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

of January 11, 2007 No. 2

About practice of appointment of criminal penalty as courts of the Russian Federation

Owing to requirements of Articles 73 and 307, 308 Codes of penal procedure of the Russian Federation (further - the Code of Criminal Procedure of the Russian Federation) in sentence should be specified what circumstances are commuting and aggravating the penalty, data characterizing the identity of the defendant, motives of the made decisions on all questions relating to criminal sentencing, release from it or its serving.

2. Types of criminal penalty in the Criminal Code of the Russian Federation are located in certain sequence from less strict to more strict.

3. Appointing the punishment types which are not connected with isolation from society, the court shall observe features of their application.

The size of penalty is determined by court taking into account weight of the committed crime, property status of the convict and his family, and also taking into account possibility of receipt by the convict of the salary or other income (part three of article 46 Criminal Code of the Russian Federation).

It is necessary to carry the income to other income, taxable according to the current legislation.

If for the committed crime fine is ordered to pay as primary punishment, then it is impossible to appoint it as additional punishment for the same crime.

If the convict to penalty has no opportunity to one-timely pay penalty, the court based on part two of article 398 Code of Criminal Procedure of the Russian Federation can provide payment by installments of payment of penalty certain parts for a period of up to 5 years or payment deferral for the same term at stage of execution of sentence.

3-1. According to part one of the article 32 PEC of the Russian Federation it is malicious evading from payment of penalty the condemned, not paid penalty without payment by installments till 30 calendar days from the date of the introduction of sentence in legal force or the first part of penalty with payment payment by installments in the same time or the rests of penalty no later than the last day of each next month is recognized.

In law sense, establishment of other conditions, except failure to pay penalty in time (for example, the numerous prevention of the convict judicial police officers-contractors about possibilities of replacement of penalty with other punishment, confiscation of explanations at it about the reasons of failure to pay penalty, submission of data on property status of the convict and sources of its income), for recognition of the convict is malicious evading from payment of penalty it is not required.

Explain to courts that the fact of absence in itself at the convict of money cannot be recognized reasonable excuse for failure to pay penalty in time.

The penalty in the amount of, estimated proceeding from size, the multiple cost of subject or the amount of commercial bribery or bribe, appointed as primary punishment, in case of malicious evasion from its payment is replaced with punishment within the sanction of the relevant article of the Special part of the Criminal Code of the Russian Federation. At the same time the imposed penalty cannot be conditional.

In case of permission of question of replacement of penalty with other type of punishment to court it is necessary to find out the circumstances connected with execution of the requirements of article 103 of the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding" establishing procedure for recovery of penalty by judicial police officers-contractors.

Deprivation of the right to hold certain positions consists in prohibition to hold positions only in public service or in local government bodies. The specific type of such positions shall be specified in sentence.

In case of assignment of punishment in the form of deprivation of the right to be engaged in certain activities in sentence it is necessary to concretize type of such activities.

In any case in sentence the term of prohibition to hold certain positions shall be specified or to be engaged in certain activities.

That circumstance that by the time of adjudgement person did not hold certain position or was not engaged in certain activities, does not deprive court of the right to impose this penalty.

Regulations Criminal Code of the Russian Federation on punishment in the form of obligatory works are enacted since January 10, 2005. At the same time courts should mean that this penalty can be imposed also for the crimes committed till January 10, 2005.

In case of assignment of punishment on cumulative offenses, for each of which corrective works are appointed, in case of use of the principle of complete or partial addition of punishments to addition only terms of corrective works are subject.

6.2. In sentence it is necessary to establish the territory out of which limits condemned to restriction of freedom it is forbidden to leave and within which he is forbidden to visit certain places. If the structure of the settlement in which the convict lives includes several municipalities, then the court has the right to set the corresponding restrictions within the territory of such settlement.

The court should specify what visit of places (restaurants, cafe, bars, etc.) within the territory of the respective municipality is forbidden to the convict.

Restriction in the form of prohibition on visit of venues of mass actions and participation in them can concern as all mass actions, and those from them, visit and participation in which, according to court, will interfere with punishment goal achievement. Actions are mass, for example, social and political (meetings, meetings, street processions, demonstrations, etc.), cultural and spectacular (festivals, professional holidays, festivities, etc.) and sports (the Olympic Games, sports contests, Universiades, competitions in different types of sport, etc.).

Assigning on condemned obligation to be for registration in criminal and executive inspection, the court shall specify specific number of appearances within a month.

Surrender as the circumstance commuting penalty is considered when person in oral or written type voluntarily reported to the body performing criminal prosecution about the crime (article 142 Code of Criminal Procedure of the Russian Federation) made by it or with its participation.

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