Some problematic issues of calculating the terms of criminal record

Sometimes the court imposes not only the main but additional punishment for the committed crime. At the same time, it is possible that a person has served his main punishment and starts or is serving the additional one. The question arises: how and when to calculate the term for cancellation of a criminal record for such a person. Criticizing the position of the researchers proposing to establish the possibility for the terms of criminal records according to the main and additional types of punishment, the author notes that the person is considered to be convicted not for punishment, but for the crime, so it is impossible to divide the criminal record for the same crime into the criminal record on the main punishment and an additional one artificially. The author substantiates the conclusion that to implement the criminological and criminal-legal function of the criminal record, it is necessary to calculate term for cancellation of a criminal record set by Items, "б", "в", “г” and "d" Part 2, Article 86 of the Criminal Code of the Russian Federation, from the moment of serving (execution) of the main and additional punishments. In the event of probation with additional punishment, the convict is in the state of a criminal record for the entire period of probation and serving (execution) of the additional sentence. For probationary convicts, as a category of persons who make up less public danger than those sentenced to an actual serving of the sentence, there are more lenient rules for cancellation of a criminal record than for the persons to whom probation was not applied. Certain benefits for the cancellation of a criminal record should also apply to those probationary convicts who have been given additional punishment. The article substantiates the conclusion that if the period of additional punishment exceeds the court's probationary period for the probationary convict, the criminal record should be cancelled immediately after serving an additional sentence. Analyzing the issues of calculating the terms of criminal records of persons on parole, the author concludes that these persons should be considered having criminal records during the period of the unserved part of the sentence and in those situations where the cancellation of the criminal record provided for in Article 86 of the Criminal Code of the Russian Federation, less than the unserved part of the punishment. During the entire period of the unserved part of the sentence, the criminal-legal relationship between the person on parole and the state remains. One of the problematic situations with the determination of the terms for cancellation of a criminal record is connected with the cases where persons convicted of particularly serious crimes are given a lighter sentence than imprisonment. The author believes that in this case the term for cancellation of the criminal record should be determined by the category of crime and be ten years, regardless the punishment (imprisonment or a more lenient than deprivation of liberty) to which the person liable for the crime has been convicted.

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