Russian Federation and on the basis of paragraph 14 of Article 397 of the Criminal Procedure Code of the Russian Federation with a request to reduce the amount of deductions from wages of a convicted person in the event of a deterioration in his financial situation, the penitentiary inspection, sentenced to corrective labor or the administration of the organization in which he works, has the right to apply to the court.

The deterioration of the financial situation of the convict may be evidenced, for example, by the material costs incurred by him in connection with the illness or injury of both the convict himself and his family member, the recognition of an able-bodied family member as disabled, the birth of a child or the appearance of other dependents of the convict, the collection of alimony from him, size reduction. wages, destruction of property or causing damage to the convict and his family as a result of a fire or natural disaster.

The decision to reduce the amount of deductions is made by the court, taking into account all the income of the convict.

22. Draw the attention of the courts to the fact that each sentence in the case must contain answers to all questions that are subject to resolution when it is decided in accordance with Article 299 of the Code of Criminal Procedure of the Russian Federation and which must be resolved and set out in such a way that there are no difficulties in the execution of the sentence. Based on this and taking into account the provisions of paragraph 15 of Article 397 of the Code of Criminal Procedure of the Russian Federation, the courts have the right, in the manner prescribed by Article 399 of the Code of Criminal Procedure of the Russian Federation, to resolve issues that do not affect the essence of the sentence and do not entail a deterioration in the situation of the convicted person, for example:

a) on the application of an amnesty act, if its application is mandatory and the court, when passing the sentence, did not enter into the discussion of this issue;

b) on the abolition of the measure of restraint in cases where, upon acquittal of the defendant or his conviction with release from punishment, the court verdict does not contain an indication of the abolition of the measure of restraint;

c) on the abolition of security measures civil suit or possible confiscation of property, if these measures are not canceled upon the issuance of an acquittal or dismissal of a claim or non-application of confiscation by a sentence;

d) on the inclusion of the time of detention in the term of serving the sentence, if the court made an inaccuracy in its calculation;

e) on the set-off of the served sentence when imposing a sentence based on the totality of sentences, if such set-off was not made by a court verdict or was made inaccurately;

f) o physical evidence if these issues are not resolved by the court in the verdict;

g) sizing and distribution procedural costs if these issues are not resolved in the judgment of the court;

h) on the remuneration of the defense counsel who participated in the case by appointment of the court, if this issue is not resolved simultaneously with the pronouncement of the verdict;

i) about the fate of the children of the convicted person left without supervision, and their transfer to the care of relatives or other persons or institutions in cases where the court did not resolve these issues when passing the sentence;

j) on the adoption of measures to protect the property or dwelling of the convicted person, left unattended, when the court did not resolve this issue when passing the sentence;

k) on the release of property from attachment in cases where the attachment is imposed on property, on which, according to the law, foreclosure is not allowed;

l) specifying the restrictions and obligations imposed on a convict sentenced to imprisonment in accordance with part 1 of article 53 of the Criminal Code of the Russian Federation (for example, specifying the time of day during which the convicted person is ordered not to leave home, specifying the number of appearances in a specialized state body, supervising the serving of sentences by convicted persons, for registration);

m) on the elimination of errors made in the verdict when writing the last name, first name, patronymic or other biographical data of the convicted person, as well as clerical and arithmetical errors, if they are obvious and their correction cannot raise doubts.

In the event that the sentence does not indicate the type and amount of punishment, the amount of deduction from wages when assigning correctional labor, the restrictions specified in Article 53 of the Criminal Code of the Russian Federation, including mandatory ones, are not established when imposing a punishment in the form of restriction of freedom, such issues do not may be resolved on the basis of paragraph 15 of Article 397 of the Criminal Procedure Code of the Russian Federation.

23. Questions on clarifying doubts and ambiguities arising during the execution of the sentence are subject to consideration on petitions (representations) filed, in addition to the convicted (acquitted), by the prosecutor, lawyer, legal representative, victim, his representative, civil plaintiff and civil defendant and their representatives. , correctional institution, penitentiary inspection, other interested parties, as well as at the initiative of the court.

Such issues may be considered by the court if they arose during the execution of not only the sentence, but also another judgment(for example, a court order dismissing a criminal case, a court order scheduling a hearing, a preliminary hearing order, a property attachment order, a court decision in the execution of a sentence).

24. When resolving the issue referred to in paragraph 17 of Article 397 of the Code of Criminal Procedure of the Russian Federation, taking into account the provisions of Article 82 of the Criminal Code of the Russian Federation and Article 398 of the Code of Criminal Procedure of the Russian Federation, the court checks whether the convict complied with the conditions for the deferral of serving the sentence and whether his behavior during the period of such a delay proved his correction.

25. An application for an installment payment of a fine (Part 2 of Article 398 of the Code of Criminal Procedure of the Russian Federation), if this issue is not resolved in the verdict, is considered in the manner prescribed by Article 399 of the Code of Criminal Procedure of the Russian Federation. At the same time, the court checks the convict's arguments that the lump-sum payment of the fine is impossible for him. To this end, the court hears the explanations of the convict, if he participates in the court session, the explanations of other persons participating in the case, the opinions of the bailiff and the prosecutor (if he participates in the court session) and examines the submitted materials.

The decision on satisfaction of the convict's petition for an installment payment of the fine shall indicate the installment period and the amount of monthly payments.

26. In accordance with Part 1 of Article 396 of the Code of Criminal Procedure of the Russian Federation, the issues set out in paragraphs 1, 2, 9, 10, 11, 14, 15, 16 and 20 of Article 397 and in Article 398 of the Code of Criminal Procedure of the Russian Federation are resolved by the court that delivered the sentence. These issues may be resolved by justices of the peace if they have passed a verdict.

Solutions federal courts general jurisdiction on issues related to the execution of the sentence, taking into account the provisions of Articles 401, 402 and 413 of the Code of Criminal Procedure of the Russian Federation, they can be appealed in the manner established by Chapters 43, 45 and 48 of the Code of Criminal Procedure of the Russian Federation, and the decisions of justices of the peace, in addition, - in appeal(Chapter 44 of the Code of Criminal Procedure of the Russian Federation).

27. The issue of expunging a criminal record in accordance with Article 86 of the Criminal Code of the Russian Federation, based on the provision of part 1 of Article 400 of the Criminal Procedure Code of the Russian Federation, is resolved by the district (garrison military) court, as well as by the justice of the peace in criminal cases related to its jurisdiction, at the place of residence of the person, who has served his sentence, at the request of that person.

28. Explain to the courts that the provisions of Part 1 of Article 399 of the Criminal Procedure Code of the Russian Federation do not restrict the right of the convict to apply to the court with petitions to change the type of correctional institution appointed by the court's verdict (Item 3 of Article 397 of the Code of Criminal Procedure of the Russian Federation), to replace the unserved part of the sentence with more soft view punishment (Item 5 of Article 397 of the Code of Criminal Procedure of the Russian Federation), on the abolition of probation and the removal of a criminal record (Item 7 of Article 397 of the Code of Criminal Procedure of the Russian Federation, part 1 of Article 74 of the Criminal Code of the Russian Federation).

29. The courts should keep in mind that the provision of clause 2 of part 1 of article 399 of the Code of Criminal Procedure of the Russian Federation does not exclude the right of authorized state bodies and officials, regardless of the presence of the petition of the convicted person, to apply to the court with a proposal to bring the sentence pronounced in the criminal case in line with the new criminal law that eliminates the criminality of the act, mitigating punishment or otherwise improving the position of the person who committed the crime (Item 13 of Article 397 of the Criminal Procedure Code of the Russian Federation).

30. Taking into account the provisions of part 4 of article 399 of the Code of Criminal Procedure of the Russian Federation that the convicted person can exercise his rights with the help of a lawyer, issues related to the execution of the sentence may be considered by the court at the request of the lawyer.

31. If, after the court receives a petition or presentation on issues that, in accordance with Part 3 of Article 396 of the Criminal Procedure Code of the Russian Federation, are considered by the court at the place where the convicted person is serving his sentence, the convicted person is transferred to another correctional facility, the materials are considered by the court at the place of actual serving of their sentence. For these purposes, all materials are immediately sent to the court at the place where the convict is actually serving his sentence.

32. When a petition or presentation is received by the court on issues related to the execution of the sentence, the judge checks whether it is subject to consideration in this court, whether it was filed by the proper person, whether the documents necessary to resolve the issue on the merits and copies of the relevant documents are attached to it. court decisions.

If the received materials do not contain sufficient data for the consideration of the petition or presentation and it is impossible to fill them in the court session, the court, in the course of preparing for its consideration, returns these materials for appropriate processing.

In the absence of documents that are required to be submitted, the administration of the institution or body executing punishment, the court is not entitled to refuse to accept the petition of the convicted person, his legal representative or lawyer.

The court assists in the collection of information that cannot be obtained or demanded by the convict, his legal representative or lawyer, or the administration of the institution or body executing the sentence.

33. In the course of preparation for the court session, the court decides on the place, date and time of the court session, on notifying the participants in the court session, and in necessary cases- on the form of participation of the convict in the court session.

34. To draw the attention of the courts to the fact that the withdrawal by the convict, his legal representative or, with their consent, the lawyer of the petition or the withdrawal by the institution or body executing the sentence of the submission on issues related to the execution of the sentence does not prevent them from subsequently applying to the court with such a petition or representation.

35. Based on the provisions of Part 4 of Article 7 of the Code of Criminal Procedure of the Russian Federation, the decision of the judge, issued on the basis of the results of consideration of issues related to the execution of the sentence, must be lawful, justified and motivated. Taking into account the fact that, in accordance with the procedure established by Chapter 47 of the Criminal Procedure Code of the Russian Federation, the court decides, in particular, on the issues of replacement, imposition or mitigation of punishment, release from serving a sentence, the decision of the judge must also meet the requirement of justice.

36. In the ruling adopted by the court in accordance with Article 399 of the Code of Criminal Procedure of the Russian Federation, the issue of determining the amount and distribution of procedural costs should be decided in accordance with Articles 131 and 132 of the Code of Criminal Procedure of the Russian Federation.

37. The court has the right to issue a special ruling (determination) if, when considering materials on issues related to the execution of the sentence, the circumstances specified in Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation are revealed.

38. In connection with the adoption of this decision, to recognize as invalid on the territory of the Russian Federation the decision of the Plenum of the Supreme Court of the USSR of December 22, 1964 N 18 "On some procedural issues that have arisen in judicial practice during the execution of sentences."

Chairman of the Supreme Court of the Russian Federation

V. Lebedev

Secretary of the Plenum

Supreme Court judge

Russian Federation

Offenders who have received a suspended sentence can count on the abolition of probation under Art. 74 of the Criminal Code of the Russian Federation.

What is this important document? What are the grounds for early termination of a criminal record?

Conditional conviction is a special measure of punishment in which the offender is not isolated from society, but continues to lead his usual life.

But at the same time, he is obliged to comply with all the standards and requirements of the court. They may be:

If there is a conditional conviction, a person cannot work in state and law enforcement agencies, travel to other countries and run for election.

It should also be noted that some employers categorically refuse to hire people with a criminal record.

According to the legislation in force on the territory of Russia in 2020, any convicted person can extinguish his conviction or remove his probation.

In Art. 74 of the Criminal Code of the Russian Federation (parts 4, 5), which governs this question, the main ways that allow the court to correct an earlier decision are indicated. These include:

1. Rehabilitation of the convict.
2. Extension of probationary period.
3. The presence of compromising signs.

For each of these methods, the law provides for certain legal grounds. Let's consider them in more detail.

Cancellation of the conditional term in connection with the rehabilitation of the convict

Rehabilitation should be understood as the good behavior of the offender, strict compliance with all requirements and rules prescribed by the court, a conscientious attitude to training, as well as the absence of new crimes and comments from the supervisory authority.

In this case, the punishment is canceled automatically at the end of the probationary period, and the conviction itself is extinguished on the basis of paragraph "a" part 3 of Art. 86 of the Criminal Code of the Russian Federation.

To speed up the process, the criminal must prove his adequacy, not refuse to carry out certain instructions, show seriousness, responsibility and attentiveness.

But the main thing is to show that he sincerely repents of the committed act and tries to do everything to correct the current situation. But a demonstration of strength, aggression and negligence will have a different effect and will not help you in any way.

The need to abolish probation or extend the probationary period arises when a citizen commits an administrative offense or evades the performance of his duties.

In this case, the supervisory authority gives him a written warning about the possibility of changing the measure of restraint and sends a submission to the court to extend the probationary period.

The trial period can only be extended by 1 year. In some cases, the court may refuse the conditional correctional inspection this submission.

The reason for the cancellation of probation and the execution of punishment is:

Terms of repayment of probation

Arbitrage practice shows that in order to cancel the conditional sentence, half of the appointed period (from 6 months to 8 years) must pass.

As a rule, this time is enough for the violator to realize his guilt and refuse to violate the law in the future. The countdown must begin from the moment the verdict enters into force.

To have the conditional conviction lifted, you must apply to the court or the local police department. At the same time, you need to file a petition to cancel the conditional conviction and remove the criminal record - it is written according to the accepted model and contains the following information:

• Characteristics from the place of residence, study and work;
• Diplomas;
• Extracts of orders for incentives;
• Certificates proving that a citizen follows the law;
• Testimony of the district police officer, which refers to the behavior of the convict;
• Certificates from the hospital about the state of health;
• Characteristics of the UII organs.

The submission of the FIA ​​on the abolition of probation is considered within 3-5 days, after which the decision of the commission is announced to the convict.

Reasons for refusal are:

Refusal to cancel the conditional sentence must be motivated.

Consequences of expunging a criminal record

In case of early repayment of a conditional conviction, absolutely all restrictions are removed from a citizen convicted of any crime.

True, it is almost impossible to remove this information from the database, which can become a serious obstacle when applying for some types of work.

Withdrawal of data on the criminal record of a citizen is possible only with the permission of the court!

As you can see, it is not so difficult to remove a conditional sentence before the end of the probationary period. It is enough to completely reconsider your behavior and comply with all court orders.

received
fee 22%

Hello Alexey!

According to the Criminal Code of the Russian Federation, the law provides for the abolition of a suspended sentence ahead of time

Article 74

[Criminal Code of the Russian Federation] [Chapter 10] [Article 74]

1. If, before the expiration of the probation period, the conditionally convicted person has proved his correction by his behavior, compensated for the harm (in full or in part) caused by the crime, in the amount determined by the court decision, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional conviction and on the removal of a criminal record from a convicted person. At the same time, conditional conviction may be canceled after at least half of the established probationary period.

Well, the judicial practice, of course, in most cases is not in favor of the convicts.

At the same time, not only the convict, but the employees of the FSIN inspection can file a complaint.

Here, for example, is the case when the inspection itself applied to the court for the removal of a criminal record, at the beginning the court refused to satisfy the petition, but the higher court granted the petition and canceled the conditional sentence ahead of schedule.

Alexei

I recommend that you contact a lawyer, preferably through friends. As a rule, lawyers have a good relationship with law enforcement, and they can try to give you a positive reference, especially in court, the opinion of the inspectorate of the Federal Penitentiary Service is important.

Chat

lawyer, Samara

Chat

1 0

Chat

Free assessment of your situation

lawyer, Samara

Chat

0 0

Alexey, hello!

Is it true that in practice the court practically does not cancel the rest of the term for anyone?
Alexei

Alas, it is. Judicial practice under Part 1 of Art. 74 of the Criminal Code of the Russian Federation is completely negative. The courts refuse to satisfy the requests of the FIA ​​or the convicts themselves, apparently proceeding from the fact that the conditional sentence itself is already sufficiently mitigating, so softening it even more is nonsense. The decisions of the courts of general jurisdiction remain unchanged in the appeal.

Here are examples, as well as the rationale of the court on this issue:

Appeal ruling of the Moscow City Court dated April 28, 2015 in case No. 10-5694

Having considered the submitted materials fully and comprehensively, the court did not see any grounds for satisfying the petition, indicating the reasons for the decision, in particular, noting that such circumstances as the exemplary behavior of the convict during the probationary period, as well as serving half of the probationary period appointed by the court, cannot serve as unconditional grounds for the cancellation of a suspended sentence and the removal of a criminal record. In addition, in accordance with the provisions of the criminal law, the abolition of a suspended sentence and the removal of a criminal record from a convicted person before the expiration of the probationary period is the right of the court, and not its duty.

Appeal ruling of the Moscow City Court dated April 15, 2015 in case No. 10-3765/15

As follows from the submitted materials, K.S. departed more than half
probationary period, during which he was not involved in
administrative responsibility, timely appeared for registration in
penitentiary inspection, did not change without notice
penitentiary inspection of the place of residence, registration and
work, positively characterized.
At the same time, the position of the court contained in the decision about the insufficiency for a convincing conclusion about the correction of the convict of that period of time,
which has passed since the departure of half established by the court for K.S.
probationary period, based on the submitted materials,
investigated at the court session, in which there are no sufficient
data indicating that the convicted K.S. during the period
probationary period, by his exemplary behavior, he proved his full
correction, as well as indicating the absence of the need
application of measures of state coercion against him.
Positive characteristics from the place of work and residence, timely appearance at the penitentiary inspection, as well as the lack of information about
attracting K.S. to criminal and administrative liability, not
can serve as sufficient evidence of the impeccability
behavior of the convict and proving his correction.
In addition, according to the meaning of the law, the basis for the abolition of probation
is not the correction of the convicted person, which consisted in his exemplary
behavior, but recognition by the court of the fact that for its
correction, such a person does not need to fully serve the appointed
court of punishment.

Alas, I see no chance to change anything in the position of the courts.

Good evening!

Chances are slim. But attach all the evidence you can.

An example from judicial practice.

Based on it, it is important for which crime you were convicted, whether it belongs to the category of serious;

The behavior of the convict in everyday life, the time spent, the social circle, the conditions of his life and the immediate environment are assessed.

Material No. 4/7-4/2015
P O S T A N O V L E N I E
city ​​of Lipetsk June 02, 2015 a
Judge of the Sovetsky District Court of the city of Lipetsk Zolotareva M.V., with the participation of the assistant prosecutor of the Sovetsky District of the city of Lipetsk Plotnikov R.V., convicted Onofreychuk D.G., with the secretary Shishkina I.V., as well as a representative of the<адрес>FKU UII UFSIN of Russia for<адрес>by proxy Kalinina T.Yu., having considered in open court the presentation of the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>FULL NAME5 on the abolition of probation with the removal of a criminal record
Onofreychuk D.G., DD.MM.YYYY year of birth, native<адрес>, Russian, citizen of the Russian Federation, unmarried, having a secondary specialized education, working as a sawmill sawer IP FULL NAME6, registered and residing at the address:<адрес>, convicted: DD.MM.YYYY<адрес> <адрес>according to part 2 of Art. 228 of the Criminal Code of the Russian Federation to 04 years in prison, with the application of Article 73 of the Criminal Code of the Russian Federation conditionally with a probationary period of 04 years,
INST A N O V&L:
By verdict<адрес> <адрес>from DD.MM.YYYY Onofreychuk D.G. convicted under Part 2 of Art. 228 of the Criminal Code of the Russian Federation to 04 years in prison, without a fine and restriction of freedom, with the application of Article 73 of the Criminal Code of the Russian Federation conditionally with a probationary period of 04 years. The convict has the following duties: to appear for registration at the body that monitors the behavior of probationers, not to change his permanent place of residence without notifying the specialized state body that monitors the behavior of probationers, not to visit public places from 22:00 to 06:00.
According to the head of the branch<адрес>FKU UII UFSIN of Russia for<адрес>FULL NAME5, DD.MM.YYYY convicted Onofreychuk D.T. was registered with the inspectorate and, against signature, the procedure and conditions for serving the sentence were explained to him, the duties imposed on him by the court verdict, and he was also warned that in case of non-fulfillment of these requirements, violation of public order, he could be extended a probationary period, or conditional the conviction may be set aside and the punishment imposed by the court's sentence applied.
During the probationary period of punishment convicted Onofreychuk D.T. he proved himself on the positive side, did not evade the duties assigned to him by the court, and appeared for registration on time. During the period of probation, he did not allow administrative offenses, did not commit repeated crimes. According to the place of work and place of residence, he is characterized positively, there were no complaints from the neighbors. To the penitentiary inspection from the convicted Onofreychuk D.T. received an application for the abolition of probation with the removal of a criminal record. Convicted Onofreychuk D.G. by his behavior he proved his correction, and has now served half of his probationary sentence.
At the hearing, the representative of the branch<адрес>FKU UII UFSIN of Russia for<адрес>Kalinina T.Yu supported the submission, asked the court to cancel the probation Onofreichuk DG. and remove the conviction.
Convicted Onofreychuk D.G. asks to satisfy the submission of the inspection.
The prosecutor asked to satisfy the submission of the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>on the abolition of probation Onofreychuk D.G. and removal of a criminal record, arguing that the last violations established order did not have and served at least half of the probationary period.
The court, having listened to the opinion of the participants in the process and having studied the case materials, considers it necessary to refuse to satisfy the submission of the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>on the abolition of the conditional conviction and on the removal of the conviction of the convicted Onofreychuk D.G.
In accordance with Part 1 of Art. 74 of the Criminal Code of the Russian Federation, if before the expiration of the probationary period, the conditionally convicted person has proved his correction by his behavior, the court, on the proposal of the body exercising control over the behavior of the conditionally convicted person, may decide to cancel the conditional conviction and to remove the conviction from the convicted person. At the same time, the conviction may be canceled after at least half of the established probationary period.
The Court takes into account the nature and degree of public danger committed by Onofreychuk D.G. a crime that belongs to the category of serious and is associated with illicit trafficking in narcotic drugs and infringing on the security of public health and public morality. In itself, the fact that the convicted Onofreychuk D.G. has served at least half of the established probationary period, is fulfilling the duties assigned to him by the court verdict, does not give the court grounds to recognize that he has firmly embarked on the path of correction and does not need further fulfillment of the duties assigned to him during the probationary period, since the duties imposed by the court verdict on conditionally convicted Onofreychuk D.T. duties, in addition to educational impact, also have legal consequences, since their non-fulfillment entails the abolition of conditional condemnation.
In addition, submitted by the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>to the court materials do not allow the court to fully state that Onofreychuk D.T. firmly embarked on the path of correction, since the penitentiary inspection did not fully study the personality of the convict, his living conditions and his immediate environment. The materials do not contain information about the convict's behavior in everyday life, the time of his passage, the circle of contacts, which makes it possible to judge his correction, the possibility of early cancellation of the conditional conviction and the removal of his criminal record. This fact is also confirmed by the fact that the inspectorate does not have information about the change of convicted Onofreychuk D.G. place of work, according to the convict since March 2015.
Under these circumstances, the court concludes that the convicted Onofreychuk D.T. needs further performance of duties during the probationary period assigned to him by a court verdict, and the representation of the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>on the abolition of probation and the removal of a criminal record is premature.
Based on the foregoing, guided by paragraph 7 of Art. 397, Art. 399 Code of Criminal Procedure,
P O S T A N O V I L:
Satisfying the submission of the head of the branch for<адрес>FKU UII UFSIN of Russia for<адрес>on the abolition of the conditional conviction and on the removal of the conviction of the convicted Onofreychuk D.G. refuse.
The decision can be appealed on appeal to the Lipetsk regional court within 10 days from the date of its announcement by filing a complaint or presentation to the Sovetsky District Court of the city of Lipetsk.
judge /signature/ M.The. Zolotarev
<данные изъяты>

Accordingly, the following questions arose: 1. Is it true that in practice the court practically does not cancel the rest of the term for anyone? I tried to search for some kind of jurisprudence or statistics on the Internet, but I could not find anything, since I do not have specialized knowledge, and most likely this is done in paid programs such as a consultant.
Alexei

Alexey, good night. Not entirely true, of course, in most cases, refusals to satisfy such applications dominate:

Appeal ruling of the Moscow City Court dated March 23, 2015 N 10-3037/15

Appeal ruling of the Moscow City Court dated March 16, 2015 N 10-3027/15
Circumstances: The resolution denied the petition for the abolition of the probationary period and the removal of a criminal record.
Appellate ruling: The ruling was upheld.
Appeal ruling of the Moscow City Court dated November 10, 2014 N 10-15369/14
Circumstances: The resolution denied the petition for the abolition of probation and early removal of a criminal record.
Appellate ruling: The ruling was upheld.
Appeal ruling of the Moscow City Court dated 05.11.2014 in case N 10-14431/14
Circumstances: The resolution denied the satisfaction of the petition for the abolition of probation and the removal of a criminal record.
Appellate ruling: The ruling was upheld.

But there are also good practices.

Appeal ruling of the Moscow City Court of December 11, 2014 in case No. 10-16870/2014
Circumstances: The resolution satisfied the submission on the abolition of probation and the execution of the sentence imposed by the court.
Appellate ruling: The ruling was upheld.

2. Since my term has just begun, I want to know what I need to do to increase the chances of Art. 74 of the Criminal Code, part 1?
Alexei

In principle, all your actions are set out in the very norm of Art. 74 of the Criminal Code of the Russian Federation

Conscientious attitude to the execution of the duties assigned by the court during the probationary period;

Non-commitment administrative offenses and especially crimes;

Employment, etc.

Good evening. Thanks for the interesting question. I reviewed the judicial practice, including for Last year in various regions of the Russian Federation. Unfortunately, if there were isolated cases of a positive resolution of such a petition by the convict or his lawyer, then the second instance appeals prosecutor's office overturned the decisions of the first instance.

What do the courts write mainly in their rulings on the refusal of such a statement? court of appeal considers it justified, since the absence of the convicted person committing new crimes and offenses, the appearance for registration at the penitentiary institution, compliance with the procedure and conditions for serving the sentence are a prerequisite for serving the suspended sentence and cannot in themselves serve as a basis for canceling the conditional sentence. Such convincing data, allowing to draw a conclusion about the correction of the convict, was not presented to the court of first instance and is not currently seen either. Confirmation by the representative of the penitentiary institution of the observance of the conditions and procedure for serving the sentence by the convicted Fursenko R.S. also does not indicate the unconditional correction of the convict. From the content of the norm enshrined in Part 1 of Art. 74 UKRF, it follows that the decision of the court to cancel the conditional conviction and remove the conviction is a right, not an obligation of the court. The conclusions of the court of first instance are properly motivated”

Those. if you do not violate the rules of serving a sentence, do not commit new administrative or criminal offenses, then this is how it should be and this is not a merit in connection with which you should be released from probation. You will have to not only be positively serving a sentence, but also take such corrective actions so that the court is convinced unconditionally of your correction and getting on the right path. And what these actions need to be done specifically - it is not deciphered anywhere, and there is also no explanation from the RF Armed Forces on this matter.

Therefore, your thoughts about volunteering, charity events are not without meaning. because slightly out of the ordinary in such cases.

I wish you success. And as they say - who does not try, then does not get the result.

Hello,

What is your article?

What I know in practice: characteristics from the place of work, study, district police officer, of course, are considered by the court, but insofar as ... All these certificates of participation in public activities, if any, also apply, but the number of these papers will not affect the court's decision in any way. It is important that you are not attracted to the adm. responsible for this period, did not violate public order.

The Federal Penitentiary Service almost never goes to court on his own, the convict himself comes out. It is important that the inspector of the Federal Penitentiary Service spoke positively about you, did not object to the early removal of a criminal record. The prosecutor is also called, who also expresses his opinion.

Depending on the article of the convict, the court is more interested in the question - whether the damage, the harm caused by the crime has been compensated.

Although Art. 74 and provides for the possibility of applying for removal of probation after at least half of the term, but the real chances of cancellation are only for the last 11-6 months before the end of the term.

Chat

Free assessment of your situation

lawyer, St. Petersburg

Chat

1 0

Chat

Free assessment of your situation

lawyer, St. Petersburg

Chat

0 0

received
fee 22%

Hello! Tell me, under what article are you convicted? This affects the cancellation of the probationary period.

Chat

Free assessment of your situation

Supreme Court of the Republic of Kalmykia (Republic of Kalmykia) - Criminal

Judge Churyumova K.A. No. 44U-21/15

Speaker Govorov S.I.

RESOLUTION

OF THE PRESIDIUM OF THE SUPREME COURT

REPUBLIC OF KALMYKIA

Presidium of the Supreme Court of the Republic of Kalmykia composed of:

presiding - Petrenko V.L.,

members of the Presidium - Muchaeva M.N., Sangadzhieva A.V.,

Kochenkova L.D., Pyurveeva A.A.,

examined in open court the case file on the cassation submission of the First Deputy Prosecutor of the Republic of Kalmykia Zhilin C.GN. to the decision of the Gorodovikovskiy District Court of the Republic of Kalmykia dated May 27, 2015 and the appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Kalmykia dated July 9, 2015, which, in satisfying the submission of the head of the branch for the Gorodovikovskiy District of the FKU UII UFSIN of Russia in the Republic of Kalmykia, to cancel in relation to Savoshevich S.V. suspended sentence and the execution of the sentence imposed by the sentence is denied.

AT cassation submission First Deputy Prosecutor of the Republic of Kalmykia Zhilin S.N. raises the question of the abolition of the judgments held in relation to Savoshevich S.V. and sending materials to a new trial based on misapplied criminal law. The author of the submission draws attention to the fact that Savoshevich S.V. during the period of probation to imprisonment, despite the issuance of warnings by the penitentiary inspectorate to cancel the conditional sentence, he systematically violated the conditions and procedure for passing the probationary period: he was brought to administrative responsibility eight times for violating public order (Art. RF), for which the court repeatedly (three times) extended the probationary period and laid additional responsibilities. However, on March 13, 2015 Savoshevich S.V. was again brought to administrative responsibility for a similar offense, but the courts of first and appellate instances, not seeing a systematic violation of public order in the actions of the convicted person, unreasonably refused to satisfy the submission of the penitentiary inspection on the abolition of the conditional sentence and the execution of the sentence imposed on the grounds that that for previously committed violations, the convict has already been brought to justice by court decisions. He believes that the extension of the probationary period, the imposition of additional duties and the abolition of probation are a change in the form of criminal liability already imposed on the convicted person, and not any other liability. Therefore, these violations on the part of the convict should be taken into account when determining the systematic violation of public order (part 5 of article 190 of the Penal Code of the Russian Federation).

Having heard the report of the judge of the Supreme Court of the Republic of Kalmykia Saranov V.C., who outlined the circumstances of the case and the content of the court decisions, the motives for the cassation presentation and the decision to transfer the presentation to the court cassation instance, Speech by the First Deputy Prosecutor of the Republic of Kalmykia Zhilin S.N., who supported the cassation submission on the annulment of court decisions and the direction of materials for a new trial, Presidium of the Supreme Court of the Republic of Kalmykia

SET UP:

The verdict of the Gorodovikovskiy District Court of the Republic of Kalmykia dated October 14, 2013 Savoshevich C.The. convicted under Part 2 of Art. Special Part > Section IX. Crimes against public safety and public order > Chapter 25. Crimes against public health and public morals > Article 228. Illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs, psychotropic substances or their analogues, as well as illegal acquisition, storage, transportation of plants containing narcotic drugs or psychotropic substances, or parts thereof containing narcotic drugs or psychotropic substances" target="_blank"> 228 of the Criminal Code of the Russian Federation with the application of Art. to 3 years of imprisonment conditionally with a probationary period of 1 year 6 months. Savoshevich S.V. is entrusted with the following duties: at the place of residence, within three days from the date of entry into force of the sentence, to register with a specialized government agency, exercising control over the behavior of probationers; be registered at said authority twice a month; do not change permanent residence without notifying this authority; get registered with a doctor ****.

convicted Savoshevich C.The. was registered in the branch in the Gorodovikovskiy district of the FKU UII UFSIN of Russia in the Republic of Kalmykia (hereinafter referred to as the criminal executive inspection), on October 25, 2013 he was explained the procedure and conditions for serving the sentence, about which a subscription was selected.

By the decision of the Gorodovikovskiy District Court of the Republic of Kalmykia dated November 27, 2013, the submission of the penitentiary inspectorate to cancel S.V. Savoshevich was denied. probation and execution of the sentence imposed by the sentence, probation Savoshevich C.The. extended by three months for committing administrative offenses under Art. RF (appearing in a public place in a state of alcohol intoxication), for which on November 2 and 8, 2013 he was brought to administrative responsibility and subjected to administrative punishment in the form of a fine. The convict has additional obligations: not to visit places where alcohol is drunk, not to appear in a state of intoxication in public places and not to violate public order (case files 16-17).

By the decision of the same court dated May 23, 2014, in satisfaction of the submission of the penitentiary inspection to cancel in relation to Savoshevich C.The. conditional sentence and the execution of the sentence imposed by the sentence was denied, in connection with bringing to administrative responsibility on December 6, 2013 and April 28, 2014 under Art. In the Russian Federation, the probationary period for the convict was extended by two months with the imposition of an additional obligation - from 23:00 to 06:00 to stay at the place of residence (case file 26-27).

By the decision of the same court dated February 17, 2015, in satisfaction of the submission of the penitentiary inspection to cancel in respect of Savoshevich C.The. suspended sentence and the execution of the sentence imposed by the sentence was denied, for bringing to administrative responsibility on January 29 and February 7, 2015 under Art. In the Russian Federation, the convict's probationary period was extended by two months, he was assigned additional duties: to take measures for employment and undergo a course of treatment for *** from a doctor *** (case file 34-35).

March 13, 2015 Savoshevich S.V. again brought to administrative responsibility under Art. RF and subjected administrative penalty in the form of a fine.

By the decision of the Gorodovikovskiy District Court of the Republic of Kalmykia dated May 27, 2015, in satisfaction of the submission of the penitentiary inspection to cancel in relation to Savoshevich S.The. suspended sentence and the execution of the sentence imposed by the sentence denied, probation Savoshevich C.The. extended by two months.

The Appellate Resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kalmykia dated July 9, 2015, said ruling in respect of Savoshevich C.The. left unchanged.

The Presidium of the Supreme Court of the Republic of Kalmykia, having checked the materials of the case and discussed the arguments of the cassation submission, finds the appeal ruling subject to cancellation on the following grounds.

Such measures of a criminal law nature during a probationary period established during probation are not punishment and, as reasonably noted in the cassation submission, bringing to any responsibility.

One of the grounds for the application by the court of measures of a criminal law nature on the proposal of the penitentiary inspectorate is the commission by a conditionally convicted person of a violation of public order during the probationary period, for which he was brought to administrative responsibility.

These norms of the criminal law are designed to ensure the inevitability and fairness of responsibility for the committed crime, as well as the execution of a court sentence, if the conditionally convicted person has not changed his behavior and continues to violate the requirements established by law.

The above legal regulations in interconnection allow us to conclude that the current criminal and penitentiary legislation does not contain instructions that the application by the court of measures of a criminal law nature in the form of an extension of the probationary period and the imposition of additional duties for previously committed violations of public order prevents the recognition of the convict's behavior systematic violation of public order in the event that he commits a new violation of public order during the year, for which he is brought to administrative responsibility.

In addition, the recognition of the justified conclusions of the appellate court on the application of Part 3 of Art. The Criminal Code of the Russian Federation, in terms of recognizing violations of public order as systematic, would mean the impossibility of applying this norm of the law, since it implies actual inaction on the part of the body exercising control over probationers. Meanwhile, the said body, if there are such grounds, is obliged to send a corresponding submission to the court, which, as follows from the court decision, will not take into account the previous behavior of the conditionally convicted person within the period of time established by law and, for each violation of public order, has the right only to extend his probationary period, or impose additional duties in the order h. 2 Article. of the Criminal Code of the Russian Federation, which does not correspond to the essence of probation and probation, during which the convicted person must not only refrain from committing a new crime, but also prove his correction by his behavior.

Thus, the conclusions of the Court of Appeal, underlying court order, should be recognized as erroneous, not based on the requirements of the criminal law, which ultimately influenced the decision of a lawful and reasonable court decision.

Taking into account that, in accordance with Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation, the court of appeal has broad powers to review court decisions issued by the court of first instance, including the right to independently eliminate committed violations of the law and consider the case on the merits with a final decision, except in cases provided for in Art. Part 3 Court proceedings> Section XIII. Proceedings in the court of second instance > Chapter 45.1. Proceedings in the court of appeal > Article 389.22. Cancellation of the guilty verdict or other decisions of the court of first instance with the transfer of the criminal case for a new trial or with the return of the criminal case to the prosecutor judicial review during which it is necessary to comprehensively, fully and objectively examine all the circumstances of the case, carefully check the arguments presented by the penitentiary inspectorate and other participants in criminal proceedings on the presence or absence of grounds for applying criminal law measures to a conditionally convicted person, the validity of the court decision, give all the circumstances and arguments a proper legal assessment and make a decision in accordance with the requirements of the law.

Based on the above and guided by Article.Article. Part 3. Judicial proceedings > Section XV. Revision of sentences, rulings and court decisions that have entered into legal force > Chapter 47.1. Proceedings in the court of cassation > Article 401.13. Terms and procedure for consideration of a criminal case under cassation complaint, presentation in the court session of the court of cassation" target="_blank"> 401.13 , Presidium of the Supreme Court of the Republic of Kalmykia

RESOLVED:

The appeal decision of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kalmykia dated July 9, 2015 in relation to Savoshevich C.The. cancel, send the case materials for a new appellate trial in the same court in a different composition of the court.

The cassation presentation of the First Deputy Prosecutor of the Republic of Kalmykia Zhilin S.N. partially satisfy.

presiding V.L. Petrenko

Plaintiffs:

Savoshevich S.V.

Judges of the case:

Saranov Vadim Sergeevich (judge)

Litigation on:

On drugs

Judicial practice on the application of the norm of Art. 228 of the Criminal Code of the Russian Federation