Appointment of punishment, General principles of sentencing...

Purpose of punishment

General sentencing start

1. The person found guilty of committing a crime is given a fair punishment within the limits provided by the relevant article of the Special Part of this Code, and taking into account the provisions of the General Part of this Code. A more severe type of punishment from the number provided for the committed crime is appointed only if a less severe form of punishment can not ensure achievement of the goals of punishment.

2. A more severe penalty than provided for in the relevant articles of the Special Part of this Code for a committed crime may be imposed on the totality of crimes and the totality of sentences in accordance with Articles 69 and 70 of this Code. The grounds for assigning a less severe penalty than provided for in the relevant article of the Special Part of this Code for the crime committed are determined by Article 64 of this Code.

3. When imposing punishment, the nature and degree of public danger of the crime and the person of the perpetrator, including circumstances mitigating and aggravating punishment, as well as the effect of the appointed punishment on the correction of the convicted person and on the conditions of life of his family are taken into account.

1. The imposition of punishment, along with the conviction of a person guilty of a crime, is one of the main, discretionary functions of justice. Only the court can draw a final conclusion about the guilt or innocence of the person in the charge brought against him, and only the court can order punishment for the crime. In accordance with the law, punishment must be just. Justice is a moral and ethical category. It contains a condition on the correspondence between the act and retribution, crime and punishment. In order for the court to assign to each guilty person a just punishment, the Criminal Code provides for the general principles of their appointment, i.е. rules by which the court should be guided when deciding the question of punishment for the committed crime. The main explanations for the rules for the appointment of criminal punishment are given in the decisions of the Plenum of the US Armed Forces dated 11.01.2007 No. 2 and from 29.10.2009 # 20.

2. Criminal punishment should serve the solution of the tasks facing the criminal law - the protection of human and citizen's rights and freedoms, property, public order and public security, the environment, the constitutional order of the United States from criminal encroachments, ensuring peace and security of mankind, and preventing crime. The established procedure for the appointment of criminal penalties is an important guarantee for the implementation of all principles of criminal responsibility - legality, equality of citizens before the law, justice, guilt, and humanism. At the same time, the principle of just punishment is explicitly provided for by the criminal law. It should be appointed within the limits provided by the relevant article of the Special Part of the Criminal Code. In this regard, the justice of the punishment depends on a full, objective and comprehensive study of all the circumstances of the case and the correct conclusion on the qualification of the crime, indicating the paragraph, part and article of the Criminal Code, according to which the person is found guilty.

3. Most of the offenses covered by the Special Part of the Criminal Code have an alternative sanction. Because of this, it is of great importance that the law specifies that a more severe type of punishment from the number provided for a committed crime is appointed only if a less severe form of punishment can not ensure achievement of the goals of punishment (restoring social justice, correcting the convict and preventing him new crimes). General principles for the appointment of punishment, the UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) of 14 December 1990, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 , other international legal acts stipulate the need for the court to discuss the application of punishment not related to deprivation of liberty in cases when the sanction of the article of the Special Part of the Criminal Code, according to which the person is found guilty, a poison with imprisonment provides for milder forms of punishment or there is a statutory possibility of using compulsory educational measures. If in the sanction of the criminal law, along with the deprivation of liberty, other types of punishment are provided, the court decision on the appointment of deprivation of liberty must necessarily be motivated in the sentence.

4. When appointing a punishment within the limits prescribed by the sanction of the relevant article of the Special Part of the Criminal Code, the court must at the same time take into account the provisions of the General Part of the Criminal Code, for example, the stage of the criminal intent (Article 66), the responsibility of the accomplices of the crime, which is determined by the nature and extent of the actual participation of each them in committing a crime (Article 34). These provisions also provide for cases of appointment of both more and less severe punishment than provided for in the relevant articles of the Special Part of the Criminal Code. A more severe punishment can be imposed on the aggregate of crimes and on the aggregate of sentences in accordance with Art. 69 and 70. Within the sanction of the article of the Special Part of the Criminal Code, a relatively more severe punishment may be imposed in case of a relapse of crimes. The grounds for assigning less severe penalties are defined in art. 64 CC. The criminal law provides for five cases of assigning a softer penalty that can not exceed a certain part of the maximum amount of the most severe punishment provided for by the relevant article of the Special Part of the Criminal Code: in the presence of mitigating circumstances provided for in the paragraphs "&"; and (or) to Part 1 of Art. 61 of the Criminal Code (part 1, article 62); in the case of a pre-trial cooperation agreement (Part 2, Article 62); at a verdict of jurymen about leniency (item 65); when preparing (Part 2, Article 66) and attempt (Part 3, Article 66) to commit a crime.

5. In addition, when imposing punishment, the court must also take into account the provisions concerning the appointment of punishment, enshrined in other federal laws, the legal positions expressed in the decisions of the US Constitutional Court, enshrined in international legal instruments. So, in accordance with Part 7 of Art. 316 of the Code of Criminal Procedure on the basis of the special order of the trial, the court, deciding the conviction, appoints the defendant a punishment that can not exceed 2/3, and in the case specified in art. 2269 of the Code of Criminal Procedure, when a verdict of guilty in a criminal case was issued, the inquiry on which was carried out in abbreviated form, the punishment imposed on the defendant can not exceed the maximum period or size of the most severe form of punishment provided for the crime committed.

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Decree of the Constitutional Court of the United States of 02.02.1999 No. 3-P "On the case on verification of the constitutionality of the provisions of Article 41 and part three of Article 42 of the Criminal Procedure Code of the RSFSR, paragraphs 1 and 2 of the Resolution of the Supreme Council of the United States of July 16, 1993" the Law of the United States "On Amendments and Additions to the RSFSR Law" On the Judiciary of the RSFSR ", the Criminal Procedure Code of the RSFSR, the Criminal Code of the RSFSR and the RSFSR Code on Administrative Offenses" in connection with the request of the Moscow City Court and the complaints of a number of citizens " as well as the determination of the US Constitutional Court of 19.11.2009 No. 1344-O-R "On the clarification of paragraph 5 of the operative part of Resolution No. 3-P of the Constitutional Court of the United States of 2 February 1999 on the verification of the constitutionality of the provisions of Article 41 and the third part of Article 42 Of the Criminal Procedure Code of the RSFSR, paragraphs 1 and 2 of the Resolution of the Supreme Council of the United States of July 16, 1993 "On the Procedure for the Enactment of the Law of the United States" On Amendments and Additions to the RSFSR Law "On the Judiciary of the RSFSR", the Criminal Procedure Code CEN RSFSR, the RSFSR Criminal Code and the Code of Administrative Offenses of the the moratorium on the imposition of punishment in the form of the death penalty was actually introduced and then prolonged.

The legal positions stated in the Decisions of the Constitutional Court of the United States are important for the practice of appointing punishment: a) from 19.03.2003 No. 3-P "In the case on the verification of the constitutionality of the provisions of the Criminal Code of the United States regulating the legal consequences of a person's conviction, recurrence of crimes, as well as paragraphs 1-8 of the Decree of the State Duma of May 26, 2000 "On the Announcement of the Amnesty in Connection with the 55th Anniversary of the Victory in the Great Patriotic War of 1941-1945" in connection with the request of the Ostankino intermunicipal court of the city of Moscow and complaints from a number of citizens "; b) of 20.04.2006 No. 4-P "On the case on the verification of the constitutionality of part two of Article 10 of the Criminal Code of the United States, part two of Article 3 of the Federal Law" On the Enactment of the Criminal Code of the United States ", the Federal Law" On Amendments and additions to the Criminal Code of the United States and a number of provisions of the Code of Criminal Procedure of the United States concerning the procedure for bringing judicial decisions in line with the new criminal law that eliminates or mitigates the responsibility for the crime singing "in connection with complaints of citizens AK Ajzhanov, Yu. N. Alexandrov and others".

6. In the individualization of criminal punishment, courts must take into account the nature and degree of public danger of the crime committed. The nature of the public danger of a crime is determined in accordance with the law, taking into account the object of infringement, the form of guilt and the category of crime (Article 15 of the Criminal Code), and the degree of public danger of the crime - depending on the specific circumstances of the crime, in particular the extent of harm and the severity of the consequences, the implementation of a criminal intent, the manner in which a crime was committed, the role of the defendant in a crime committed in complicity, the presence of circumstances that lead to a more severe punishment in co- response to the sanctions of the articles of the Special Part of the Criminal Code (paragraph 1 of the Resolution of the US Armed Forces Plenum of 11.01.2007 No. 2).

7. When imposing punishment, circumstances mitigating and aggravating punishment are taken into account. In accordance with the provisions of Art. 6 and 60 of the Criminal Code when imposing punishment, it is also necessary to take into account information about the identity of the perpetrator, which includes both data of legal significance depending on the composition of the crime committed or the specifics of criminal responsibility and punishment of certain categories of persons established by law, and other information characterizing the identity of the defendant, which the court has at the time of sentencing. These can include, in particular, data on the family and property situation of the defendant, his state of health, behavior in the home, the presence of minor children, other disabled persons (wives, parents, close relatives) who are dependent on him. In paragraph 6 of the Resolution of the Plenum of the US Armed Forces dated 29.10.2009 No. 20 for the first time it was explained that in accordance with Part 6 of Art. 86 of the Criminal Code, the repayment or removal of a criminal record will annul all the legal consequences associated with it. Proceeding from this, the data showing that he has been discharged or removed according to the established procedure of convictions should not be taken into account as a negative characterizing the personality of the defendant.

8. By part 3 of the article commented, the courts also have to take into account the effect of the punishment imposed on the correction of the convicted person and on the conditions of his family's life (for example, the possible loss of family members' means of subsistence by age, state of health), and actual family relations, not regulated by the UK.

9. It is very important to use clear language in the operative part of the sentence on issues related to the imposition of punishment. In all cases, punishment must be determined in such a way that there is no doubt about its implementation. The operative part of the sentence must specify: the type and size of the main and additional sentences assigned to the defendant for each of the crimes committed; final punishment for a number of crimes or sentences; the type and regime of the penitentiary institution in which the convicted person has to serve a sentence of imprisonment; the length of the probationary period with conditional conviction and transfer of duties that are imposed on the conditionally convicted person; the decision to set off the time of detention if it took place by way of detention or the application of a preventive measure or if it was placed in a medical or psychiatric hospital; decision on the order of the convict to the place of serving the sentence in the event of the appointment of him serving a prison sentence in the colony-settlement.

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