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

of April 21, 2009 No. 8

About court practice of parole from serving sentence, replacement of unexpired part of punishment with softer type of punishment

Due to the questions which arose at courts in case of application of the legislation on parole from punishment of replacement of unexpired part of punishment with softer type of punishment, and for the purpose of ensuring unity of court practice 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 to courts the following explanations:

Draw the attention of courts that the new penal statute providing increase in that part of term of punishment which actual departure is condition for consideration of question of parole or about replacement of unexpired part of punishment with softer type of punishment is subject to application only concerning person condemned for the crime committed after entry into force of the new penal statute.

2. When penalty to the convict was commuted by the act of amnesty or the act of pardon or determination (resolution) of court, in case of application of parole from punishment or replacement of unexpired part of punishment with softer type of punishment to court it is necessary to estimate actually served punishment sentence, proceeding from the term of the punishment established by the act of amnesty or the act of pardon or determination (resolution) of court.

4. According to parts 1 and 4 of article 80 Criminal Code of the Russian Federation to the person which is leaving content in disciplinary military unit, forced labor or imprisonment, who compensated the harm done by crime (fully or partially) the court can replace remained not left part of punishment by softer type of punishment. The basis for such replacement is the behavior of the convict testimonial of the fact that the goals of punishment can be achieved by replacement of unexpired part of punishment with milder pinishment. The court also should consider data on the identity of the convict, its relation to work and study in term of imprisonment.

At the same time proceeding from the interconnected provisions of parts 2 and 4 of Article 53. 1, parts 2 and 3 of article 80 Criminal Code of the Russian Federation in case of imprisonment replacement with forced labor unexpired part of custodial sanction, including more than 5 years, can be replaced with forced labor with the same term.

4.1. In sense of article 80 Criminal Code of the Russian Federation from the moment of the introduction in legal force of the court order about replacement of unexpired part of punishment with softer type of penalty serving imposed under sentence of punishment in the form of content in disciplinary military unit, forced labor or imprisonment stops, and softer type of punishment chosen according to the procedure of replacement is subject to execution. The questions arising in the course of execution of this punishment (including provided by articles 79 and 80 Criminal Code of the Russian Federation) are subject to independent permission according to the procedure, established by Chapter 47 of the Code of penal procedure of the Russian Federation.

Taking into account it if to the convict according to part 2 of article 80 Criminal Code of the Russian Federation unexpired part of custodial sanction was replaced with forced labor, then further in the presence of the bases provided by parts 1 and 2 of article 80 Criminal Code of the Russian Federation, unexpired part of punishment in the form of forced labor can be replaced with softer type of punishment. At the same time the terms established regarding the 2nd article 80 Criminal Code of the Russian Federation are estimated from the date of the beginning of serving of the forced labor chosen to the convict according to article 80 Criminal Code of the Russian Federation.

The penal statute does not contain prohibition and on parole from serving of forced labor if they were chosen to the convict according to article 80 Criminal Code of the Russian Federation. In this case according to part 3.2 of article 79 Criminal Code of the Russian Federation the term of punishment after which actual departure parole from serving of forced labor can be applied is estimated from the moment of the beginning of term of serving sentence in the form of the imprisonment appointed according to the court verdict.

5.  No. 51 is excluded according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17.11.2015

6. In practice of courts there shall not be cases as unreasonable refusal in parole of serving sentence of the convicts who are not needing complete serving of the penalty imposed by court and unreasonable release from serving sentence. Courts have no right to refuse parole from serving sentence or replacement of unexpired part of punishment with softer type of punishment on the bases which are not specified in the law such as availability of former criminal record, softness of the imposed penalty, non-recognition by the convict of fault, short duration of its stay in one of correctional facilities, etc.

Availability at the convict of penalties in itself cannot demonstrate that he needs further serving of the penalty imposed by court. Resolving this question, it is necessary to consider specific circumstances, weight and nature of each violation allowed by the convict for the entire period of serving sentence, and not just in time, directly prior to consideration of the petition or representation, data on removal or repayment of penalties, time which passed from the moment of the last collection, the subsequent behavior of the convict and other data characterizing it.

It must be kept in mind that by consideration of questions of parole from serving sentence and about replacement of unexpired part of punishment with softer type of punishment the court has no right to state judgment of illegality and groundlessness of the penalties and encouragement applied to the convict.

If in judicial session it is determined that the convict took measures to compensation of the harm (material damage and moral harm) done by crime, however owing to the objective reasons harm is compensated only partially, then the court has no right to refuse parole from serving sentence or replacement of unexpired part of punishment with softer type of punishment only on this basis.

9. In case of parole from primary punishment of the convict to which additional punishment was imposed or replacement of unexpired punishment with softer type of punishment to courts should discuss question of possibility of release of the convict fully or partially and from additional punishment.

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