Calculation of sentences and penalties - Commentary...

Calculation of sentences and penalties

1. Terms of deprivation of character to occupy certain positions or engage in certain activities, correctional labor, restrictions on military service, restrictions on freedom, forced labor, arrest, detention in a disciplinary military unit, imprisonment are calculated in months and years, and compulsory labor in hours (as amended by Federal Law No. 420-FZ of December 7, 2011).

2. When replacing the punishment or adding up the penalties provided for in part one of this article, as well as in the offset of the sentence, the sentences may be calculated in days. At the same time, taking into account the provisions of part one of Article 71 of this Code, two hundred and forty hours of compulsory labor correspond to one month of imprisonment or forced labor, two months of restraint, three months of correctional labor or restrictions on military service (in red. Federal Law of 07.12.2011 No. 420-FZ).

3. The period of the person's detention before the trial is counted in terms of imprisonment, forced labor, keeping in a disciplinary military unit and arrest at the rate of one day for one day, restriction of liberty - one day for two days, correctional labor and restrictions but military service - one day for three days, and in the period of compulsory work - at the rate of one day of detention for eight hours of compulsory work (in the edition of the Federal Law of 07.12.2011 No. 420- FZ).

4. The time when a person is held in custody pending the entry of a court verdict into legal force and the time of serving the sentence of imprisonment for a crime committed outside the United States in the case of the extradition of a person on the basis of Article 13 of this Code are counted at the rate of one day per day./strong>

5. When appointing a convicted person who was held in pre-trial detention as a basic penalty, deprivation of the right to hold certain positions or engage in certain activities, the court, taking into account the period of detention, mitigates the punishment imposed or completely exempts him from serving this punishment.

1. In a number of articles of the Criminal Code regulating the use of types of punishment with the indication of their terms (articles 47, 50, 51, 53-56), their calculation is made in months and years, and compulsory works in hours. In these cases, it should be borne in mind that the sanction of the article of punishment up to a certain number of years, for example up to five years of imprisonment, entitles the court to impose punishment both for whole years and for years with months (for example, three years and six months). If a certain range of the type of punishment is indicated in the sanction of the article (part 2 of Article 117 of the Criminal Code - imprisonment for a term of three to seven years), then punishment can be imposed in months and years, including months.

2. The imposition of punishment in whole years implies the end of the sentence on the last day of the expiring year, with the year taken not from the calendar (from January 1 to December 31), but within the beginning and end of the sentence. For example, a sentence of three years' imprisonment, the term of which began on July 20, 2010, ends on July 19, 2013. If the sentence is fixed in months, then the end of the period falls on the last day of the month, based on the beginning and end of the sentence . When calculating the terms of punishment in months, the number of days in a month does not matter (a punishment of two months of correctional labor, the beginning of which falls on February 1, 2011, will be considered served on March 31, 2011, and a sentence of three months - April 30, 2011 .).

3. Calculation of the terms of punishment in days is allowed only in three cases:

a) when, for a set of crimes or a set of sentences, the types of punishment specified in part 1 of Art. 71 of the Criminal Code;

b) when the time for keeping a person in custody pending trial is in accordance with part 3 of the article being commented; c) when certain types of punishment are replaced by others in case of malicious evasion of serving the punishment prescribed by the court (Part 5, Article 46, part 3, Article 49, part 3, Article 50, part 4, Article 53, part 1, art. 54 CC). When replacing the punishment or adding penalties, taking into account the provisions of Part 1 of Art. 71 of the Criminal Code 240 hours of compulsory labor correspond to one month of imprisonment or forced labor, two months of restraint, three months of correctional labor or restrictions on military service. The period of the person's detention pending trial is counted in terms of imprisonment, forced labor, keeping in a disciplinary military unit and arrest at the rate of one day for one day, restrictions on liberty - one day for two days, correctional labor and restrictions on military service - one day for three days, and in the period of compulsory work - at the rate of one day of detention for eight hours of compulsory work.

4. The beginning of the sentence is usually indicated in the operative part of the sentence (with imprisonment, arrest), but this is not always done. If the guilty person is sentenced in the form of correctional labor, compulsory work, deprivation of the right to hold certain positions or engage in certain activities, restrictions on military service, restrictions on liberty, the term of serving punishment is determined from the moment of actual serving of punishment in the control of specially created divisions in internal affairs bodies or self-governing bodies. For example, the commencement of the term of serving correctional labor is the day the convicted person leaves for work (Part 2, Article 42 of the PEC).

5. The credit in the term of serving the sentence shall be subject to the time of detention of the person in custody and the time of serving the deprivation of liberty in cases provided for by Part 2 of Art. 13 of the Criminal Code.

In the CIS countries, this issue is resolved in accordance with the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases, adopted in Minsk on January 22, 1993 and which came into force for

United States since December 10, 1994, in countries far abroad - on the basis of international treaties and agreements. In these cases, the amount of time spent in custody and the time spent serving a sentence imposed by a court verdict for a crime committed outside the United States shall be calculated on the basis of one day in a single day, regardless of the type of regime of the correctional colony assigned to the convicted person. >

The Constitutional Court of the United States on this issue expressed the following legal position. The Constitution, fixing in art. 22 everyone's right to freedom and personal inviolability, establishes uniform guarantees of this right during arrest, detention and custody. A similar approach is reflected in the Criminal Code, which uses a single time scale for the calculation of the term of imprisonment, regardless of whether it is applied as a measure of restraint or punishment: the time of holding a person in custody pending trial is counted in terms of imprisonment at the rate of one day for one day (part 3 of the article being commented). At the same time, the federal legislator does not (and is not obliged to) carry out differentiation of the order of offset of the terms of detention, depending on the types of correctional facilities that the court determines when imposing a sentence in the form of deprivation of liberty. In the sense of the provisions of Art. 130 PEC, in conjunction with the provisions of the article under review, the time of detention as a preventive measure, in any case, is subject to set-off in determining the total term of the court-appointed punishment. Such an approach corresponds to international standards, according to which preliminary detention should not be applied if the alleged offense does not correspond to the punishment in the form of deprivation of liberty, and when sentencing, the term spent in pre-trial detention should either be counted in the sentenced sentence, or taken into account with the purpose of reducing the sentence (Decree of the Constitutional Court of the United States of 27.02.2003 No. 1-P "On the case on the verification of constitutionality of the provisions of part one of Article 130 of the Criminal Procedure Yelnia Code of the United States in connection with citizens' complaints PL Vereshchaka VM Gladkov, IV Golysheva and KP Daniel .)

The issue of the possibility of offsetting the time of detention as a preventive measure in other proportions was also examined by the Constitutional Court of the USA (see the US Constitutional Court ruling No. 564-0-0 of April 16, 2009 "On refusal to accept the complaint of citizen Kuzmitsky Sayan Borisovich on the violation of his constitutional rights by the provisions of articles 30, 35, 56, 58, 66, 72, 159 and 161 of the Criminal Code of the United States, as well as the Federal Constitutional Law "On the Constitutional Court of the United States").

6. When appointing a convicted person who was held in pre-trial detention as a punishment for correctional labor, he is released from serving his sentence if the punishment is already served during recalculation. For example, a person held in custody for four months was sentenced to one year of correctional labor. When appointing a convicted person who was held in pre-trial detention as a basic penalty, deprivation of the right to hold certain positions or engage in certain activities, the court, taking into account the period of detention, mitigates the punishment imposed or completely exempts him from serving that penalty. >

For example, the district military court of S. was sentenced to a fine of 250 thousand rubles. The court of the supervisory instance reduced the fine to 150,000 rubles, since from September 30, 2005 to March 15, 2006, Mr .. S. was held in custody. In accordance with Part 5 of Art. 72 of the Criminal Code when appointing a convicted person who was held in pre-trial detention as the main penalty in the form of a fine, the court, taking into account the period of detention, mitigates the punishment imposed or completely exempts him from serving that punishment. The first instance court did not implement these provisions of the criminal law.

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