Punishment is punishment, forcible deprivation of a person who has committed an illegal act, of any benefits. When sentencing, the courts must take into account many circumstances: the degree of danger and gravity of the act, the individual characteristics of the offender, mitigating and aggravating factors.
Classification
The legislation provides for various types of punishments. Sentencing is carried out strictly in accordance with the rule of law. Any sanction must be proportionate to the act committed. At the same time, all types of punishments carry an element of retribution, but they are not identical in content. Otherwise, for example, murderers would be sentenced to death.
Punishments are:
- The main ones. Such sanctions are independent and do not join other types of punishments. These include, in particular, arrest, compulsory, corrective, forced labor, deprivation / restriction of liberty, detention in a disciplinary unit, restriction of service.
- Additional. They cannot be charged separately from the main punishment. Their main purpose is to enhance the punitive influence. In its pure form, an additional punishment is the deprivation of a military (or other special) rank.
Meanwhile, the legislation provides for sanctions of a dual nature. They can be both primary and secondary. Such penalties are, for example, a fine, a ban on filling posts or conducting certain activities. Such sanctions are considered basic if provided for in the relevant articles of the Special Part.
Sanctions also vary depending on the subject of the offense. They can be special or general. The sentencing, as mentioned above, depends on different circumstances. Special sanctions are imposed on officials and military personnel. General penalties are provided for all other persons.
Sanctions may be related to corrective action. In this case, the perpetrators are placed in conditions in which there is a constant educational impact. Such sanctions, in particular, include correctional labor, arrest, restriction of service, etc.
General sentencing principles
The Criminal Code is the only legislative act according to which sanctions are imposed on those guilty of crimes. At the same time, none of them can be appointed with unproven guilt. In chapter 10 of the Criminal Code, norms are established that determine specific types, sizes and terms of sentences. The imposition of sanctions is based on a number of principles:
- Legality.
- Justice.
- Humanism.
- Differentiation, individualization of responsibility.
- The rationality of the application of criminal law measures.
- Target aspiration punishment.
Principle of justice
It provides a proper assessment of the correctness of the measures chosen. Justice is implemented in all the rules for sentencing, embodied in the aggregate of criminal law. From the perspective of a general theory, a sanction is considered fair, which is simultaneously legal, expedient, humane, and rational. This is ensured by the differentiation of punishments in the norms and individualization in sentencing.
Differentiation
It is expressed in the legislative division of criminal law influence in the articles of the Criminal Code. In the General Part of the Code, it is carried out by:
- separation of sanctions into main and additional;
- consolidation of the opportunity to apply additional punishments not provided for in the norms of the Special Part;
- establishing grounds for mitigating or tightening sentences, etc.
In the Special Part, differentiation is expressed in the establishment of:
- qualified personnel and new limits of punishment corresponding to them;
- special types of exemption from liability;
- alternative, relatively specific, cumulative sanctions;
- opportunities (along with the obligation) to apply additional penalties.
Individualization
It involves the maximum adaptation of the measure chosen by the court to the objectives of the sanction, taking into account the level of danger of the act, the personality characteristics of the perpetrator, mitigating and aggravating factors.
Within the limits established by law, when imposing criminal punishment, the court concretizes it. Moreover, he relies on the criteria formulated in the relevant norm of the Criminal Code. The court expresses its conclusion in the verdict.
Individualization and differentiation of punishment are closely related concepts. Differentiation in a particular case is mediated through individualization. The determination of the measure of influence implies a strict framework of judicial discretion.
Common Beginnings of Accountability
The assignment of criminal punishment is carried out in accordance with the rules enshrined in article 60 of the Criminal Code. According to the norm, sanctions are imposed:
- to the extent established by the relevant article of the Special Part of the Code;
- subject to the provisions of the General Part;
- taking into account the degree of danger and the nature of the act, the individual characteristics of the offender, extenuating / aggravating circumstances, the impact of the criminal law measure on the correction of a person and the quality of life of his relatives.
Sentencing of a more severe form from the number provided for in the norm is allowed only when a less severe sanction does not ensure the achievement of the goals of holding a person accountable.
The application of these principles together allows a guilty person to be given a fair, justified, lawful sentence.
Important point
Part 1 of article 60 of the Criminal Code contains an indication of the limits of the sanctions provided for in the articles of the Special Part. This means that when assigning criminal punishment, the courts are obliged to apply precisely those types of measures and within such frameworks as are enshrined in the norms. The court is not entitled to exceed the maximum amount of sanctions under any circumstances.
If the minimum limit is not specified in the article, then it should be determined taking into account the provisions enshrined in the General Part of the Code. Moreover, it cannot be lower than the limit established for the corresponding type of sanction in the Special Part.
The legislator, therefore, states that the criminal law sanction acts as the key link in determining the framework for the punishability of an act. Consequently, to impute a fair measure, the court must turn to an analysis of the content of the norm. In addition, the study of generalized materials on the practice of sentencing is of no small importance. Many criminal cases have similar features. In this regard, unified approaches to resolving them have been developed in judicial practice. Their use can significantly reduce the time of the proceedings. At the same time, in considering any case, the court must take into account specific circumstances and formulate its conclusions on the basis of their analysis. Summarizing materials should be regarded as an auxiliary tool.
Public danger
In part 3 of article 60 of the Criminal Code, the main criteria for sentencing are identified. They are the degree and nature of the social danger of the act and the personality of the subject involved in it. As a means of specifying these criteria, mitigating and aggravating factors act.
Danger of crime - a property that expresses the orientation of the act to cause damage to the object of criminal law protection. Its degree and nature act as indicators by which the court gives a qualitative and quantitative assessment of the assault.
The nature of the danger is established by the crime belonging to a particular genus. It is expressed by determining the elements of the composition of the act. The nature of the danger reflects the qualitative signs of an assault. In this regard, the courts, distracting from the circumstances of the case, use different approaches when sentencing entities guilty of grave and especially grave acts (robbery, murder, rape, etc.), and citizens who have committed crimes of medium and low gravity.
The degree of danger reflects a quantitative assessment of the offense. Its determination is carried out taking into account the totality of circumstances in which the crime took place. Plenum of the Armed Forces in the Decree number 20 from 29 October. 2009 provided clarification on this issue. The court, in particular, indicated that the degree of danger is characterized by the method of the act, the amount of damage or the severity of the consequences, the role of the perpetrator of complicity.
The nature of the danger primarily determines the type of punishment that will be assigned for a specific act. The degree of danger mainly affects the choice of the term (size) of the sanction in the framework of a particular type of measure.
Guilty person
This concept is considered collective. It covers the social essence of the citizen, his biological, mental characteristics. When imposing a punishment, the subject’s attitude to work, public debt, education, his behavior at home and in the workplace, health status, criminal record, family, property status are taken into account. Thus, data characterizing the citizen should be taken into account not only from the positive, but also from the negative side. The latter, in particular, include information on alcohol abuse, evasion of socially useful activities, poor relations with relatives, colleagues, etc.
Information that gives an idea of the identity of the perpetrator allows in some cases to substantially adjust the size and type of the sanction chosen for her. In appropriate situations, this information can have a significant impact on the position of the court. As a result, a citizen can be charged not with punishment, but with other measures: conditional conviction, compulsory treatment, postponement of execution of punishment, etc.
Difficult cases
Article 60 enshrines the general rules for sentencing, therefore the norm does not apply to particular, possible deviations from the classical scheme: the act was committed by the performer, singly, completed.
In practice, there are often crimes related to the multiplicity of episodes or interrupted due to circumstances beyond the control of the perpetrator at the stage of attempt (preparation), or committed by several persons. Such cases are regulated by the provisions of Articles 30, 33, 69, 70. Of course, the general provisions apply to particular cases. However, the specificity is that it is necessary to apply the rules that specify them.
Justice of Justice
It is of particular importance in sentencing. This sphere of human activity is not amenable (at least at present) to full specification. In this regard, the judge’s representation of the law plays a key role: the content of criminal norms, the features of their practical application, the mechanism of imputing a fair and reasonable punishment on the basis of criteria enshrined in law.
Defects in the professional justice of persons who hear cases lead to errors in sentencing. This, in turn, negatively affects law enforcement practice, damages the authority of the court.
Special Sanction Rules
The current legislation provides:
- Raising the lower limit of punishment. It is permissible only if there are certain grounds. For example, in part 2 of article 68 of the Criminal Code, the punishment for a relapse of crimes cannot be less than 1/3 of the maximum term of the most severe sanction established for this act.
- Decrease the upper limit of punishment. For example, when revealing extenuating circumstances enshrined in paragraphs 61 and 1 (1) of Article 61 of the Criminal Code, or when a jury passes a verdict of leniency, the amount of the sanction should not exceed 2/3 of the upper limit of the sanction. In the case of an attempt on a crime, it may not exceed 3/4, and when concluding a pre-trial agreement or for preparing for an assault - 1/2 of the maximum term (size) of the most severe punishment.
- Going beyond sanctions. It is admissible both for the upper one (for example, when imposing a sentence on the totality of articles or crimes), and for the lower limit (in exceptional circumstances, in the case of active assistance of participants in group crimes).
Cooperation with the investigation
Currently, the revised version of article 62 of the Criminal Code is in force, which enshrines the specifics of imposing sanctions when concluding a pre-trial agreement by the defense and the prosecution. The participants in the process agree on the actions to be taken by the person involved in the infringement, the conditions of his responsibility, depending on the execution of the agreement.
In the presence of such an agreement and extenuating circumstances enshrined in paragraphs "p" or "k" of Article 61, in the absence of aggravating factors, the amount (term) of punishment shall not exceed 1/2 the maximum limit of the most severe sanction established in the relevant Codex norm.
Grounds for mitigation
The court has the right to impose a milder sentence in the presence of exceptional circumstances. According to part 2 of article 64, they can be considered as individual mitigating factors, as well as their combination. Exceptional circumstances may relate to the identity of the perpetrator, his role in the crime, behavior during or after the assault, motives, objectives of the act, etc. It must be established that the factors identified indicate a significant reduction in the degree of danger of the crime and the identity of the citizen who committed it.
Another reason for mitigating punishment is the active assistance of a person who participated in a group assault, its disclosure. When pronouncing the verdict, the court must indicate specific actions indicating the perpetrator’s desire to cooperate with the investigation.
Jury Verdict of Indulgence
If a life imprisonment or capital punishment is fixed in the corresponding part of the CC norm, they are not subject to application. Other punishment is imposed under the sanction of the relevant article of the Code.
In other cases, the size of the measure of responsibility should not be more than 2/3 of the maximum size (term) of the most severe punishment. For example, under part 1 of article 105, the perpetrator faces up to 15 years in prison. But when a jury passes a verdict of leniency, he can be sentenced no more than 10 years.
When applying the rules on imposing sanctions in such cases, it should be noted that the aggravating circumstances enshrined in Article 63 of the Criminal Code are not taken into account. The corresponding order is contained in 4 parts of Art. 65.
Unfinished act
The imposition of punishment for incomplete assault is carried out in accordance with the rules of article 66 of the Criminal Code. Normally, 3 provisions are fixed:
- Life imprisonment or the death penalty shall not be imputed in sentencing in a case of attempt or preparation for a crime. Such an order is enshrined in 4 parts 66 of the norm.
- When considering the case of preparation for a grave or especially grave act, the amount (term) of sanction for the guilty should not exceed 1/2 the maximum size (term) of the most severe punishment. This rule is established in part 2 of article 66.
- In the case of an attempt, the size (term) of the sanction should not be more than 3/4 of the maximum size (term) of the most severe punishment.
Set of crimes
She corresponds to a multiplicity of punishments, since for each crime the perpetrator must be punished. The totality of crimes is stated in article 69 of the Criminal Code. At the same time, the law enshrines the possibility of imposing punishment on the totality of sentences.
In the first case, the imposition of the sanction is carried out in two stages. At the first, the court determines the sanction for each act individually. At the second stage, the final punishment for all infringements in the aggregate is established.
In Art. 69 there is an indication of absorption or the imposition of sanctions. The first assumes that a more severe punishment encompasses a less severe one. If sanctions of the same type are imputed to a person for certain acts, the one whose term (size) is longer will be considered more stringent. If the punishments are of a different type, the determination of severity is carried out taking into account the place that is assigned to them in the list. If identical sanctions are imputed to a citizen for certain acts (for example, according to the year of prison), they do not absorb each other. In such cases, the final sanction is determined by adding the terms.
The specifics of administrative punishment
The rules for imposing sanctions for offenses are enshrined in the Code of Administrative Offenses, as well as regional legislation governing administrative responsibility. The articles of the Code establish specific types of measures of responsibility and their permissible limits.
The procedural basis for imposing sanctions on the offender is the decision to impose an administrative penalty. It is issued exclusively by authorized officials.
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