17^th CONFERENCE OF CHIEF JUSTICES OF SHANGHAI COOPERATION ORGANISATION
Chief Justice Lebedev’s report on appointment of alternative types of criminal punishment

Dear Mr. Zhang Ming,

Dear Mr. Shohiyon,

Dear Conference participants, 

In accordance with the principles of justice and humanism provided for in Articles 6 and 7 of the Criminal Code of the Russian Federation, punishment and other criminal law measures must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator; they cannot be aimed at causing physical suffering or humiliating human dignity.

In pursuit of these legislative provisions, systematic and consistent measures are being implemented in the Russian Federation, aimed at individualization of criminal punishments.

Over the past 20 years, the Plenary Session of the Supreme Court of Russia has addressed the issues of sentencing more than 50 times, and during this period the number of persons sentenced to deprivation of liberty has decreased more than twice – from 356,000 persons in 2001 to 159,000 persons in 2021.

Last year, 29 % of the convicted persons were sentenced to deprivation of liberty; most of those convicts committed grave and especially grave crimes, while 30 % of persons sentenced to deprivation of liberty already had a criminal record, and 42 % had two or more criminal records.

27 % of convicted persons were sentenced to suspended deprivation of liberty, and 12 % of convicted persons were fined.

16 % of convicted persons were sentenced to compulsory labour, i.e. performance of community service free of charge in the time beyond their primary employment or study.

8 % of convicted persons were sentenced to corrective works, which are assigned to both employed and unemployed persons, whereby 5 to 20 % of their monthly income is deducted into the state budget.

For the purpose of broader application of punishments alternative to deprivation of liberty, since 10 January 2010 the Criminal Code of the Russian Federation provides for punishment in the form of restriction of liberty, which last year was inflicted on 21.5 thousand convicts or 4 %.

Since 11 March 2011, the lower limit of the sanction in the form of deprivation of liberty has been eliminated for 68 crimes.

The category of minor gravity crimes now includes crimes for which the maximum penalty does not exceed three, instead of two, years of deprivation of liberty. This allowed limiting the use of strict types of punishments and pre-trial restriction measures for these crimes.

A deferred sentence in the form of deprivation of liberty is provided to persons who have been sentenced for the first time for crimes of minor gravity in the field of drug trafficking, who suffer from drug addiction and who have expressed a desire to voluntarily undergo a course of treatment. After the expiration of the prescribed period, depending on the results of treatment, such persons may be released from punishment. Thus, additional opportunities for social adaptation of this category of persons have been created.

Since 1 January 2017, compulsory labour has been used as an alternative to deprivation of liberty, which was assigned to 1,300 convicts in 2021.

When imposing punishments, circumstances mitigating punishment were taken into account in respect of 87 % of convicts, while 22,200 persons or 4 % were given a more lenient punishment than provided for by the sanction of the Criminal Code of the Russian Federation.

In relation to 6,800 persons, the category of the crime was changed to a less serious one by the court.

The number of persons against whom criminal prosecution was terminated by the court increased from 2 % in 1999 to 22 % in 2021.

The principles of justice and humanism are also implemented by the courts when resolving issues related to the execution of a sentence, and last year the courts satisfied 46 % of motions for replacement of an unexpired term of deprivation of liberty with a reduced punishment, 53 % of motions for parole and 63 % of motions for release from punishment due to the convict’s illness.

The legal standings of the Russian Supreme Court on the wider application of pre-trial restriction measures not related to pre-trial custody contribute to the improvement of criminal proceedings.

Compared with 2001, when this pre-trial restriction measure used to be appointed by prosecutors, the number of persons to whom it was applied decreased four times – from 366,000 in 2001 to 87,900 in 2021, while 76 % of those persons were accused of grave and especially grave crimes, and 53 % had criminal records.

Strengthening the legal protection of suspects and accused persons is facilitated by the legal standings of the Supreme Court of Russia on the wider application of pre-trial restriction measures not related to the remand in custody.

Since 1992, based on the proposals of the first All-Russia Congress of Judges and of the Russian Supreme Court, judicial control over the legality and validity of arrest and extension of the period of custody has been established.

Due to the adoption of the new Criminal Procedure Code of the Russian Federation in 2002, the pre-trial restriction measure in the form of pre-trial custody is selected and extended only in the judicial manner.

Compared with 2001, when the restrictive measure in the form of pre-trail custody was selected in extrajudicial procedure, the number of persons to whom it was applied decreased four times – from 366,000 in 2001 to 87,900 in 2021, while 76 % of them were accused of committing grave and especially grave crimes, and 53 % had criminal records.

The number of persons held in institutions of the penitentiary system has almost halved over the past 20 years – from 925,166 persons as of 1 January 2001 to 465,896 persons as of 1 January 2021.

Increased attention is paid to the features of court consideration of criminal cases against underage persons.

Since 11 December 2003, the maximum penalties for crimes not classified as especially grave and committed for the first time by persons under 16 years of age have been reduced from 10 to 6 years of deprivation of liberty.

It is prohibited to impose deprivation of liberty on persons who committed a minor or medium-gravity crime for the first time at the age under 16, as well as persons who committed a minor crime for the first time at the age between 16 and 18.

In relation to juvenile defendants, a two-fold decrease in the lower limit of the term of deprivation of liberty for grave and especially grave crimes has been stipulated.

Over the past 20 years, the Plenary Session of the Supreme Court of the Russian Federation has adopted more than 30 rulings containing legal standings on the imposition of punishment and selection of pre-trial restriction measures for underage persons.

The number of juvenile convicts during this period decreased from 140,000 persons in 2001 to 15,200 persons in 2021, that is, 9 times.

2,600 underage persons or 17 % were sentenced to actual deprivation of liberty last year, which is 11 times less than in 2001, when 29,800 underage persons were sentenced to actual deprivation of liberty.

At the same time, 75 % of underage persons sentenced to deprivation of liberty committed grave and especially grave crimes, 56 % committed crimes as part of a group of persons, and half of them had previous criminal records.

The number of underage persons serving sentences in young offender institutions has decreased 20 times – from 17,190 persons as of 1 January 2001 to 842 persons as of 1 January 2021.

The number of motions granted by the courts for selection of a pre-trial restriction measure in the form of pre-trial custody has decreased almost 10 times in relation to underage persons – from 6,300 motions in 2002 to 661 motions in 2021.

The Supreme Court of Russia also monitors the court practice of consideration of criminal cases on crimes in the sphere of entrepreneurial and other economic activities, where last year the courts terminated criminal prosecution against 33 % of the accused, and only 9 % of convicted persons were sentenced to deprivation of liberty.

For this category of criminal cases, an exceptional procedure for selecting the pre-trial restriction measure in the form of pre-trial custody is stipulated, according to which this measure can be only applied if the suspect or accused does not have a permanent place of residence in the territory of the Russian Federation, his/her identity has not been confirmed, he/she violated the previously selected pre-trial restriction measure, or absconded during the preliminary investigation or trial.

Since 13 August 2019, at the legislative initiative of the Supreme Court of the Russian Federation, the Criminal Procedure Code of the Russian Federation has been supplemented with provisions excluding unreasonable extension of the period of pre-trial custody for persons accused of crimes of this category, including in case of ineffective work of investigative bodies.

At the legislative initiative of President of the Russian Federation V.V. Putin, from 12 April 2020 it is stipulated that the founders, managers and employees of a legal person, managers and employees of its structural units are not subject to criminal liability for organizing a criminal community or participation in it based only on the organizational structure of the legal person, except where the legal person, its structural unit were deliberately created to commit one or several grave or especially grave crimes.

Last year, the courts of the Russian Federation stopped criminal prosecution against 54 % of persons accused of organizing a criminal community or participating in it.

Since 8 December 2011, the possibility of exemption from criminal liability of a person who has committed an economic crime for the first time has been provided, subject to the full restitution of damages and transfer of a monetary compensation to the federal budget in the amount prescribed by law, and since 8 January 2019, the list of crimes subject to termination on these grounds has been expanded.

From 26 October 2020, at the legislative initiative of the Supreme Court of Russia, it is possible to terminate criminal cases on tax crimes, subject to restitution of damages, at any stage of the proceedings up to the moment when the court retires to the deliberation room.

The number of persons convicted of tax crimes in 2021 decreased by 21 % compared to 2020, and criminal prosecution against 49 % of the accused was terminated by the courts.

The concept of improving criminal legislation and law enforcement practice provides for the exclusion of negative social consequences of having a criminal record for first-time offenders who do not pose a great public danger.

A criminal record for these categories of crimes prevents one from finding a job and obtaining financial services, causes significant damage to reputation of the convicted person, complicates the restoration of social ties and thereby contributes to the commission of new crimes.

Thus, contrary to the preventive function of criminal liability, conditions are created that contribute to involvement in the criminal environment of persons who have committed minor and medium-gravity crimes for the first time.

Therefore, since 15 July 2016, at the legislative initiative of the Supreme Court of the Russian Federation, it is possible to terminate a criminal case of a minor or medium-gravity crime committed for the first time with the imposition of a court fine; the number of persons criminal prosecution against whom was terminated by the courts on these grounds has increased from 5,700 persons in 2016 to 19,000 persons in 2021.

In addition, at the legislative initiative of the Supreme Court of the Russian Federation, since 15 July 2016, battery, non-payment of money for the maintenance of children or disabled parents, as well as petty theft have been decriminalized with the first-time offence regarded as an administrative one. Therefore, the number of persons convicted of these crimes decreased by 24,500 persons or by 22 % (from 109,700 persons in 2016 to 85,200 persons in 2021).

Criminal cases of battery, intentional infliction of minor injury to health and libel are classified as cases of private prosecution, which can be initiated at the request of the victim or his/her statutory representative and are subject to termination in case of reconciliation of the victim with the accused.

As a general rule, an inquiry is not conducted in this category of cases, and the duties of collecting evidence and maintaining prosecution in court are assigned to the victim.

Last year, criminal cases against 9,800 persons were considered in the manner of private prosecution, of which 4,000 persons or 41 % were convicted, 713 persons or 7 % were acquitted; criminal cases against 5,100 persons or 52 % were terminated.

Given that the victims are not endowed with public powers and for the most part are not professional lawyers, it is extremely difficult for them to fulfil their obligation to collect evidence, especially in cases related to “domestic violence”, which is latent in nature and is most often characterized by the dependent position of the victim.

In this regard, on 6 April 2021, the Supreme Court of the Russian Federation submitted to the State Duma a draft federal law providing for the classification of criminal cases of battery, intentional infliction of minor injury to health and libel as criminal cases of private-public prosecution, in which it is suggested to conduct inquiries.

Granting the court the right, rather than the obligation, to terminate criminal cases in these categories of crimes in view of the reconciliation of the victim and the accused will allow the court to determine whether reconciliation is voluntary and whether the damage caused to the victim has been remedied.

On 13 October 2020, the Plenary Session of the Supreme Court of the Russian Federation submitted to the State Duma an updated version of the draft federal law on the introduction of the institution of criminal misdemeanour, according to which it is proposed to extend this institution to 112 minor and medium-gravity crimes (not related to the use of violence or the activities of organized groups), if they are committed for the first time.

The scope of application of criminal misdemeanour excludes the crimes which are regarded as administrative offences upon first commission, as well as a number of crimes with high public danger, e.g. knowingly false reporting of an act of terrorism, malpractice in the procurement of goods, works, services for state or municipal needs, intentional infliction of minor injury to health, crimes against military service, and others.

The draft law suggests to exempt from criminal liability those who have committed a criminal misdemeanour by inflicting upon them one of the measures of criminal law nature – a court fine, community service or work paid to a limited extent.

The amounts of fines, as well as the time periods of community service and work paid to a limited extent have been reduced two times compared to the corresponding criminal penalties.

The suggestion is to provide for exemption of underage persons, who have committed a criminal misdemeanour, from criminal liability, using one of the measures of educational influence (warning, transfer under the supervision of parents or persons replacing them, or of a specialized state body, imposing an obligation to make up for the damage caused, or restrictions on leisure and establishment of special requirements for the behaviour of the underage person).

The implementation of this legislative initiative will contribute to broader application of measures alternative to criminal punishment.

Last year, the courts of the Russian Federation granted 65 % of motions for clearing of a criminal record, which is allowed subject to restitution of damage caused by the crime and impeccable behaviour of the convicted person after serving the sentence.

On 7 June this year, the Plenary Session of the Supreme Court of Russia drew the attention of the courts to the fact that it is inadmissible to refuse to clear a criminal record on the grounds not stipulated in law, in particular due to the severity of the crime, the existence of other convictions, the leniency of the sentence served and non-admission of guilt.

The Supreme Court of the Russian Federation will continue its work aimed at consolidation of legal guarantees of justice and humanism in criminal proceedings.

The exchange of views on these issues will significantly contribute to the harmonization of legal systems and judicial procedures in the SCO Member States.