As of 11 March 2011, the penalties for a significant number of types of crime, especially of an economic nature, have been relaxed
Pepeliaev Group advises that 11 March 2011 saw the entry into force of Federal Law No. 26-FZ dated 7 March 2011 “On amending the Criminal Code of the Russian Federation”.
This law has amended the Criminal Code as follows:
1. It has made changes to part 4 of article 74 of the Criminal Code, which determines the procedure for a conditional conviction to be cancelled, so that no longer will it be mandatory to cancel a conditional conviction in the case of a crime of medium seriousness, but the court will decide whether to cancel it.
Similar amendments have been made to part 7 of article 79 of the Criminal Code, which establishes the conditions and procedure for a grant of parole to be cancelled when a person is serving a sentence.
2. The penalties have been relaxed for a significant number of types of crime:
- the lower limits of penalties taking the form of imprisonment have been lifted in respect of 68 types of crime;
- the lower limits of penalties taking the form of correctional work or apprehension have been removed in respect of 118 types of crime;
- the main penalty has been stipulated to be a fine for 11 types of crime;
- correctional work has been added as a further possible penalty for 12 types of crime.
In the articles which provide for liability for tax crimes (articles 198, 199 and 199.1 of the Criminal Code), the lower limit of the apprehension penalty has been removed.
Article 188 of the Criminal Code (smuggling) is left untouched by the amendments made by the new law.
Pepeliaev Group's comments: Abolishing the lower limit of the imprisonment penalty does not signify that it has been reduced to zero. Under part 2 of article 56 of the Criminal Code, where there is no lower limit for imprisonment, the minimum term to which a person may be sentenced is two months.
The legal position of the Constitutional Court as expressed in its Resolution No. 4-P dated 20 April 2006 should also be noted. This dealt with the provision contained in part 2 of article 10 of the Criminal Code, which concerns the shortening of a punishment within the limits provided for in the new criminal law. Under a systematic approach, when this provision is taken together with part 1 of the same article, relevant prior cases must be reexamined when a criminal law is adopted which establishes that a particular offence is to be regarded as less grave than previously, or that lower punishment thresholds will apply to such offence, or less onerous rules will apply to sentencing. The sentences previously handed down must be reconsidered and assessed under the new criminal law. Were this not so, persons already serving a sentence would be placed on an unequal footing with those persons sentenced after the new criminal law comes into force, whose penalty will be decided taking account of both the upper and lower limits of the penalty in the relevant article.
Consequently, the entry into force of Federal Law No. 26-FZ will entail a review of the sentences handed down to persons convicted of the crimes regulated by those articles of the Criminal Code which are amended by the new law.
Moreover, since there are no clear rules for determining the penalty in such cases, it will be a matter for the court’s discretion to decide by how much the penalty will be reduced.
[1] The Russian Constitutional Court’s Resolution No. 4-P dated 20 April 2006 “On a case concerning verifying the constitutionality of the second part of article 10 of the Russian Criminal Code, of the second part of article 3 of the Federal Law “On bringing the Russian Criminal Code into force”, of the Federal Law “On amending and supplementing the Russian Criminal Code” and a series of provisions of the Russian Criminal Procedure Code which concern the procedure for handing down court decisions in accordance with a new criminal law which eliminates and alleviates liability for a crime, in connection with the complaints of citizens A.K. Aizhanova, Yu.N. Alexandrova and others”.
For further information, please contact:
in Moscow – Maxim Koshkin, Head of Practice for Criminal Defence for Business, at: (495) 967-0007 or by m.koshkin@pgplaw.ru; Alexander Kurilov, Associate, at: (495) 967-0007 or by a.kurilov@pgplaw.ru
in St Petersburg - Sergey Spasennov, Partner, Head of St. Petersburg office, at (812) 333-07-17 or by s.spasennov@pgplaw.ru