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Approved by Presidium of the Supreme Court of the Russian Federation on June 1, 2011

The overview of court practice of the Supreme Court of the Russian Federation for the first quarter 2011

Court practice on criminal cases

Questions of qualification of crimes

1. Action (failure to act) though it is formal and containing signs of any act provided by the penal statute, but owing to insignificance not constituting public danger is not crime.

By court it is determined that on March 28, 2009 Z. one cartridge of caliber of 7,62 of mm which, according to the expert opinion, is ammunition to cut hunting firearms found, brought it home and illegally stored in the apartment. The specified boss was found and withdrawn on April 6, 2009 during search.

According to the court verdict (taking into account the made changes) Z. it is condemned according to p.1 Art. 222 of the Criminal Code of the Russian Federation.

The judicial board on criminal cases of the Supreme Court of the Russian Federation cancelled the court verdict, having specified the following.

According to the p. 2 of Art. 14 of the Criminal Code of the Russian Federation action (failure to act) though it is formal and containing signs of any act provided by the Criminal Code of the Russian Federation, but owing to insignificance not constituting public danger is not crime.

Recognizing Z. guilty of illegal acquisition and storage of ammunition - the single boss of caliber of 7,62 of mm, the court did not give assessment to that circumstance that Z. had no weapon, acquired the boss accidentally (found) and at the same time did not attach any significance to its stay (storage) in the apartment.

Besides, the court did not provide the data testimonial of the fact that Z in sentence. the actions did harm or created threat of damnification of the personality, to society or the state.

Under such circumstances the Judicial board cancelled the court verdict with diversion based on item 2 p.1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation behind absence in act of actus reus and recognized for Z. right to rehabilitation.

Determination N 55-D10-23

 

Questions of assignment of punishment

2. According to the item "in" the p. 4 of Art. 18 of the Criminal Code of the Russian Federation in case of recognition of recurrence of crimes criminal records for crimes for which condemnation was conditional are not considered if conditional condemnation was not cancelled and person did not go for serving sentence to places of detention.

According to the court verdict of February 9, 2006. To. (judged on January 13, 2005 on subitem "and", the p. 2 of Art. 158 of the Criminal Code of the Russian Federation by 2 years of imprisonment 2 years are conditional with probation period) it is sentenced according to the item of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation to 12 years of imprisonment. According to the p. 5 of the Art. 74, Art. 70 of the Criminal Code of the Russian Federation conditional condemnation under sentence of January 13, 2005 is cancelled and on cumulative sentences with partial accession of unexpired punishment under sentence of January 13, 2005 13 years of imprisonment in corrective colony of strict regime are finally appointed.

Judicial board on criminal cases of the Supreme Court of the Russian Federation determination of July 19, 2006 sentence in the relation To. left without change.

Presidium of the Supreme Court of the Russian Federation, having considered criminal case according to the supervising claim of the convict, changed judgments in the relation To. on the following bases.

Having specified that To. we judge for crime of average weight, the court established availability in its actions of recurrence of crimes and recognized this circumstance aggravating punishment of the convict.

However by court it is not considered that To. it was condemned conditionally, and according to the item "in" the p. 4 of Art. 18 of the Criminal Code of the Russian Federation in case of recognition of recurrence of crimes criminal records for crimes for which condemnation was conditional are not considered if conditional condemnation was not cancelled and person did not go for serving sentence to places of detention.

Follows from case papers that conditional condemnation To. under sentence of January 13, 2005 it was not cancelled earlier, the penalty imposed by court was not performed.

Thus, in actions To. there is no recurrence of crimes.

With respect thereto the Presidium excluded from specifying sentence about availability in actions To. recurrence of crimes and about recognition of recurrence of crimes the circumstance aggravating punishment.

Resolution of Presidium of the Supreme Court of the Russian Federation N 400-P10

3. The court mistakenly recognized recurrence of crimes as the circumstance aggravating punishment as in case of recognition of recurrence of crimes owing to the item "and" of the p. 4 of Art. 18 of the Criminal Code of the Russian Federation criminal records for crimes of small weight are not considered.

According to the court verdict of August 19, 2005 S. (judged on January 29, 2002 on subitem, "" of the p. 2 of Art. 158 of the Criminal Code of the Russian Federation) is sentenced on subitem, "з" by the p. 2 of Art. 105 of the Criminal Code of the Russian Federation to 15 years of imprisonment, according to the item "in" the p. 4 of Art. 162 of the Criminal Code of the Russian Federation by 12 years of imprisonment. Based on the p. 3 of Art. 69 of the Criminal Code of the Russian Federation on cumulative offenses of S. 18 years of imprisonment with serving in corrective colony of strict regime are appointed.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left sentence without change.

The presidium of the Supreme Court of the Russian Federation changed judgments based on p.1 Art. 409, to item 3 p.1 the Art. 379, item 1 of Art. 382 of the Code of Criminal Procedure of the Russian Federation in view of the wrong application of the penal statute.

At the time of the resolution of the court verdict of August 19, 2005 changes were made to the court verdict of January 29, 2002, actions of the convict are requalified by the resolution of April 20, 2004 with subitem, "" of the p. 2 of Art. 158 of the Criminal Code of the Russian Federation on p.1 Art. 158 of the Criminal Code of the Russian Federation which sanction provides imprisonment for a period of up to two years, that is this crime is referred by the law (the p. 2 of Art. 15 of the Criminal Code of the Russian Federation) to category of crimes of small weight.

Because in case of recognition of recurrence of crimes according to the item "and" of the p. 4 of Art. 18 of the Criminal Code of the Russian Federation criminal records for crimes of small weight are not considered, the court mistakenly recognized recurrence of crimes as the circumstance aggravating punishment of Page.

The presidium excluded from sentence specifying about recognition of recurrence of crimes the circumstance aggravating punishment and commuted penalty under each Article.

Resolution of Presidium of the Supreme Court of the Russian Federation N 393-P10

4. The court makes reasoned decision on purpose of additional punishment in the form of deprivation of the right to be engaged in lawyer activities.

According to the court verdict of December 2, 2010 B. is sentenced according to the p. 5 of the Art. 33, by the p. 3 of the Art. 30, the p. 2 of Art. 290 of the Criminal Code of the Russian Federation using Art. 64 of the Criminal Code of the Russian Federation to imprisonment to 1 year 10 months with deprivation of the right to be engaged in lawyer activities for 2 years 6 months, according to the p. 5 of the Art. 33, the p. 3 of the Art. 30, the p. 2 of Art. 303 of the Criminal Code of the Russian Federation to imprisonment for 10 months with deprivation of the right to be engaged in lawyer activities for 2 years. Based on the p. 3 of Art. 69 of the Criminal Code of the Russian Federation of B. custodial sanction for 2 years with deprivation of the right to be engaged in lawyer activities for 3 years is finally imposed.

By court it is determined that M. working as the senior investigator of department of inquiry of the Department of Internal Affairs attempted upon obtaining through the intermediary - the lawyer B. of bribe for illegal actions, and also attempted upon falsification of proofs on criminal case, and the lawyer B. rendered it in it complicity.

The judicial board on criminal cases of the Supreme Court of the Russian Federation recognized insolvent arguments of the writ of appeal of the lawyer about unreasonable appointment of B. of additional punishment in the form of deprivation of the right to be engaged in lawyer activities.

Owing to p.1 Art. 47 of the Criminal Code of the Russian Federation deprivation of the right to hold certain positions or to be engaged in certain activities consists in prohibition to hold positions in public service, in local government bodies or to be engaged in certain professional or other activity.

Refer the activities performed on permanent basis for certain remuneration or with revenue generating purpose in this connection the court makes reasoned decision on B.'s appointment of additional punishment in the form of deprivation of the right to be engaged in lawyer activities for certain term to professional activity.

Determination N 51-O10-94

5. Imposing penalty for preparation for crime in the presence of the bases provided p.1 by Art. 62 of the Criminal Code of the Russian Federation it is necessary to estimate two thirds of the maximum term or the size of the most severe looking of the punishment prescribed for unfinished crime.

According to the court verdict of Sh. the item "z" of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation is sentenced to 8 years of imprisonment according to the p. 3 of the Art. 33, p.1 by the Art. 30,.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left sentence without change.

The presidium of the Supreme Court of the Russian Federation changed the court verdict and cassation determination concerning Sh., commuted to it penalty on the following bases.

According to the p. 2 of Art. 66 of the Criminal Code of the Russian Federation the term and the amount of punishment for preparation for crime cannot exceed half of the maximum term or the size of the most severe looking of the punishment prescribed by the relevant article of the Special part of the Criminal Code of the Russian Federation for completed crime.

According to p.1 Art. 62 of the Criminal Code of the Russian Federation in the presence of the attenuating circumstances provided by subitem "and" and (or) "to" p.1 Art. 61 of the Criminal Code of the Russian Federation and lack of aggravating circumstances the term or the amount of punishment cannot exceed two thirds of the maximum term or the size of the most severe looking of the punishment prescribed by the relevant article of the Special part of the Criminal Code of the Russian Federation.

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