DEPENDING THE SERVING OF PUNISHMENT FOR PATIENTS WITH DRUG ADDICTION
Schukina Tatyana Alexandrovna
4th year student of the Faculty of Economics, Department of Finance and Credit, Federal State Budgetary Educational Institution of Higher Professional Education, OGAU, Orenburg
Email:
Potapova Alena Nikolaevna
scientific supervisor, Ph.D. ist. Sciences, Associate Professor of the Department of the History of the Fatherland, Federal State Budgetary Educational Institution of Higher Professional Education, OSAU, Orenburg
Among the many problems facing Russian society today, one of the first places is the problem of drug addiction of the country's population as a serious threat to national security, which requires effective anti-drug policy. characteristic feature drug addiction in Russia is that it affects not only adults, but also children and youth. Drug addiction is the second most important problem in our country, after crime. The number of drug addicts is increasing at an incredibly high rate.
Drug addiction statistics in Russia reflect frightening figures. According to the data of the State Drug Control Service (2012), 3 million people in the country regularly use drugs, and 18 million people have experience of their use. Over the past decade, drug-related deaths have increased 10-fold, and child mortality has risen 45-fold. According to various generalized data, each drug addict draws in another 10 to 17 people.
Drug addiction in Russia is "getting younger" - 84% of drug addicts admit that they first tried drugs at the age of less than 15 years. Sadly, many parents find out about their child's drug addiction 2 years after the first drug use, and then it's too late to do anything. The average life expectancy of people who regularly use drugs does not exceed 4.5 years. Some addicts do not live more than a year with regular drug use. According to Interpol, the annual global turnover of the drug business is 500-800 billion dollars.
Why was there an increase in drug addiction in Russia in the 1980s? Many believe that the impetus for this was given by the “dry law” introduced by M.S. Gorbachev. Habitual alcohol was replaced by pills and drugs with a narcotic effect. In addition, drug addiction began to grow after the destruction of the totalitarian regime, with the advent of many freedoms, among which were drugs. By the end of the 1980s, a community of drug dealers had already been formed in Russia, and the annual turnover of drugs was 500 tons.
In 1991 Russia abolished criminal and administrative liability for possession and use of narcotic substances for personal purposes. This was the beginning of the democratization of the country. 1 gram of heroin, which previously cost $200, has now become 10 times cheaper, which means that it is as much more affordable. In the same year, 1991, 5 teenagers out of 100,000 residents were registered with drug dispensaries for the first time.
With the decrease in the cost of narcotic drugs, the number of drug addicts began to increase. In 1996, there is a shift towards more expensive drugs - opium, heroin. Drugs began to come into fashion. In 1997, they could be bought everywhere - at school, college, at a disco, in the subway, in the market.
As emphasized by drug expert Dr. Renslaer Lee, in just five years Russia has entered the global drug market, and now (2012) it is one of the five largest producers and exporters of synthetic drugs.
Currently, the number of juvenile drug addicts has increased dramatically. The lower limit of the age of a drug addict reached 13 years. The problem of drug addiction in the country is exacerbated by a complex criminal situation and an increased risk of infection, including AIDS. Drug addiction is not a personal disease, but a social one. It takes place within a certain social group and affects society as a whole. A drug addict cannot be isolated from other people, so sooner or later a group of people involved in drug addiction will form around him.
It cannot be said that the state remains aloof from issues related to the drug threat. Thus, in the Strategy of the State Anti-Drug Policy developed on behalf of the President of the Russian Federation Russian Federation Until 2020, among others, a provision has been fixed on the need to introduce into the legislation of the Russian Federation norms that provide defendants, drug addicts and those found guilty of crimes (small or medium gravity) related to drug trafficking, the opportunity to choose between treatment and criminal punishment.
This issue is reflected in Federal Law No. 420-FZ, approved by the President of the Russian Federation on December 7, 2011. He made significant changes and additions simultaneously to several codified legal acts, including the Criminal and Criminal Procedure Codes. Improvement of domestic sectoral legislation is aimed at the liberalization of criminal policy.
One of the novelties is the addition of the Criminal Code of the Russian Federation with Article 82.1 “Delay of serving a sentence for drug addicts”, which establishes the legal grounds for granting a deferment to the specified category of convicts: the first article 231 and article 233 of this Code, and who has expressed a desire to voluntarily undergo a course of treatment for drug addiction, as well as medical and social rehabilitation, the court may defer serving a sentence of imprisonment until the end of treatment and medical and social rehabilitation, but not more than five years".
The selection by the legislator among many social diseases of a delay only in relation to people suffering from drug addiction may seem disputable due to the presence of other, no less dangerous manifestations - alcoholism, substance abuse, etc. However, this is a problem for a separate study.
Many states stood in the way of determining the most effective ways fight against drug addiction. For example, in the United States, specialized courts were created - drug courts as elements of the US judicial system. In Italy, if the defendant has been sentenced to less than four years' imprisonment, the execution of the sentence is suspended with five years' probation. If the course of rehabilitation therapy is successfully completed, the case is closed. In Luxembourg, a drug addict may be required to undergo a detoxification course. The judge conducting the case, at the request of the prosecutor or the accused, may decide to take such a course. If the treatment is successful, the offender will not be prosecuted. In the case of a voluntary course of therapy, the execution of the sentence is suspended with a probationary period of two years.
The statistics of registered drug crimes indicate their rapid increase. So, according to V.S. Ovchinsky, the number of identified crimes related to drug trafficking has been constantly growing exponentially over the past 20 years. So, if in 1990 there were about 16 thousand of them registered in the RSFSR, then in 2009 - already 238.5 thousand, that is, 15 times more.
If after treatment former drug addict shows himself as a full-fledged member of society and receives a certificate confirming the remission, which lasted at least two years, the court will have the right to completely release him from serving his sentence.
During the period of deferment, no crimes may be committed, otherwise the court will cancel the deferment. To control the execution of a court decision to suspend the execution of a sentence for a drug addict is assigned to the penitentiary inspections (CII), located at the place of residence of the convicts. Thus, convicts will be able to undergo treatment and medical and social rehabilitation in a familiar environment with old friends.
The law also defines the events in the presence of which the inspection will be able to ascertain the fact of evasion from treatment and rehabilitation:
Refusal to visit and leave the medical institution;
Failure to comply with the instructions of the attending physician two or more times;
Continued use of drugs or psychotropic drugs;
The systematic use of alcoholic beverages or intoxicating substances;
vagrancy or begging;
· Disappearance from the field of view of the AIS for a period of more than 30 days.
It is impossible to evade the passage of this treatment and rehabilitation, such will be punished by the abolition of the deferral of serving the sentence and the return to the execution of the sentence originally imposed by the court.
Thus, the norms introduced into the Criminal Code of the Russian Federation, articles 82-1 of the Criminal Code of the Russian Federation, allow persons recognized as drug addicts, whose sentence is suspended, to voluntarily undergo drug treatment, as well as medical and social rehabilitation, encouraging them to take the path of correction , and thereby reduce the level of crimes related to drug trafficking.
In general, the expansion of the types of suspension of punishment with the simultaneous treatment of drug addiction will undoubtedly help to improve the unfavorable situation in the fight against drug addiction. According to preliminary estimates, the postponement of serving sentences for drug addicts will provide an opportunity to undergo a course of treatment on a voluntary basis for more than 50 thousand people, or about 50% of all those convicted of drug crimes. Drug addiction is a disease that needs to be treated, whether of its own accord or under the coercive power of the state.
Bibliography:
- Alternative punishments for drug addicts in EU countries [Electronic resource]. - Access mode. - URL: http://www.narkotiki.ru/jcomments_3188.html. (Date of access 10.01.2013)
- Zinoviev V.V., Penkin S.V. Organizational issues of rehabilitation of persons suffering from drug addiction and alcoholism: the experience of the US specialized drug courts and proposals for its implementation in the Russian Federation // Narcocontrol. 2010. No. 4. S. 28-37.
- Drug addiction in Russia [Electronic resource]. - Access mode. - URL: http://prozavisimost.ru/.narkomaniya-v-rossii.html (accessed 01/10/2013)
- Postponement of punishment for drug addicts. [Electronic resource]. - Access mode. - URL: http://www.yurist-online.net/article/21
- Postponement of serving sentences for convicted drug addicts. [Electronic resource]. - Access mode. - URL: http://www.mosoblproc.ru/explain/?id=132 (accessed 01/10/2013)
- Ovchinsky V.S. On the development of the drug situation in Russia: how to neutralize mines in the Russian drug field // Narcocontrol. 2011. No. 1. S. 11-13.
- Peschanskikh G.V., Pleshakov A.A., Cherkudinov D.A. The influence of the spread of drug addiction and drug crime in the military environment on the growth in the number of economic and corruption crimes committed in the army and navy // Narkokontrol. 2011. No. 2. S. 8-11.
- Petrochenkov A.Ya. Arbitrage practice consideration of criminal cases on drug crimes // Narcocontrol. 2010. No. 2. S. 5-8.
- Federal Law No. 420-FZ of 07.12.2011 “On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation” // Rossiyskaya Gazeta. No. 278. 09.12.2011.
This type of deferral of serving a sentence was introduced into the Criminal Code by the Federal Law of December 7, 2011 No. 420-FZ “On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation”.
This rule is aimed at postponing the punishment imposed by the court in exchange for the voluntary desire of the convict to undergo treatment for drug addiction, as well as medical and social rehabilitation.
The basis for the application of a deferral of punishment for drug addicts is the conviction of the court, based on the materials of the criminal case, that it is possible to achieve the goals of punishment without actually serving it. Main reason for delay- this is a low degree of public danger to the personality of the convict, the indicators of which can be: the severity of the crime committed; petition of the convict, his lawyer or representation of the administration correctional facility, testifying to the desire of the convict to undergo a course of treatment; positive characteristics of the convict, etc.
Postponement of serving a sentence is conditional in nature, the conditions are established obligations and stipulated prohibitions, in case of violation of which the specified delay
may be canceled by a court order.
TO conditions for the application of the suspension of punishment according to Article 82.1 include:
1) sentence of a person to deprivation of liberty;
2) conviction for committing a crime under Part 1 of Article 228 “Illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs, psychotropic substances or their analogues, as well as illegal acquisition, storage, transportation of plants containing narcotic drugs or psychotropic substances , or their parts containing narcotic drugs or psychotropic substances”, Part 1 of Article 231 “Illegal large-scale cultivation of plants containing narcotic drugs or psychotropic substances or their precursors”; Article 233 of the Criminal Code of the Russian Federation “Illegal issuance or forgery of prescriptions or other documents giving the right to receive narcotic drugs or psychotropic substances”;
3) committing for the first time a crime under Part 1 of Article 228, Part 1 of Article 231 and Article 233 of the Criminal Code of the Russian Federation;
4) recognition of a person as a drug addict;
5) the desire of the convict to voluntarily undergo treatment for drug addiction, as well as medical and social rehabilitation.
As noted above, one of the first conditions for the application of a suspension of punishment is sentencing of a person to imprisonment. Crimes under Part 1 of Art. 228, part 1 of Art. 231 and Art. 233 of the Criminal Code of the Russian Federation, are classified as minor, and the term of imprisonment is three, two and two years, respectively. Judicial practice shows that courts rarely impose on them punishment in the form of real imprisonment, although this possibility is Art. 56 of the Criminal Code of the Russian Federation granted to them. In relation to other crimes of minor gravity, deprivation of liberty may be imposed only if there are aggravating circumstances or if this type of punishment is provided as the only one in the sanction of an article of the Special Part of the Criminal Code of the Russian Federation. In the appointment of punishments other than deprivation of liberty for drug addicts, the application of a deferment of serving a sentence, Art. 82.1 of the Criminal Code of the Russian Federation is not provided. Thus, the legislator in this case limited the application of the deferment of serving a sentence only to persons sentenced to deprivation of liberty.
The second condition for applying the deferment is convict committing before the verdict of the court of one or more crimes specified in Part 1 of Art. 82.1 of the Criminal Code of the Russian Federation provided that the person has not been previously convicted for any of them. However, the punishment in this case must be imposed in accordance with Part 5 of Art. 69 of the Criminal Code of the Russian Federation on the totality of crimes.
Condition committing a crime for the first time means that a person found guilty of committing these crimes does not have unserved sentences imposed by a court verdict, as well as outstanding convictions.
The presence of outstanding convictions for committing other crimes is not directly an obstacle to the application of a deferment of serving a sentence to a convicted drug addict, they can only act as characterizing information, including aggravating circumstances.
Recognition of a convicted drug addict as a condition for the application of a deferment of serving a sentence occurs before a judgment is issued. Sick of drug addiction- a person who, according to the results of a medical examination conducted in accordance with the established procedure, was diagnosed with drug addiction. In accordance with Art. 44 of the Federal Law of January 8, 1998 No. o3-FZ "On drugs and psychotropic substances” in order to recognize a convicted person suffering from drug addiction, a medical examination is required. In accordance with this norm, the specified examination of a person is possible by order of a judge, investigator and bodies of inquiry, if there are sufficient grounds to believe that he is addicted to drugs, is in a state of drug intoxication, or has consumed a narcotic drug or psychotropic substance without a doctor's prescription in specially authorized authorities health care institutions. Based on the results of its conduct, a person is diagnosed, confirming the presence or absence of this disease.
The presence of a confirmed disease of drug addiction is a prerequisite for the application of this measure of a criminal law nature, otherwise, subject to other conditions, it cannot be applied to the defendant or convict.
The last condition for the application of a deferment of serving a sentence to drug addicts is voluntary desire of a person to undergo treatment for drug addiction, as well as medical and social rehabilitation. Given
condition implies that the convicted person has a voluntary, that is, without
coercion, a real desire to undergo treatment for drug addiction with subsequent rehabilitation. This desire of the defendant may be expressed in writing or orally. This will of the defendant may manifest itself at any stage of the criminal process, the main condition under these circumstances is before the removal of the court to the deliberation room. The Supreme Court also noted that both the convict himself and the court, which, if there are sufficient conditions, is obliged to ascertain the desire of not only the defendant, but also, in order to execute the sentence, the convict to undergo treatment from drug addiction, medical rehabilitation and social rehabilitation. The main provisions of the medical and social rehabilitation of drug addicts are set out in the order of the Ministry of Health of the Russian Federation dated October 22, 2003 No. 500 On approval of the protocol for managing patients "Rehabilitation of drug addicts". Medical and social rehabilitation should be carried out by specialized medical institutions of the narcological profile.
According to part 1 of article 82.1 of the Criminal Code, a court may defer serving a sentence of imprisonment for a period until the end of treatment and medical and social rehabilitation, but not more than 5 years. Postponement of serving a sentence to drug addicts may be granted by the court both in a court session when sentencing the convict, and by a court ruling in the process of serving their sentence in the form of deprivation of liberty.
The question of the postponement of the execution of the sentence is decided by the court at the request of the convicted person, his legal representative, close relatives, defense counsel, or at the request of the prosecutor (part 3 of article 398 of the Code of Criminal Procedure of the Russian Federation). Execution of the court ruling in accordance with Part 2 of Art. 178.1 of the Penal Code of the Russian Federation is assigned to the penitentiary inspection at the place of residence of the convicted person, to which a copy of such a determination is sent.
If the convict has undergone a course of treatment for drug addiction and medical and social rehabilitation, then in the presence of an objectively confirmed remission, the duration of which after the end of treatment and medical and social rehabilitation is at least two years, the court releases the convict, recognized as a drug addict, from serving the sentence or the remainder of the punishment (part 3 of article 82.1 of the Criminal Code). Under remission in modern medicine, a temporary weakening or disappearance of the symptoms of a disease is understood.
Thus, the deadline for resolving the issue of the final release of the convict in accordance with the provisions of Art. 82.1 of the Criminal Code of the Russian Federation, after granting a deferral of serving a sentence, it can be seven years, but it can be less if the period of treatment and medical and social rehabilitation was appointed by the court in the amount of less than five years, and maybe more if the remission period was more than two years .
The grounds for the abolition of the postponement of serving a sentence by a convict recognized as a drug addict, in accordance with Parts 2, 4 and 5 of Article 82.1 of the Criminal Code, the following circumstances are:
1) The convict's refusal to undergo a course of treatment for drug addiction, as well as medical and social rehabilitation.
2) Evasion of treatment after a warning announced by the body exercising control over the behavior of the convict.
3) Commitment during the period of deferral of serving a sentence of a new crime not specified in Part 1 of Article 82.1 of the Criminal Code.
In the first two cases, the court, on the proposal of the penitentiary inspection, cancels the deferral of serving the sentence and sends the convicted person to serve the sentence to the place appointed in accordance with the court's verdict. In the latter case, the court cancels the deferral of serving the sentence, imposes a sentence in accordance with the rules provided for in Part 5 of Article 69 of the Criminal Code "Sentencing on the basis of cumulative crimes" or Article 70 of the Criminal Code "Sentencing on the basis of cumulative sentences", and sends the convicted person to serve the sentence in a place appointed in accordance with the verdict of the court.
A convict is considered to be evading a course of treatment for drug addiction, as well as medical and social rehabilitation, if he, without refusing to undergo them, does not attend or arbitrarily left a medical institution and (or) an institution of medical and social rehabilitation, or did not comply twice with the instructions of the attending a doctor, or continues to use narcotic drugs or psychotropic substances, systematically consume alcoholic beverages, intoxicating substances, is engaged in vagrancy or begging, or has fled from the control of the penitentiary inspection and his location has not been established for more than 30 days (part 7 of article 178.1 PEC RF).
This type of exemption from punishment was introduced into the Criminal Code of the Russian Federation by the Federal Law of 07.12. 2011 No. 420-FZ. By its nature, this is a special type of exemption from punishment due to illness (Article 81 of the Criminal Code of the Russian Federation).
foundation to grant a deferral of serving a sentence to drug addicts is a significant reduction in the public danger of a person who has committed the crimes specified in the law related to the illegal circulation of narcotic drugs and psychotropic substances or their analogues, due to the voluntary completion of a course of treatment for drug addiction, as well as medical rehabilitation, social rehabilitation, in as a result, the possibility of recidivism of these crimes is reduced.
Postponement of serving a sentence for drug addicts can be applied in the presence of the following conditions:
- a) the commission of a crime under Part 1 of Art. 228, part 1 of Art. 231 or art. 233 of the Criminal Code of the Russian Federation;
- b) the crime was committed for the first time;
- c) the perpetrator was sentenced to imprisonment (when convicted to other types of punishment, this deferment does not apply);
- d) the convict is recognized as a drug addict and has expressed a desire to voluntarily undergo a course of treatment for drug addiction, as well as medical rehabilitation, social rehabilitation.
If these conditions exist, the court may defer serving a sentence of imprisonment until the end of treatment, medical rehabilitation, social rehabilitation, but no more than five years.
Within the meaning of the law, a deferral of serving a sentence to drug addicts can be granted both before serving, and during the period of serving deprivation of liberty.
It should be borne in mind that the use of a deferment of serving a sentence for drug addicts is limited to the commission of crimes under Part 1 of Art. 228, part 1 of Art. 231, Art. 233 of the Criminal Code of the Russian Federation. In the event that the court establishes the fact that a convict, recognized as a drug addict, whose serving of a sentence has been suspended, has committed a crime not specified in Part 1 of Art. 82.1 of the Criminal Code of the Russian Federation, the court, on the proposal of the body exercising control over the behavior of the convict, cancels the deferral of serving the sentence, imposes punishment according to the rules provided for in Part 5 of Art. 69 of the Criminal Code of the Russian Federation, and sends the convict to serve the sentence to the place appointed in accordance with the verdict of the court (part 4 of article 82.1 of the Criminal Code of the Russian Federation).
During the period of deferral of serving a sentence, drug addicts are obliged to voluntarily undergo a course of treatment for drug addiction, as well as medical rehabilitation, social rehabilitation. The imposition of any other obligations on the convict is not provided by law.
The execution of a court decision on the postponement of serving a sentence by a drug addict is assigned to the penitentiary inspection at the place of residence of the convicted person. The penitentiary inspection carries out control for the behavior of the convict during the period of deferral of serving the sentence and for him to undergo treatment for drug addiction, as well as medical rehabilitation, social rehabilitation in accordance with the penitentiary legislation (Article 178.1 of the Penal Code of the Russian Federation). The procedure for exercising control is determined by regulatory legal acts approved by the federal executive body that performs the functions of developing and implementing public policy and legal regulation in the field of execution of criminal penalties, together with the federal executive body responsible for the development of state policy and legal regulation in the field of healthcare, in agreement with the Prosecutor General's Office of the Russian Federation.
After completing a course of treatment for drug addiction, medical rehabilitation, social rehabilitation and in the presence of an objectively confirmed remission, the duration of which after the end of treatment and medical and social rehabilitation is at least two years the court releases the convict, recognized as a drug addict, from serving the sentence or the remainder of the sentence (part 3 of article 82.1 of the Criminal Code of the Russian Federation).
The law establishes the legal consequences of violation of the obligation related to the course of treatment for drug addiction, as well as medical rehabilitation, social rehabilitation. If a convict who has been declared addicted to drug addiction, whose sentence has been suspended, refuses to undergo treatment for drug addiction, as well as medical rehabilitation or social rehabilitation, or evades treatment after a warning announced by the body exercising control over the behavior of the convict, the court, on the proposal of this body cancels the postponement serving the sentence and sends the convict to serve the sentence to the place appointed in accordance with the court verdict (part 2 of article 82.1 of the Criminal Code of the Russian Federation). Thus, the deferral of punishment for drug addicts is a conditional type of release from punishment.
The condemned is considered evading from undergoing a course of treatment for drug addiction, as well as medical and social rehabilitation, if he, without refusing to undergo them, does not attend or arbitrarily left a medical institution and (or) an institution of medical rehabilitation or social rehabilitation, or did not comply twice with the prescription of the attending physician, either continues to use narcotic drugs or psychotropic substances, systematically consume alcoholic beverages, intoxicating substances, is engaged in vagrancy or begging, or has fled from the control of the penitentiary inspection and his location has not been established for more than 30 days (part 7 of article 178.1 of the Penal Code of the Russian Federation ).
The law establishes more stringent than under parole from serving a sentence, the legal consequences of committing a new crime during the period of this type of deferral of serving a sentence. According to part 5 of Art. 82.1 of the Criminal Code of the Russian Federation, if during the period of deferral of serving a sentence, a convict recognized as a drug addict committed a new crime, the court cancels the postponement serving a sentence, assigns him punishment according to the rules, provided for by Article. 70 of the Criminal Code of the Russian Federation, and sends the convict to the place appointed in accordance with the verdict of the court.
Federal Law No. 420-FZ of December 7, 2011 “On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation” introduced a new measure of a criminal law nature that provides for the possibility of exemption from criminal punishment in the form of imprisonment - deferral of serving punishment for drug addicts.
Thus, as noted in the explanatory note to the draft law, an additional incentive is created for conscientious completion of a course of treatment by drug addicts and convicts for the first time and their subsequent social adaptation. It is assumed that the mechanism for granting a deferral of execution of punishment to persons who have committed crimes of small and medium gravity in the field of drug trafficking for the first time and who suffer from drug addiction will meet the goals of further humanization of the criminal legislation of the Russian Federation.
Thus, the erroneous, according to representatives of science and practice, decision to exclude in 2003 from the Criminal Code of the Russian Federation the provision on the application of a coercive measure of a medical nature to persons who have committed a crime and are recognized as suffering from drug addiction and alcoholism has been partially corrected (for more details, see § 2 of Chapter 2 ).
The provisions of the Criminal Code and Penal Code of the Russian Federation regarding the deferral of serving sentences for persons recognized as drug addicts began to apply from January 1, 2012, however, the appointment of a deferral is also possible for persons who committed the relevant acts before this date, since the Federal Law of December 7, 2011 does not contain restriction on the entry into force of Art. 82-1 of the Criminal Code of the Russian Federation 153, including those convicted and serving sentences, including deprivation of liberty (for example, at the time the provisions of the Criminal Code on a new type of deferment came into force, 4,077 persons convicted for the first time for committing crimes under Part 1 of Art. 228, articles 231 and 233 of the Criminal Code of the Russian Federation 154).
According to Art. 82.1 of the Criminal Code of the Russian Federation, sentenced to imprisonment, recognized as a drug addict, who committed the first crime under Part 1 of Art. 228, part 1 of Art. 231 and Art. 233 of the Criminal Code of the Russian Federation, and who has expressed a desire to voluntarily undergo a course of treatment for drug addiction, as well as medical rehabilitation, social rehabilitation, the court may defer serving a sentence of imprisonment until the end of treatment and medical and social rehabilitation, but not more than five years. Federal Law No. 221-FZ of July 23, 2013 “On Amendments to Article 83 of the Criminal Code of the Russian Federation and Article 399 of the Code of Criminal Procedure of the Russian Federation” establishes that when a convicted person is granted a deferral of serving a sentence, the statute of limitations is suspended. In this case, the statute of limitations resumes from the end of the period of deferral of serving the sentence, with the exception of cases provided for in Part 3 of Art. 82.1 of the Criminal Code of the Russian Federation, or from the moment of the abolition of the deferment of serving a sentence 155 .
Condition application of the delay is the law-abiding behavior of the convict that meets the requirements established by the criminal and penitentiary legislation, ensuring that the convict undergoes treatment and measures of social rehabilitation.
formal grounds application of the considered type of delay are:
1. commission by a person of a crime provided for by the first parts of Art. 228, 231 and Art. 233 of the Criminal Code of the Russian Federation;
2. the commission of these crimes for the first time;
3. recognition of the convict as a drug addict;
4. conviction to punishment in the form of deprivation of liberty, and not to another type of punishment;
5. expressing to convicts a desire to voluntarily undergo treatment for drug addiction, as well as medical and social rehabilitation.
1. commission by a person of a crime provided for by the first parts of Art. 228, 231 and Art. 233 of the Criminal Code of the Russian Federation.
Thus, the range of crimes, the commission of which may entail the application of a deferment of serving a sentence, is insignificant, it is limited to three criminal acts committed in the absence of any qualifying circumstances: a) Illegal acquisition, storage, transportation, manufacture, processing without the purpose of selling narcotic drugs, psychotropic substances or their analogues in a significant amount, as well as illegal acquisition, storage, transportation without the purpose of sale of plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, in a significant amount; b) Illicit cultivation on a large scale of plants containing narcotic drugs or psychotropic substances or their precursors; c) Illegal issuance or forgery of prescriptions or other documents giving the right to receive narcotic drugs or psychotropic substances.
2. These crimes (Part 1, Articles 228, 231, Article 233 of the Criminal Code of the Russian Federation) must be committed for the first time.
The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, in response to questions received in this regard, indicated: a person is the first to commit one or more crimes under Part 1 of Art. 228, part 1 of Art. 231, Art. 233 of the Criminal Code of the Russian Federation, provided that not for one of them it is not condemned... In accordance with Part 6 of Art. 86 of the Criminal Code of the Russian Federation, the redemption or removal of a criminal record annuls all legal consequences associated with a criminal record. Therefore, a person will be considered to have committed a crime for the first time (having no criminal record) 156 .
However, if a crime not specified in Part 1 of Art. 82.1 of the Criminal Code, committed by a person before the court's verdict in the first case (on a crime falling under the signs of part 1 of article 228, part 1 of article 231 or article 233 of the Criminal Code), the court, on the proposal of the penitentiary inspection, cancels the deferment, appoints punishment according to the rules, under Part. 5 Article. 69 of the Criminal Code, and sends the convict to serve the sentence to the place designated by the court's verdict.
3. recognition of the convict as a drug addict.
According to Art. Art. 1, 44 of the Federal Law of January 8, 1998 No. 3-FZ “On Narcotic Drugs and Psychotropic Substances” drug addiction is a disease caused by dependence on a narcotic drug or psychotropic substance, and a person who, according to the results of a medical examination, is diagnosed as a drug addict is recognized as “ addiction"; the corresponding examination is carried out in health care institutions specially authorized for this by the health authorities, at the direction of the bodies of inquiry, the body carrying out operational-search activities, the investigator or the judge - if they have sufficient grounds to believe that the person is addicted to drugs 157 .
4. Conviction to punishment in the form of deprivation of liberty, and not to another type of punishment.
According to the current legislation, drug addicts sentenced to deprivation of liberty undergo treatment in places of serving sentences. While when convicted to other types of punishment, the court has the right to oblige the convicted person to undergo a course of treatment for drug addiction, as well as medical and social rehabilitation, only in accordance with Art. 72.1 of the Criminal Code of the Russian Federation. It is obvious that the postponement is also inapplicable when imposing a sentence of imprisonment on probation. Moreover, with a conditional conviction, the court has the right to oblige the convicted person to undergo a course of treatment for drug addiction, it is this option that is more understandable, and therefore is in demand in practice.
In addition, the deferral in question cannot be applied to minors, since, according to Part 6 of Art. 88 of the Criminal Code of the Russian Federation, a sentence in the form of deprivation of liberty may not be imposed on a minor convict who has committed a crime of small or medium gravity for the first time under the age of sixteen, as well as on other minor convicts who have committed crimes of small gravity for the first time.
5. expressing to convicts a desire to voluntarily undergo treatment for drug addiction, as well as medical and social rehabilitation.
When considering cases under Part 1 of Art. 228, part 1 of Art. 231, Art. 233 of the Criminal Code of the Russian Federation, the court must explain the rights provided for by Art. 82-1 of the Criminal Code of the Russian Federation, and those defendants in respect of whom there is no evidence in the case that they are drug addicts. The court, if there are grounds, is obliged to find out the desire of not only the defendant, but also the convict (in order to execute the sentence) to undergo a course of treatment and rehabilitation. The desire of the defendant to voluntarily undergo treatment for drug addiction can be expressed both in writing and orally (in this case, such a request is reflected in the minutes of the court session) at any stage of the process before the court retires to the deliberation room.
The period for which the serving of a sentence may be deferred is also defined in Part 1 of Art. 82.1 of the Criminal Code of the Russian Federation: until the end treatment And medical and social rehabilitation but not more than five years. However, Part 3 of Art. 82.1 of the Criminal Code of the Russian Federation states: “After completing a course of treatment for drug addiction and medical rehabilitation, social rehabilitation and in the presence of an objectively confirmed remissions, the duration of which after the end of treatment and medical rehabilitation, social rehabilitation is at least two years, the court releases the convict, recognized as a drug addict, from serving the sentence or the remainder of the sentence.
Thus, the legislator at the same time: establishes a deadline for deferment - 5 years, but, moreover, connects its duration with the terms: a) treatment, b) medical and social rehabilitation, c) remission.
Federal Law No. 313-FZ of November 25, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” art. 1 of the Federal Law of January 8, 1998 No. 3-FZ "On Narcotic Drugs and Psychotropic Substances" was supplemented with definitions for the treatment and rehabilitation of drug addicts.
The treatment of drug addicts is defined as a set of medical interventions performed as prescribed by a medical professional, the purpose of which is to eliminate or alleviate the manifestations of drug addiction or related conditions, restore or improve health, working capacity and quality of life.
Under the rehabilitation of drug addicts, it is proposed to understand a set of measures of a medical, psychological and social nature aimed at full or partial restoration of the functions of the affected organ or body system and (or) compensation for lost functions, as well as the maximum possible restoration and (or) formation of social skills and skills of psychological stability.
Medical and social rehabilitation drug addicts is also defined as a set of medical, psychological, pedagogical, legal and social measures aimed at restoring physical, mental, spiritual and social health, the ability to function in society (reintegration) without using drugs (paragraph 33 of the Strategy of the State Anti-Drug Policy of the Russian Federation until 2020 G.).
Under remission in medicine, it is understood as a temporary weakening or disappearance of the symptoms of a disease.
Thus, we believe that the current version of Art. 82.1 of the Criminal Code of the Russian Federation provides that the court, when determining the duration of the deferral of serving a sentence for a convicted drug addict, must proceed from the fact that this period includes: 2) a two-year period during which the presence of remission and (or) cure is confirmed. In this case, the total duration of the delay cannot exceed five years.
The considered delay can be applied both when imposing a sentence and in the process of serving it, but only when applying a punishment in the form of deprivation of liberty.
The procedure for exercising control - in accordance with Part 4 of Art. 178.1 of the Criminal Code of the Russian Federation - should be determined by regulatory legal acts approved by the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of execution of criminal penalties, together with the federal executive body responsible for developing state policy and regulatory - legal regulation in the field of healthcare, in agreement with the Prosecutor General's Office of the Russian Federation. However, no such regulation has yet been adopted.
In case of violation by the convict of the conditions granting a deferment (i.e. if the convict does not refuse to undergo a course of treatment and medical and social rehabilitation, nevertheless, violates the requirements established by criminal and penitentiary legislation that ensure that the convict takes these measures), the penitentiary inspection announces a warning.
The grounds for the cancellation of the delay in connection with the unlawful behavior of the convicted person, indicating the inappropriateness of the further application of this measure of a criminal law nature, are named in Part 6 of Art. 178 of the Penal Code of the Russian Federation and part. 5, 5 art. 82.1 of the Criminal Code of the Russian Federation:
1. Refusal to undergo treatment for drug addiction, as well as medical and social rehabilitation. It should be noted again that the convict's refusal to undergo medical and social rehabilitation in a state medical institution due to his choice of a private (but licensed) clinic does not imply the abolition of the suspension of serving a sentence in connection with the refusal to undergo a course of treatment and rehabilitation 158 ;
2. Evasion from undergoing treatment for drug addiction, as well as medical and social rehabilitation after the announcement of a warning by the penitentiary inspection ( malicious evasion from the course of treatment and rehabilitation);
3. Establishment by the court of the fact of committing before application postponement by convicted, recognized as drug addict, whose sentence is suspended, a crime not specified in Part 1 of Art. 82. Criminal Code of the Russian Federation (the final punishment is imposed according to the rules provided for in Part 5 of Article 69 of the Criminal Code of the Russian Federation);
In these cases, the penitentiary inspection at the place of his residence submits to the court a proposal to cancel the deferment of serving the sentence and to send the convicted person to serve the sentence imposed by the court.
4. Commitment during the period of suspension of serving a sentence any a new crime, including crimes of minor gravity, including careless ones (punishment is imposed according to the rules provided for in Article 70 of the Criminal Code of the Russian Federation).
In all cases of cancellation of the deferment, the time actually expired is not included in the term of punishment.
After the convict undergoes a course of treatment for drug addiction, as well as medical and social rehabilitation and in the presence of remission, the duration of which after the end of treatment and medical and social rehabilitation is at least two years, the penitentiary inspection at the place of residence of the convict according to the doctor's opinion and the behavior of the convicted person sends a submission to the court on the release of the convicted person from serving the sentence or the remainder of the sentence.
In Art. 82 of the Criminal Code provides for an optional basis for exemption from punishment for pregnant women and women with children under the age of 14.
According to part 3 of Art. 26, part 5 of Art. 42, paragraph "a" part 2 of Art. 55, art. 177 PEC RF respite from serving a sentence may be granted from the following types of punishment :
a) compulsory work;
b) correctional work;
c) restriction of freedom;
d) imprisonment.
Grounds for release Pregnancy of the defendant or convict, or the presence of a minor child under the age of 14, is excluded from punishment, since in the presence of such circumstances, the corrective effect of the actually served sentence is significantly more difficult.
However, a reprieve from serving a sentence is not granted to women sentenced to imprisonment for more than 5 years for grave and especially grave crimes against a person.
Pregnancy is established on the basis of a medical report, and the presence of a minor child - a birth certificate, a court decision on adoption or a certificate of the presence of a child.
Pregnant women and women with young children under the age of 14 may be exempted:
1) from actually serving the sentence in full when sentencing. When sentencing a pregnant woman and a woman with a child under the age of 3 years, a deferral of serving such types of punishment as correctional labor and imprisonment may be granted. Compulsory work and restriction of freedom are not applied to these categories of persons (part 4 of article 49, part 5 of article 53 of the Criminal Code). A woman who has a child between the ages of 3 and 14 may also be granted a deferment from the actual serving of compulsory work;
2) from further punishment . A pregnant woman or a woman with a minor child under the age of 14 who is serving a sentence may be exempted from such types of punishment as compulsory work, corrective labor, restriction of freedom or imprisonment. At the same time, pregnant women serving deprivation of liberty may be granted a deferment regardless of the gestational age. Pregnant women who are serving a sentence in the form of compulsory labor, correctional labor or restriction of liberty may be granted a deferment only from the day when, in accordance with the Labor Code of the Russian Federation, she has the right to maternity leave.
Suspension from serving a sentence represents conditional exemption from punishment. She can be canceled in the following cases:
but) if the woman abandoned the child. Abandonment of a child should be understood as an official statement made by the mother of the child to the relevant authorities;
b) if she continues to evade the upbringing of the child and care for him after a warning issued by the penitentiary inspection, which monitors her behavior. A convicted woman is considered to be avoiding raising a child and caring for him if she, without officially abandoning the child, left him in a maternity hospital or transferred him to an orphanage, or leads an antisocial lifestyle, or left the child to relatives or other persons, or disappeared, or commits other actions indicating evasion from raising a child (part 4 of article 178 of the Penal Code of the Russian Federation);
in) During the suspension period, the convicted person committed a new crime.
The first two bases are optional, i.e. it is up to the discretion of the court to decide whether to revoke or maintain the postponement. At the same time, the court makes such a decision only on the proposal of the penitentiary inspection, which monitors the behavior of the convict. In addition, in all cases it is necessary to establish whether the statute of limitations for a conviction under Art. 83 of the Criminal Code. If the deferment is canceled on the first and second grounds, the convict is sent to serve the sentence in the place appointed by the court verdict.
If a convicted person commits a new crime, both intentional and reckless, during the period of suspension of serving a sentence, the court is obliged to cancel the suspension and impose a punishment according to the totality of sentences.
When the child reaches the age of 14 (if the convict has two or more young children, then upon reaching the specified age youngest child) the court makes one of two decisions :
a) either release the convicted person from serving the sentence or the remainder of the sentence;
b) or replaces the remaining part of the punishment with a milder form of punishment.
The court also makes one of these decisions in the event of the death of a child (part 5 of article 178 of the Penal Code of the Russian Federation). When making a decision, the court takes into account the nature and degree of public danger of the committed crime, the behavior of the convicted person, her attitude to the upbringing of the child, the served and unserved terms of punishment. However, if the statute of limitations for a guilty verdict has expired, established by Art. 83 of the Criminal Code, the convicted person is subject to mandatory release from punishment.
Article 82
A pregnant woman, a woman with a child under the age of fourteen, a man with a child under the age of fourteen and who is the only parent, except for those sentenced to restriction of liberty, to imprisonment for crimes against the sexual integrity of minors under the age of fourteen, to imprisonment for a term of more than five years for grave and especially grave crimes against a person, the court may defer the actual serving of the sentence until the child reaches the age of fourteen.
2. If the convicted person referred to in the first part of this article has abandoned the child or continues to evade the duties of raising the child after a warning announced by the body exercising control over the behavior of the convicted person in respect of whom the serving of the sentence has been suspended, the court may, upon presentation of this body to cancel the suspension of serving the sentence and send the convict to serve the sentence to the place appointed in accordance with the verdict of the court.
When the child reaches the age of fourteen, the court releases the convicted person specified in the first part of this article from serving the sentence or the remaining part of the punishment with the removal of the conviction, or replaces the remaining part of the punishment with a milder type of punishment.
4. If before the child reaches the age of fourteen, a period equal to the term of the sentence, the serving of which was suspended, has expired, and the body exercising control over the behavior of the convicted person, in respect of whom the serving of the sentence has been suspended, has come to the conclusion that the convicted person has complied with, specified in part one of this article, conditions of deferral and its correction, the court, on the proposal of this body, may decide to reduce the period of deferral of serving the sentence and to release the convicted person from serving the sentence or the remainder of the sentence with the conviction expunged.
5. If, during the period of suspension of serving a sentence, the convict, specified in the first part of this article, commits a new crime, the court imposes a punishment on him in accordance with the rules provided for in Article 70 of this Code.
This type of exemption from punishment is conditional and is applied at the discretion of the court, taking into account all the circumstances of a particular case.
To drug addicts convicted of crimes under Part 1 of Art. 228, part 1 of Art. 231 and Art. 233 of the Criminal Code, other rules on release from punishment, including conditional conviction, can be applied. In this case, the court has the right to impose on the conditionally convicted person the obligation to undergo treatment for drug addiction on the basis of Part 5 of Art. 72 of the Criminal Code.
Grounds for release from punishment- the possibility of correcting a person suffering from drug addiction, sentenced to punishment in the form of freedom for the crimes under Part 1 of Art. 228, part 1 of Art. 231 and Art. 233 of the Criminal Code, without actually serving a sentence. Release conditions:
no criminal record at the time of the crime;
A statement of a person to the court about the desire to voluntarily undergo a course of treatment for drug addiction and subsequent medical and social rehabilitation;
Subsequent successful completion of a course of treatment for drug addiction and medical and social rehabilitation and objectively confirmed remission, the duration of which after the end of treatment and medical and social rehabilitation is at least two years;
Not committing new crimes after applying the deferment;
Failure to commit crimes not specified in Part 1 of Art. 82 1 of the Criminal Code, before the application of the deferment.
The law allows the application of this type of deferment only to persons recognized as drug addicts. To recognize a person as a drug addict, the court needs special knowledge in the field of medicine, which involves a forensic medical examination, regardless of the stage of legal proceedings.
A systematic interpretation of the law leads to the conclusion that the deferment cannot be applied to persons who have a criminal record for any crime, with the exception of crimes under Part 1 of Art. 228, part 1 of Art. 231 and Art. 233 of the Criminal Code, including for crimes of minor gravity, negligent crimes and crimes for which a punishment not related to deprivation of liberty has been imposed.
The term of delay is not strictly defined by law; this is the period necessary for the completion of treatment and medical and social rehabilitation, but not more than five years. In practice, this period is determined by the attending physician, who gives an opinion and objectively confirms (or denies) a two-year remission.
Grounds for canceling a deferral:
1) refusal to undergo a course of treatment for drug addiction or medical and social rehabilitation;
2) evasion of treatment after a warning from the penitentiary inspection;
3) conviction for any crime committed before the application of the deferment, except for the crimes specified in Part 1 of Art. 82 1 of the Criminal Code;
4) committing any new crime during the grace period.
Article 82.1. Postponement of serving sentences for drug addicts
1. Sentenced to imprisonment, recognized as a drug addict, having committed a crime for the first time provided for by part one of Article 228, part one of Article 231 and Article 233 of this Code, and who has expressed a desire to voluntarily undergo treatment for drug addiction, as well as medical and social rehabilitation, the court may defer serving a sentence of imprisonment until the end of treatment and medical and social rehabilitation, but not more than five years.
2. In case if the convict who has been recognized as a drug addict, whose sentence has been suspended, has refused to undergo a course of treatment for drug addiction, as well as medical and social rehabilitation, or evades treatment after a warning announced by the body exercising control over the behavior of the convict, the court, on the proposal of this body, cancels the postponement of serving the sentence and sends the convict to serve the sentence to the place appointed in accordance with the court's verdict.
3. After completing a course of treatment for drug addiction and medico-social rehabilitation and in the presence of an objectively confirmed remission, the duration of which after the end of treatment and medico-social rehabilitation is at least two years, the court releases the convict, recognized as addicted to drug addiction, from serving the sentence or the remainder of the punishment.
4. If the court establishes the fact that a convict recognized as a drug addict, whose sentence has been suspended, has committed a crime not specified in part one of this article, the court, on the proposal of the body exercising control over the behavior of the convict, cancels the postponement of serving the sentence, imposes punishment in accordance with the rules provided for by paragraph five of Article 69 of this Code, and sends the convict to serve the sentence to the place appointed in accordance with the verdict of the court.
5. If, during the period of deferment of serving a sentence, a convict recognized as a drug addict has committed a new crime, the court shall cancel the deferral of serving the sentence, impose a punishment on him in accordance with the rules provided for in Article 70 of this Code, and sends the convicted person to the place appointed in accordance with the verdict of the court.
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