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:

1. In case of the solution of question of possibility of application of parole from serving sentence or replacement of unexpired part of punishment with softer type of punishment according to provisions of Articles 79, 80 and 93 Criminal Code of the Russian Federation courts should provide individual approach to each convict. Parole from serving sentence can be applied only to those convicts who, on recognition of court, for the correction do not need complete serving of the penalty imposed by court and left its part provided by the law taking into account time of detention before adjudgement and its introduction for legal force.

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.

Person concerning whom earlier parole was cancelled on any of the unspent convictions which are available for it can be conditionally ahead of schedule exempted after the actual departure of term of the punishment specified in the Item "in" part 3 of article 79 Criminal Code of the Russian Federation.

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.

If person is condemned on cumulative offenses of different category of weight or on cumulative sentences, then in case of the solution of question of parole from serving sentence or replacement of unexpired part of punishment with softer type it is necessary to proceed from the final term of the penalty imposed on set. In case of calculation from this term of that its part after which actual departure application of parole or replacement of unexpired part of punishment with softer type of punishment is possible courts should apply the rules provided by Items the part Items "and", "b", "v" 3, part 3.1 Articles 79, paragraphs to the second, third, fourth part 2 Articles 80, article 93 Criminal Code of the Russian Federation for the most serious crime entering set.

If at least one of crimes for which person is condemned on cumulative offenses or cumulative sentences is specified in the part Items "g", "d" 3 Articles 79, paragraphs the fifth - pole of part 2 of article 80 Criminal Code of the Russian Federation, then it is necessary to proceed from established by the called regulations of rules as taking into account nature of public danger of crimes they prescribe the longest terms punishments which actual departure is condition for consideration of question of parole or about replacement of unexpired part of punishment with softer type of punishment.

3. Parole cancellation in itself cannot form the convict according to part 7 of article 79 Criminal Code of the Russian Federation the basis for refusal in repeated application of parole to it from serving sentence. In such cases the court should proceed not only from the cancellation fact to the convict of parole, but also to consider in total all data on his personality, the time spent in correctional facility after return to this organization, his behavior, the relation to work, etc.

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.

According to part 2 of article 80 Criminal Code of the Russian Federation unexpired part of punishment can be replaced with court softer type of punishment specified in article 44 Criminal Code of the Russian Federation which owing to part 3 of article 80 Criminal Code of the Russian Federation cannot be more maximum term or the amount of the punishment prescribed by the Criminal Code of the Russian Federation for this type of punishment. At the same time according to part 2 of article 72 Criminal Code of the Russian Federation the term of softer type of punishment shall be determined taking into account provisions of part 1 of article 71 Criminal Code of the Russian Federation. For example, in case of imprisonment replacement with corrective works if unexpired part of custodial sanction constitutes 6 months, then the term of corrective works shall not exceed 1 year 6 months.

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.

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