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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of May 15, 2018 No. 10

About practice of application by courts of provisions of part 6 of article 15 of the Criminal Code of the Russian Federation

Due to the questions arising at courts in case of application of provisions of part 6 of article 15 Criminal Code of the Russian Federation and for the purpose of ensuring the correct and uniform application by courts of regulations of the criminal and criminal procedure laws regulating the bases and procedure for change of category of crime on less heavy, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:

1. Draw the attention of courts that change of category of crime on less heavy according to part 6 of article 15 Criminal Code of the Russian Federation allows to provide individualization of responsibility of the convict for deeds and is realization of the concepts of justice enshrined in articles 6 and 7 Criminal Code of the Russian Federation and humanity.

Change of category of crime on less heavy improves legal status of the convict as influences, in particular, appointment to the convict to imprisonment of type of correctional facility (article 58 Criminal Code of the Russian Federation); assignment of punishment on cumulative offenses (article 69 Criminal Code of the Russian Federation); purpose of conditional condemnation (Item of part 1 of article 73 Criminal Code of the Russian Federation); cancellation or preserving conditional condemnation (part 4, 5th article 74 Criminal Code of the Russian Federation); possibility of release from serving sentence in connection with active repentance (article 75 Criminal Code of the Russian Federation), conciliation with the victim (article 76 Criminal Code of the Russian Federation), lapse of time of criminal prosecution or execution of conviction of court (Article 78, 83, 94 Criminal Code of the Russian Federation), change of situation (article 80.1 Criminal Code of the Russian Federation) or owing to the act of amnesty (article 84 Criminal Code of the Russian Federation), application to the minor of enforcement powers of educational impact (article 92 Criminal Code of the Russian Federation); calculation of term of punishment after which actual departure are possible application of parole from serving sentence (Article 79, 93 Criminal Code of the Russian Federation) or replacement of unexpired part of punishment with softer type of punishment (article 80 Criminal Code of the Russian Federation); calculation of repayment period of criminal record (Article 86, 95 Criminal Code of the Russian Federation).

Taking into account consequence in law of change of category of crime on less heavy the court by consideration of criminal case should check whether there are bases for application of provisions of part 6 of article 15 Criminal Code of the Russian Federation concerning each defendant.

2. In the presence of one or several circumstances commuting penalty and in the absence of the circumstances aggravating punishment court, having appointed the punishment specified in part 6 of article 15 Criminal Code of the Russian Federation for crime execution of average weight, heavy or especially serious crime solves according to Item 6.1 of part 1 of article 299 Code of Criminal Procedure of the Russian Federation question of possibility of change of category of crime on less heavy, but no more than on one category of crime taking into account the actual circumstances of crime and degree of its public danger.

Resolving the matter, the court takes into account crime execution method, extent of realization of criminal intents, role of the defendant in the crime committed in partnership, type of intention or type of imprudence, motive, the act making purpose, nature and the size of the come effects, and also other actual circumstances of crime influencing degree of its public danger. Conclusion about availability of the bases for application of provisions of part 6 of article 15 Criminal Code of the Russian Federation can be made by court if the actual circumstances of the committed crime testify to smaller degree of its public danger.

3. When accounting the circumstances commuting penalty for the solution of question of possibility of application of part 6 of article 15 Criminal Code of the Russian Federation the court should proceed from provisions of parts 1 and 2 of article 61 Criminal Code of the Russian Federation.

In cases when according to part 2 of article 61 Criminal Code of the Russian Federation the court as mitigating acknowledged the circumstances which are not provided by part 1 of article 61 Criminal Code of the Russian Federation they are also considered in case of change of category of crime on less heavy.

4. Availability of one or several circumstances aggravating punishment specified in parts 1 and 1.1 of article 63 Criminal Code of the Russian Federation excludes possibility of change of category of crime on less heavy.

If the aggravating circumstance is provided by the relevant article of the Special part of the Criminal Code of the Russian Federation as actus reus sign, including qualified actus reus, then such circumstance in sense of part 2 of article 63 Criminal Code of the Russian Federation does not interfere with application of provisions of part 6 of article 15 Criminal Code of the Russian Federation by court. For example, the gross violation of public order expressing the explicit disrespect for society made using the weapon or objects used as weapon (the Item "and" of part 1 of article 213 Criminal Code of the Russian Federation) or making of theft as a part of group of persons by previous concert (the Item "and" of part 2 of article 158 Criminal Code of the Russian Federation) in itself is not obstacle for consideration by court of question of change of category of such crime on less heavy.

5. The issue of change of category of crime on less heavy is resolved: Trial Court in case of removal of conviction on the criminal case considered as generally, and in special procedure for legal proceedings (Chapter 40, 40.1 Code of penal procedure of the Russian Federation); Appeal Court - in case of removal of appeal sentence or determination, the resolution on change of the court verdict of the first instance; court of cassation or supervising instance in case of change of sentence of subordinate court.

Provisions of part 6 of article 15 Criminal Code of the Russian Federation can be applied by the court resolving the questions connected with execution of sentence if owing to the edition of the penal statute, retroactive, penalty to the convict according to Item 13 of article 397 Code of Criminal Procedure of the Russian Federation is commuted to the limits provided by part 6 of article 15 Criminal Code of the Russian Federation. In this case the decision on change of category of crime on less heavy is made by court proceeding from the actual circumstances of crime stated in sentence.

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