Some problematic issues of replacing criminal penalty by a milder type of punishment

Article 80 of the Criminal Code provides for the incentives for those convicts which were positively characterized while serving their sentence in disciplinary military units, during compulsory labor and deprivation of liberty, by replacing the unserved part of their sentence by a milder type of punishment. The authors conclude that it was inappropriate to extend the range of sentences that can be replaced during their serving by milder types of punishment at the expense of life imprisonment and corrective labor. The article analyzes the basis and conditions for the application of the considered incentive measures to the convicts. The basis is a positive behavior of the person during serving their sentence that indicates that the convict followed the way of correction and the completion of correction is possible with a milder type of punishment. Mandatory conditions for changing the punishment to a milder one are: actual serving by the convict of a statutory part of the sentence; full or at least partial recovery of damage caused by the crime. The minimum term to be served is reasonably associated with the category of a committed crime. However, it would be necessary to specify in Article 80 of the Criminal Code of the Russian Federation that with regard to deprivation of liberty an actually served term of imprisonment shall be not less than six months (as it is provided for the parole in Part 4, Article 79 of the Criminal Code of the Russian Federation). Determination of such a period for the persons applying for punishment replacement to a milder type would be expedient, since excessively short terms of imprisonment do not allow concluding with certainty that a person followed the way of correction and, therefore, achievement of the objectives of punishment is possible by means of a milder punishment. The possibility of applying a fine as punishment replacing an unserved part of a more severe punishment is proved. At the legislative level, the question of the ratio between the terms of a milder sentence and an unserved part of a more severe punishment is not resolved. In legal literature and jurisprudence there is no convergence of views on this issue. The article substantiates the conclusion that the duration of a milder punishment, which was replaced by a more severe one should not exceed the unserved part of a more severe punishment. It would be expedient to specify in the Resolution of the Plenum of the Supreme Court of the Russian Federation that the term of a milder punishment imposed according to Article 80 of the Criminal Code of the Russian Federation should not exceed an unserved part of the term of a replaced punishment. This would contribute to a uniform jurisprudence on this issue. It is noted that it is necessary to provide in Article 80 for the situation according to which, in case of malicious evasion by the convict from serving of a milder punishment imposed on him in a replacement procedure, the rules of replacing the punishment by a more severe one prescribed in Part 3, Article 49, Part 4, Article 50, Part 5, Article 53, Part 6, Article 53.1 of the Criminal Code of the Russian Federation have to be applied.

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