The Federal Law of the Russian Federation of December 7, 2011, Article 15 of the Criminal Code of the Russian Federation supplemented part 6, in accordance with which the court is entitled to change the category of crime into less serious.

From the content of the specified norm it follows that the legislator established the necessary conditions for its application. These are three mandatory conditions: the lack of aggravating circumstances, the presence of mitigating the punishment of the circumstances and the appointment of punishment depending on the category of crime in the amount specified in Part 6 of Article 15 of the Criminal Code of the Russian Federation. If these conditions are met, the court has the right to change the category of crime into less serious, but not more than one, if there are sufficient grounds for this: the actual circumstances of the crime and the degree of it public danger.

Analysis of the cassation practice indicates that, as a rule, the courts discusses the issue of applying or non-applications of Part 6 of Art. 15 of the Criminal Code. In the absence of such foundations, the courts reasonably indicate that the actual circumstances of the crime and the degree of its public danger do not allow to apply the provisions of this provision. However, in certain sentences, this issue is not discussed. Such cases must be excluded.

During the period from the moment of entry into force of the Federal Law, from September 7, 2011 to September 2012, the courts of the Tver region changed the category of crime when considering 7 criminal cases against 10 persons.

4 Courts of the region: Bezhetsky urban, Belsky district, Rameshkovsky district and Toropetsky district courts (4 criminal cases) changed the category of crimes on less serious when considering criminal cases on the merits.

The analysis of sentences received for the generalization indicates that the courts incorrectly apply the provisions of Part 6 of Art. 15 of the Criminal Code of the Russian Federation, unreasonably changing the category of crimes.

In sentences, proper motives are not given in the rationale for the provision of grounds for changing the category of crimes, the conclusions of the court contain general judgments that the actual circumstances of the crime and the degree of its public danger allow you to change the category of crimes.

As an example, the verdict of the Bezhetsky City Court of the Tver region of April 13, 2012 in relation to two persons recognized as guilty of the embellishment of entrusted property using official position and official feed torch, as well as in the prevention in the embezzlement.

According to the circumstances established by the court, the circumstances are convicted of the embezzlement of federal budget funds intended to pay college expenses, including business trips to employees of the institution. The estate funds in the amount of 7900 rubles were spent guilty of targets that are not related to official activities - payment by the private nature of the event in honor of the celebration of the New Year.

Changing the category of crimes with a grave for a crime of moderate gravity, the court indicated that the actual circumstances of the embezzlement, the nature and degree of public danger of this crime, the lack of aggravating circumstances, the presence of mitigating circumstances Allow the court to apply the positions of Part 6 of Art. 15 of the Criminal Code.

Thus, the court in the sentence outlined only general judgments in justifying his conclusions, did not specify which factual circumstances of the crime made it possible to change the category of crimes. The court also did not indicate which data indicating a lesser extent of the public danger of a crime was the basis for making such a decision.

What should be understood as a degree of public danger of a crime. The answer to this question is contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 29, 2009 "On some issues judicial practice Appointment and execution of criminal punishment. "

According to paragraph 1 of the ruling, the degree of public danger of the crime is determined depending on the specific circumstances of the deed, in particular the amount of harm and severity of the consequences, the degree of criminal intent, the method of committing a crime, the role of the defendant in a crime committed in complicity, the presence in the deeds that are committed to more than Strict punishment in accordance with the sanctions of articles of the special part of the Criminal Code of the Russian Federation.

It should be noted that in any of the sentences presented for sentences did not contain proper motives in justifying the conclusions about the presence of grounds for changing the category of crime. Of the circumstances set out in court decisions, the circumstances did not follow that there were grounds for the application of the provisions of Part 6 of Art. 15 of the Criminal Code.

Proper motives were not kept in the sentence of Belsky district Court Tver region of February 09, 2012. The guilty was convicted of theft of a musical center with columns with illegal penetration into a dwelling in the amount of 1000 rubles.

This case is considered in special order judicial trial. The court of first instance considered it possible in accordance with Part 6 of Article 15 of the Criminal Code of the Russian Federation, taking into account the actual circumstances of the crime, the degree of its public danger to change the category of crimes, since it established mitigating the circumstances, allowing to appoint the guilty punishment below five years of imprisonment.

This example also indicates that the conclusions of the Court of Change of the Category of Crime contain the formal judgments of the court on the availability of conditions and grounds for applying the provisions of Part 6 of Art. 15 of the Criminal Code.

In 2012, when considering 4 criminal cases, the Toropetic District Court changed the category of crimes committed by convicts.

So, the verdict of August 8, 2012 was convicted under Part 3 of Art. 160 of the Criminal Code of the Russian Federation for the embezzlement of property entrusted to it using his official position. As a result of criminal actions convicted legal entity The material damage is caused in the amount of 80035 rubles 79 kopecks.

The court changed the category of crimes and pointed out the sentence that the defendant committed a crime belonging to the category of grave, there are no circumstances in its actions, aggravating responsibility, therefore there are grounds for changing the category of crimes in connection with the entry into force of the Federal Law of the Federal Law of December 7, 2011 "On Changes in the Criminal Code of the Russian Federation and individual legislative acts of the Russian Federation. "

What mistakes allowed the court, taking such a decision. First, the court did not indicate the grounds for changing the category of crime: such actual circumstances of the crime and the degree of its public danger that makes this conclusion. Secondly, this wording does not contain conditions for the application of Part 6 of Article 15 of the Criminal Code of the Russian Federation - the presence of mitigating the punishment of circumstances, the lack of aggravating circumstances. Thirdly, the court did not discuss the appointment of a sentence not exceeding the legislator under paragraph 6 of Article 15 of the Criminal Code for a certain category of crime.

The legislator established the limits of the appropriate condemned type of sentence for a certain category of crimes, allowing precisely the actual circumstances of the crime and the degree of its public danger in the presence of mitigating the circumstances and the absence of aggravating circumstances to change the crime category for less serious.

Thus, the presence of mitigating and the absence of aggravating the circumstances should be considered as conditions, and the actual circumstances of the crime and the degree of its public danger are grounds for the application of Part 6 of Art. 15 of the Criminal Code.

Meanwhile, the degree of public danger of the incriminated convicted crime by the court is not estimated. There were no grounds for taking into account the category of crime, but it takes it into account.

The sentences of Toropetsky District Court of March 13, 2012 in relation to the convicts for a crime, provided for by Part 1 of Article.318 of the Criminal Code, also changed the category of crime into less serious. At the same time, the court appointed the guilty punishment for the crimes' deals without taking into account, that is, the criminal law applied incorrectly.

The court did not take into account the positions of Part 1 of Art. 56 of the Criminal Code of the Russian Federation on the inadmissibility of the appointment of punishment in the form of imprisonment to persons for the first time committing a crime lightweight In the absence of aggravating circumstances.

The sentence was appointed for the crime committed by him in the form of imprisonment conditionally. Since these persons first committed a crime of small gravity, aggravating the punishment of circumstances did not exist, the sanction part 1 of Art. 318 of the Criminal Code provides for the deprivation of freedom punishment in the form of a fine, by virtue of Part 1 of Art. 56 of the Criminal Code of the Russian Federation they could not be appointed punishment in the form of imprisonment.

As a result of studying the practice of applying part 6 of Art. The 15 Criminal Code has established that the conclusion about the change in the category of crime is contained in the operative part of the sentence, which is correct.

When granting sentences in accordance with the requirements of Article 10 of the Criminal Code, it is also necessary to resolve the issue of either the absence of grounds for changing the category of crime. However, in certain decrees, the legality and validity of which is checked in cassation, this issue is not discussed. This drawback must be eliminated.

Revising sentences at the requests of convicts, the Court do not change the category of crimes and in the rationale for its conclusions lead the same motives as in the consideration of criminal cases on the merits.

However, by Resolution of the Rzhev City Court of May 18, 2012, the category of crimes committed by convicted crimes was changed. At the same time, the court decisions consisted in the case in accordance with Art. 10 of the Criminal Code of the Russian Federation, the court retrained the perpetrators of the criminal law, improving its position, and reduced the appointed sentence. In addition, in the descriptive-motivation part of the decision, it is indicated that the Court changes the category of crimes no less serious for those reasons that the convict was punished without taking into account the rules provided for in Part 2 of Art. 68 of the Criminal Code.

If you analyze this decision, you can conclude that the court incorrectly applied the general part of the Criminal Code of the Russian Federation. Moreover, we can talk about negligence in the preparation of the ruling. Appointment of punishment by the court when considering the case on the merits, excluding the rules of recurrence of crimes

it is not a reason for changing the category of crime.

Applying the positions of the 6th century. 15 of the Criminal Code, it should be borne in mind that the change in the category of crime entails very significant legal consequences, which, in particular, can be expressed in the appointment of another type of correctional institution, in another calculation of the revision of the conviction, change the conditions for conditionally early release from serving sentences, Applications of the provisions of Part 1 of Art. 56 of the Criminal Code. In our opinion, only exceptional circumstances may be the basis for changing the category of crime.

Judge of the Tver Regional Court: V.V. Pavlova

The original article is on the site of the Tver Regional Court

CRIMINAL LAW
Problems of the general part of the Criminal Code of the Russian Federation

V. F. Schepelkov

Problems of the application of the criminal law
Due to the change of Art. 15 of the Criminal Code of the Russian Federation

Categorization of crimes provided for by Art. 15 of the Criminal Code of the Russian Federation is important. The category of crime is determined at different stages of application of criminal law. In particular, criminal liability comes for preparation only for a grave or particularly grave crime, the crime is considered a perfect criminal community (a criminal organization), if it is committed by a structured organized by a group or union of organized groups operating under a single manual, whose members are combined in order to jointly commit one or several grave or especially grave crimes (part 4 of Art. 35 of the Criminal Code of the Russian Federation). Also, the severity of the perfect crime affects the recognition in the deed separate varieties of a dangerous relapse or a particularly dangerous relapse. So, according to paragraph "B" Part 2 of Art. The 18 Code of the Russian Federation recurrence of crimes is considered dangerous in the face of a serious crime, for which it is condemned to the real deprivation of freedom, if earlier this person has been convicted of two or more times for the deliberate crime of moderately. In addition, the severity of the crimes of crimes affects the appointment of the type of correctional institution convicted to imprisonment (Art. 58 of the Criminal Code of the Russian Federation), determines the rules for the appointment of punishment for the aggregate of crimes (Article 69 of the Criminal Code of the Russian Federation) affects the decision to disagree from criminal liability and punishment, etc. In logically, the prescription of Art. 15 of the Criminal Code form the foundation. Therefore, their change inevitably affects the solution of many criminal law issues.

Federal Law of December 7, 2011 No. 420-ФЗ in many articles of the Criminal Code of the Russian Federation, changes were made, including in Art. 15 of the Criminal Code. Adjusting Art. The 15 Criminal Code is due to the continuation of the overall policies of the liberalization of criminal law.

So, from the category of moderate gravity in the category of small severity, crimes were translated, the maximum punishment for which ranges from two to three years of imprisonment. This change allows one differently differentiate criminal liability.

Another change is associated with inclusion in Art. 15 of the Criminal Code of the Russian Federation of Part 6, which provides for: "Taking into account the actual circumstances of the crime and the degree of its public danger, the court has the right to have mitigating circumstances and in the absence of aggravating circumstances to change the category of crimes on a less serious, but not more than one category of crime, provided , what the commission of crime,

T a b l and c a
Changing the category of crime
In accordance with Part 6 of Art. 15 of the Criminal Code of the Russian Federation

specified in the third of this article, the convicted person was sentenced, not exceeding three years of imprisonment, or other softer punishment; For the commission of the crime referred to in the part of the fourth of this article, a sentence was sentenced, not exceeding five years of imprisonment, or other softer punishment; For the commission of the crime specified in "\u003e Parts of the fifth of this article, a convict was sentenced to a sentence not exceeding seven years in prison." Thus, the court was given the opportunity to "lower" the category of crimes to one step in order to apply less strict punishment.

General conditions for changing the category of crime on less heavy are: 1) the presence of mitigating the punishment of circumstances; 2) the lack of aggravating circumstances. In addition, the Court must take into account the actual circumstances of the crime and the degree of its public danger.

Special conditions are also introduced, in the presence of which it is possible to change the category of crime into a less heavy (table).

Analysis of Part 6 of Art. The 15 of the Criminal Code makes it possible to conclude that this Norma is intended to provide individualization of criminal liability, since the court is provided with the right to change the category of crimes. Thus, if earlier with the help of Art. 15 of the Criminal Code of the Russian Federation The legislator almost only differentiated criminal liability, now the status of these prescriptions has changed, they provide not only differentiation, but also directly provide the possibility of individualization of responsibility.

At the same time, if you can put it, the status of the category of crime, which is initially set by the legislator in CC. 2-5 tbsp. 15 of the Criminal Code of the Russian Federation, and the status of a crime category, which ultimately is determined by the court, according to the literal meaning of the law differ significantly.

The court has the right to change the category of crime only if he is sentenced. This means that the category of a crime defined by the court does not affect the qualifications of the crime. Changing the category of crimes from a grave for medium severity in case of completed, for example, preparations for the discrepancy provided by Part 1 of Art. 162 of the Criminal Code of the Russian Federation, and has been punished in the form of imprisonment for up to five years, cannot serve as a basis for eliminating criminal responsibility for the perpetrator by virtue of Part 2 of Art. 30 of the Criminal Code. Thus, we have, strictly speaking, a paradoxical situation. Despite the fact that the Court changes the category of crimes to the crime of moderate severity, nevertheless criminal responsibility for preparing for this crime comes.

Similarly, the question is also solved in relation to such a crime as the organization of the criminal community (criminal organization) or participation in it (it) (Art. 210 of the Criminal Code of the Russian Federation). Criminal liability for this crime occurs only if members of a structured organized group or unification of organized groups are combined in order to jointly commit one or more grave or especially serious crimes. If the court when prescribing punishment for this crime will change the category of crimes, in order to jointly commit a community, it will not be the basis for eliminating responsibility under Art. 210 of the Criminal Code.

It is worth paying attention to that since the Category of Crime Now the thing is largely individually defined, in the event of a crime in the complicity of accomplices, despite the identical qualifications of their actions, the crime can be recognized as not the same category. It all depends on whether perpetrators of the crime will be implemented in Part 6 of Art. 15 of the Criminal Code.

Changing the court category of crime does not affect the decision of the issue of exemption from criminal liability on the basis of Art. 75, 76, 78, 90 of the Criminal Code of the Russian Federation. It is impossible to be discharged from criminal liability in connection with the active repentance or in connection with reconciliation with the victims and at the same time appoint a punishment. The timing of the possibility of attracting a person to criminal liability is established at the time of bringing it to criminal liability, and therefore depend on the category of crime, which the legislator has determined, and not the judge. It is also problematic to apply the crime category defined by the rules of Part 6 of Art. 15 of the Criminal Code, in case of liberation from punishment due to a change in the situation (Art. 801 of the Criminal Code of the Russian Federation), liberation from punishment of minors (Article 92 of the Criminal Code of the Russian Federation) due to the fact that it is impossible to simultaneously be punished, and free from it.

At the same time, the change in the crime category by the court directly affects the solution of issues on the form of relapse (Article 18 of the Criminal Code of the Russian Federation), on the appointment of the type of correctional institution (Article 58 of the Criminal Code of the Russian Federation), on the appointment of punishment in the recurrence of crimes (Art. 68 of the Criminal Code of the Russian Federation ) and for the aggregate of crimes (Art. 69 of the Criminal Code of the Russian Federation), on the conditionally early release from serving the sentence (Art. 79 of the Criminal Code of the Russian Federation), to replace the unnecessary part of the punishment more soft view Punishment (Article 80 of the Criminal Code of the Russian Federation), on the postponement of serving the sentence (Art. 82 of the Criminal Code of the Russian Federation), on the release from serving a sentence in connection with the expiration of the statute of the judgment of the court sentence (Article 83 of the Criminal Code of the Russian Federation), on the maturity of the criminal record (Art. 86 of the Criminal Code of the Russian Federation).

It can be concluded that the category of a crime defined by the court affects the solution of issues that arise after the type and period (size) of punishment for a separate crime. All other issues suggest accounting for the category of crime on the rules provided for by CC. 2-5 tbsp. 15 of the Criminal Code.

Discussion is the question of the possibility of accounting for the category of crime, a specific court in the manner prescribed by Part 6 of Art. 15 of the Criminal Code of the Russian Federation, with the qualifications of the received under Art. 316 of the Criminal Code of the Russian Federation, which provides for the responsibility for the preypresentation of particularly serious crimes in advance. Suppose that the person who committed a crime for which the maximum punishment of over ten years of imprisonment has been condemned, he was sentenced to imprisonment for a period of less than seven years, and the court changed the category of crime into a grave crime. How in this situation to be with a person who covered this crime?

If we do not take into account the change in the category of covered crime, then the coverage of the crime forms the composition provided for by Art. 316 of the Criminal Code of the Russian Federation, and the person who has accomplished is subject to criminal responsibility. If we believe that in the end there was no particularly serious crime (the court changed the category for a serious), then the appropriate person is not subject to criminal responsibility.

Thus, the first problem that occurred in connection with the change of Art. The 15 Criminal Code concerns the borders of the application of the innovation provided for in Part 6 of this article of the Criminal Code of the Russian Federation.

Another problem is related to the use of the inverse force of the criminal law. Since all changes in Art. The 15 of the Criminal Code of the Russian Federation is aimed at improving the situation of the person who committed a crime, they generate the question of the application of Art. 10 of the Criminal Code of the Russian Federation on the inverse strength of the criminal law. If a new law In any way, it improves the position of the person who has committed a crime, then it has a reverse force (Part 1 of Art. 10 of the Criminal Code of the Russian Federation).

It has previously been noted that the change in the category of crime affects many issues of applying criminal law and, accordingly, indirectly on the measures that the court elects and which are provided for by the legislator as the legal consequences of the crime (the purpose of punishment, the exemption from death, the calculation of the statute of limitations conviction court sentence, finalization of criminal record, etc.). In this regard, there is a need to consider the possibility of changing the category of crime and the application of the inverse force of the criminal law, and this may be done at any stage of the criminal process. The Constitutional Court of the Russian Federation in paragraph 4.1 of the decision "in the case of the verification of the constitutionality of part of the second article 10 of the Criminal Code of the Russian Federation, part of the second article 3 of the Federal Law" On the introduction of the Criminal Code of the Russian Federation ", the Federal Law" on amending and additions to Criminal Code of the Russian Federation "and a number of provisions of the Criminal Procedure Code of the Russian Federation relating to the procedure for bringing court decisions in accordance with the new criminal law, eliminating or mitigating responsibility for a crime, in connection with the complaints of citizens A. K. Aizhanova, Yu. N. Alexandrova and others "of April 20, 2006 No. 4-P indicated that, according to the current criminal procedure legislation, the application of a new criminal law, eliminating or mitigating responsibility for a crime and, therefore, having a reverse force may be carried out at any stages of criminal proceedings, starting With the excitement of crimson The case and ending with the revision of the court decisions and the execution of the sentence.

In the same ruling in p. 4.3, it is envisaged that the rule of art is imperative in its nature. 54 (Part 2) of the Constitution of the Russian Federation, prescribing to apply a new law in cases when, after committing an offense, the responsibility for it is eliminated or mitigated, does not imply the existence of a court or other body applying the law, discretionary authority that would allow him in such cases Ignore the action of this law. Consequently, the state is obliged by virtue of Art. 2 Constitutions of the Russian Federation recognize, comply with and protect the rights and freedoms of a person and a citizen, should ensure in practice the action of the mechanism of bringing to the previously adopted court decisions regardless of the presence of a request from stakeholders. This means that issues related to the change in the category of crime and arising from this the need to revise the legal consequences of a perfect crime should be considered regardless of the presence of a certificate of trial.

Thus, the courts must "raise" criminal cases and in a streamline to start considering specified questions Based on paragraph 13 of Art. 397 Code of Criminal Procedure. The volume of this work implies a serious increase in the burden on the courts. However, it seems that there is no other way out.

Documents of the court

Generalization of the use of the use of Ch.6 Art.15 of the Criminal Code of the Russian Federation

Generalization

practices of applications by the courts of the Volgograd region

provisions of Ch.6 6 Art.15 of the Criminal Code of the Russian Federation

In accordance with the work plan of the Volgograd Regional Court, for the second half of 2018, the practice of applying regional (urban) courts and world judges of the Volgograd region of the Regulations of the Russian Federation for the period from January 1, 2018 to September 1, 2018 was analyzed and summarized. .

The issues of legislative regulation of the provisions of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation and the analysis of the practice of applying the specified norms of the Criminal Law for 2017 were covered by the Volgograd Regional Court in generalization, approved by the Decree of the Presidium of the Volgograd Regional Court on March 14, 2018. In addition, the mistakes allowed by the judges are analyzed in detail in detail law enforcement, Positive examples are given and appropriate recommendations are given.

The above generalization of the practice is sent to the courts for use by judges in its practical activity.

On May 15, 2018, the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 "On the practice of applying the provisions of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation", which clarified issues arising from courts when applying the provisions of the Code of the Russian Federation in order to ensure The correct and uniform applications by the courts of the norms of criminal and criminal procedural laws regulating the grounds and the procedure for changing the category of crime into less seriously.

The purpose of this generalization of the practice is to analyze the solutions of the courts of the Volgograd region, taking into account the above recommendations and clarification of the Supreme Court of the Russian Federation and the Volgograd Regional Court.

For the period from January 1, 2018 to September 1, 2018, the district (urban) courts of the Volgograd region adopted 6 decisions about changing the category of crimes on less serious about 6 persons.

The global judges of the court plots of the Volgograd region, as well as the appeal instance of the Volgograd Regional Court of Decisions on the application of the provisions of the Russian Federation of the Russian Federation, were not accepted in relation to convicted persons.

As previously noted, the change in the category of crime on a less serious (part 6 of Art. 15 of the Criminal Code of the Russian Federation) allows for the individualization of the responsibility of the convict for the deed and implement the principles of justice and humanism.

Changing the category of crime on less heavy improves legal status condemned because it affects, in particular, for the appointment of a convicted to imprisonment: the type of correctional institution, punishment for the aggregate of crimes, conditional condemnation; cancellation or preservation of conditional condemnation; the possibility of liberation from punishment due to active repentance, reconciliation with the victim, the expiration of the limitations of the criminal prosecution or execution of the indictment, a change in the situation, or as a result of an amnesty act, the application to minor forced measures of educational impact; The calculation of the sentence of the sentence in the execution of the sentence and maturity of the criminal record and other issues related to the criminal prosecution.

In the presence of one or more softening the circumstances and in the absence of aggravating circumstances, the court, appointing a crime of medium severity, a serious or especially grave crime, the punishment within the limits specified in Part 6 of Article 15 of the Criminal Code decides whether to change the category of crime For less serious, but not more than one category of crime, taking into account the actual circumstances of the crime and the degree of its public danger.

Provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation courts were applied when the category of crimes was changed:

middle severity on crimes of small severity - in relation to two persons (non-Tea and Dubovsky district courts of the Volgograd region);

a serious crime on the crime of moderate gravity - in relation to three persons (Pallasovsky District Court of Volgograd region and the Central District Court of Volgograd);

a particularly serious crime on a grave crime - in relation to one person (Zhirnovsky district court of the Volgograd region).

In relation to one minor, the category of crime was changed from a particularly serious crime into a grave crime.

Considering the issue of the possibility of applying to a convicted person of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation, the court must take into account: a way to commit a crime, the role of a person in a crime committed in complicity, the focus of intent, the motive and purpose of the crime, character, size or The severity of the consequences, other circumstances affecting the degree of public danger of the act.

The question of the change in the category of crime on a less serious is solved by the court of first instance when making an indictment in a criminal case, discussed both in general and in a special procedure of a trial.

Of the submitted court decisions, one was taken according to the results of the consideration of the case in the general procedure for trial, five - when considering criminal cases in the manner prescribed by Chapter 40 of the Code of Criminal Procedure of the Russian Federation.

In accordance with the explanations given in paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the decision to apply in relation to I., convicted for the commission of two crimes provided for by paragraph "B" of Part 2 of Article 158 of the Criminal Code of the Russian Federation, the provisions of .6 of Article 15 of the Criminal Code of the Russian Federation was adopted by the Dubovsky District Court of the Volgograd region for each of the borne in the totality of crimes separately.

The application of any provision of the criminal law should be motivated (part 4 of Article 7 of the Code of Criminal Procedure of the Russian Federation), including the presence or lack of grounds for changing the category of crime (crimes) by virtue of Part 6 of Art. 15 of the Criminal Code.

Based on the requirements of the Criminal Procedure Law, the courts of the region, deciding on the application of the provisions of the Criminal Code of the Criminal Code of the Russian Federation, correctly reflect its conclusions about the need to change the category of crime on less serious in the descriptive-motivative part of the sentence.

The adoption of such a decision at the appointment stage of the court session in the preliminary hearing is not based on the law.

Motivating the application to the guilty position of the provisions of Ch. 6 Article 15 of the Criminal Code of the Russian Federation, the judges should not be limited to general judgments about the accounting of the actual circumstances of the crime and the degree of its public danger.

In a criminal case against B., convicted by the Central District Court of Volgograd, according to paragraphs, part 2 of Article 161 of the Criminal Code of the Russian Federation by 2 years in prison with a trial period of 2 years, the judge, motivating the application of the provisions of Ch.6 .15 of the Criminal Code of the Russian Federation, took into account the actual circumstances of the case and the degree of public danger of the deed, indicating that initially intent was aimed at the secret embezzlement of property, which then was abducted openly, and the damage was reimbursed; And also took into account the combination of the cause of the circumstances softening (including data on the multiple diseases B.), the lack of aggravating punishment.

When prescribing punishment I. For two crimes, provided for by paragraph "B" Part 2 of Article 158 of the Criminal Code of the Russian Federation, the Dubovsky District Court of the Volgograd Region, given the actual circumstances of the execution of I. Crimes, indicated the following: "It is abducted from stolen on shut-off baths and summer kitchen kitchenware and inventory of a small cost that are not for victims of essentials; These crimes were committed by I. For the first time. "

The court also indicated that he takes into account the presence of a set of softening the punishment of circumstances, the lack of circumstances aggravating the punishment, its mediocre characteristics at the place of residence, a complete refund of it caused by the crime of property damage to the victim K. and its desire to compensate the damage to the victim A. Change of the Crime Cancellation The court also motivated the objectives of ensuring the individualization of responsibility I. for the dedicated and implementing the principles of justice and humanism enshrined in Article 6, 7 of the Criminal Code of the Russian Federation.

For a minor M., convicted according to paragraph "B", part 4 of Article 131 of the Criminal Code of the Russian Federation, applying the provisions of Ch.6 Art.15 of the Criminal Code of the Russian Federation, the Zhirnovsky District Court of the Volgograd region pointed out that he takes a set of mitigating the damage to the defendant a minor age, the commission of the crime for the first time, repentance, recognition of guilt, the actual circumstances of the crime, a minor difference of age with the victim, less than four years, the unfinished formation of psychosexuality, the behavior of the victim - the leader, the desire for self-affirmation, demonstration in behavior, the desire to be the center of attention, the need for change and vivid impressions; The nature and size of the consequences, the lack of aggravating the circumstances. The listed circumstances, according to the court of first instance, significantly reduce the public danger of the crime.

According to paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 15, 2018 No. 10 "On the practice of applying the provisions of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation", in the event of a decision on the court on the application of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation, a description-motivative Part of the indictment along with other issues of paragraph 5 of Article 307 of the Code of Criminal Procedure of the Russian Federation should include: an indication of the specific actual circumstances of a crime that reduce the degree of its public danger and giving grounds for changing the category of crime.

At the same time, the motivation of the application of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation in each second judicial decision Does not meet the requirements and recommendations of the Supreme Court of the Russian Federation, since it is a formal nature, not disclosing the motives of the court's decision on changing the category of crime.

So, "when the punishment of M. according to paragraph" B "Part 2 of Article 158 of the Criminal Code of the Russian Federation, the court took into account the circumstances of the crime and the degree of its public danger, the presence of mitigating circumstances in the form of a voluntary compensation for material damage, the lack of circumstances aggravating the punishment, in There is no connection with which it was possible in accordance with Part 6 of Article 15 of the Criminal Code of the Russian Federation to change the category of a perfect crime on a less serious, with moderate severity for a crime of small severity. "

Thus, the motivated judgment of the court (Nehayevsky District Court of the Volgograd Region) on the application of the provision of the Criminal Code of the Russian Federation in the sentence, and the conclusion of the possibility of applying this criminal law was made at the appointment of M. Punishment.

In relation to K. and S., convicted by sentences of the Pallasian district court of the Volgograd region under Part 3 of Article 30, paragraph. "A" of Part 3 of Article 158 of the Criminal Code of the Russian Federation, the court indicated that it takes into account the actual circumstances of crime and degree their public danger; The fact that crimes are unfinished, takes into account mitigating circumstances and the lack of aggravating circumstances, and that the court appointed a sentence that does not exceed the term established by Ch. 6 of Article 15 of the Criminal Code of the Russian Federation.

In the above decisions of the Pallasian District Court of the Volgograd region, there are also argued judgments on the application of the provisions of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation, on the need for the attention of the courts of the region in summarizing the practice of March 14, 2018.

The motivation of the application of the provisions of the Volgograd region given in the sentence of the Zhirnovsky District Court of the Volgograd region in relation to the minor M., according to the judicial board, does not reason that the circumstances listed by the court reduces the degree of public hazard of the committed M. Especially grave crime.

So, making the conclusion about the possibility of changing M. Category of crimes on a less serious, the court indicated that it takes into account: "The behavior of the victim - the leader, the desire for self-affirmation, demonstration in behavior, the desire to be the center of attention, the need for change and vivid impressions."

This quotation given by the court in the verdict is contained in the conclusion of the Commission of experts on the juvenile C. regarding its individual psychological features.

In describing the criminal act, provided for by paragraph "B" of Part 4 of Article 131 of the Criminal Code of the Russian Federation, committed by M. in relation to the juvenile C., there are no judgments of the preliminary investigation authority and the court regarding the impact of the behavior of the victim and the peculiarities of its psychological development for M. Especially grave crime.

The individual-psychological peculiarities of the person who suffered as a mitigating punishment of M. The court did not recognize the circumstances as a mitigating punishment.

The conclusions of the court on how the individually and psychological peculiarities of the personality of the juvenile victim influenced the decline in the degree of public danger of the committed M. crime, there are no in the sentence.

Dubovsky District Court of the Volgograd Region, pointing out that I. was abducted from "Bathrooms unlocked on shut-off devices and summer cuisine, kitchenware and inventory of a small value that are not for victims of the essentials", which, according to the court, reduces the degree of public danger of the perfect Crimes, also did not comply with their judgments regarding the influence of the circumstances of the circumstances to reduce the degree of public danger of the perfect I. two crimes of moderate severity.

The operative part of the indictment, in the case of part 6 of article 15 of the Criminal Code of the Russian Federation, should contain: a decision on the recognition of a person responsible for committing a crime; The view and size of the punishment appointed for each crime in which he was found guilty; The decision to change the category of crime (crimes) is less serious, indicating the changed category of crime.

The resolutes of the studied sentences of the courts of the Volgograd region contain decisions about changing the category of crimes on less severe on the grounds provided for in Ch.6 6 of Article 15 of the Criminal Code of the Russian Federation, at the same time, by the sentence of the Central District Court of Volgograd in relation to B., condemned by P. "G" Part 2 of Article 161 of the Criminal Code of the Russian Federation, the decision to change the category of crimes from a serious crime on the crime of moderately by the court is not accepted.

Positioning in the descriptive-motivation part of the sentence in relation to B. Its judgment regarding the need to change the category of crime on a less serious, in the operative part of the sentence, the court limited himself to an indication of the use of Part 6 of Article 15 of the Criminal Code at the appointment of B. Penalties under para. "G" Part 2 of Article 161 of the Criminal Code.

Thus, based on the sentence, actually the category of committed B. crime into less seriously changed, which prevents B. B. to take advantage of the legal consequences that improve its position.

According to the explanations of the Plenum of the Supreme Court of the Russian Federation of May 15, 2018 No. 10, the decision of the court on changing the category of crimes from a serious perimensional crime allows the court in the presence of the grounds provided for by ,, 80 1 ,,, of the Criminal Code, to free the convicted on the disposal punishment.

In criminal cases in relation to K. and S., convicted of the Pallasian district court of the Volgograd region under Part 3 of Article 30, paragraph. "A" Part 3 of Article 158 of the Criminal Code of the Russian Federation, the court, changing K. and C. category of them committed by them Crimes with serious crimes of medium severity, having established the circumstances provided for by Article 76 of the Criminal Code of the Russian Federation (reconciliation with the victims), came to the conclusion of the possibility of liberation K. and S. from the penalties appointed by him. 2 Part 2 of Article.302 Code of Criminal Procedure.

Thus, the Pallasian District Court of the Volgograd region resolved sentences, resolving parts of which contain, except for the decision on the recognition of the defendants by the perpetrators of crimes, on the appointment of punishment, to change the category of crime on a less serious, indicating the changed category of crime, decisions about the release of K. and C. From serving the prescribed punishment (paragraph 2 of Part 5 of Article 302 of the Code of Criminal Procedure).

Contrary to the requirements of Ch.6 6 of Article 15 of the Criminal Code of the Russian Federation, with an appeal verification of the decision of the court of first instance, the court of appeal, deciding on the change in the court sentence, the appointment of a new penalty, does not always discuss the issue of applied to the condemnation of the criminal law.

So, W., previously not convicted, was convicted of a sentence of the Uryupin City Court of the Volgograd region for the aggregate of crimes provided for by paragraph "in" Part 2 of Article 161, paragraph. "In" Part 2 of Article 158 of the Criminal Code, 2 years of imprisonment with the serving of punishment in a correctional colony of the general regime. The aggravating circumstances in the case were absent, the court established the presence of a number of mitigating the punishment of W. Circumstances, the limits of the size of the sentence established in Ch. 6 of Article 15 of the Criminal Code, the court when imposing punishment.

For appeal consideration Cases (No. 22-2419 / 18) The court established that W. After the sentence, before the court joined the court's sentence, the damage was made in a voluntary basis caused by both victims that the appellate court in accordance with paragraph "K" h. 1 Article.61 of the Criminal Code of the Russian Federation was recognized as softening the punishment of W. The circumstance in both crimes. The size of the appointed W. Punishment for each of the crimes was reduced, however, taking this decision, the court of appeal did not discharge the possibility of changing the Category of crimes for less serious, did not express its opinion on the decision of the court of first instance on this issue.

According to the sentence of the Central District Court of Volgograd O., not previously convicted, convicted under Part 1 of Article 111 of the Criminal Code of the Russian Federation to imprisonment with the use of Article 73 of the Criminal Code of the Russian Federation. The court of first instance established the presence of a number of mitigating the punishment of O. The circumstances and aggravating the circumstance provided for by Part 1 of Article.63 of the Criminal Code of the Russian Federation. The punishment of the guilty is appointed within the limits established by Ch. 6 Article 15 of the Criminal Code.

With appeal consideration of the case (№22-3308 / 18), the court excluded an indication of an instrument to aggravating the circumstance - Part 1 of Article.63 of the Criminal Code of the Russian Federation and, taking into account the presence of mitigating the punishment of O. the circumstances provided for by paragraphs. "And" and "K" Part 1 of Article 61 of the Criminal Code of the Russian Federation applied in relation to convicted Part 1 of Article 62 of the Criminal Code of the Russian Federation, reducing the amount of the sentence prescribed by him under Part 1 of Article 111 of the Criminal Code of the Russian Federation. At the same time, setting the above circumstances, the appellate court did not discuss the possibility of applying the provisions to O. provisions of the Code of the Russian Federation and the change, in connection with this, the crime categories are less serious; I did not express my opinion regarding the decision of the court of first instance on this issue.

The provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation when resolving the courts of the region related to the execution of the sentence, if due to the publication of a criminal law, which has the inverse force, the punishment of the Code of Criminal Code of Article 397 is mitigated to the limits stipulated by Part 6 of Article 15 of the Criminal Code of the Russian Federation have not been accepted.

Information about the consideration by the courts of the Volgograd region of criminal cases against persons with a criminal record that previously changed the category of crimes in previous sentences is absent.

At the same time, according to the recommendations of the Plenum of the Supreme Court of the Russian Federation of May 15, 2018 No. 10, in the introductory part of the sentence, along with other data, which can be taken into account by the court when appointing the defendant and the size of punishment, the type of correctional institution, recognizing the recurrence of crimes, permission to be resolved Other issues that are important for business must reflect information about the change in the category of crime on a less heavy for the previous sentence.

The application of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation does not affect the legal assessment of Acts, does not entail the legal consequences for those in respect of whom the decision to change the category of crime is not taken.

According to the results of the analysis of the judicial practice of cases of the unjustified application of the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation or the unreasonable change in the category of more than one category, the unmotivated refusal to change the category of crime into less severe was not detected.

Conclusion.

According to the results of the study of judicial practice, the judicial board in criminal cases considers it necessary to recommend the judges of the district (urban) courts and the global judges of the court sections of the Volgograd region to prevent a formal approach and unmotivated refusal to apply Ch. 6 Article 15 of the Criminal Code of the Russian Federation; When applying the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation, lead appropriate motives to substantiate the conclusions about the availability of grounds for changing the category of crimes by force of Ch.6 Article 15 of the Criminal Code, indicating concrete circumstances; When deciding on the application of Ch.6 Article 15 of the Criminal Code of the Russian Federation to reflect it in the operative part of the sentence after appointing a sentence indicating the relevant category of crime.

The judicial board reminds that the change in the category of crime will involve significant favorable legal consequences for the convict, and therefore the courts need to actively apply the humanitarian capabilities of the current criminal law, and when applied, to carefully assess the actual circumstances of the crime committed and the degree of its public danger in order to exclude unreasonable use. of this criminal law or mitigating criminal liability measures against persons who have committed a crime.

Gorbatova M.A., Associate Professor of the Law Faculty of South Ural State University, Candidate of Law, Associate Professor.

Russman G.S., Associate Professor of the Law Faculty of South Ural State University, Candidate of Law, Associate Professor.

Despite criticism from the legal community, the Federal Law of December 7, 2011 N 420-FZ in Art. The 15 Criminal Code of the Russian Federation still amended the court to change the court to the category of crimes. In accordance with Part 6 of this article, the court taking into account the actual circumstances of the crime and the degree of its public danger in the presence of mitigating and absence of aggravating circumstances have the right to change the category of crimes on a less serious, but not more than one, provided that the perpetrator of the Citizen The severity of the convicted person was sentenced, not exceeding three years of imprisonment, or other softer punishment; For the commission of a serious crime, a sentence was appointed, not exceeding five years of imprisonment, or other softer punishment; For the commission of a particularly serious crime, a sentence was appointed, not exceeding seven years in prison.

The validity and feasibility of such a cardinal for the Russian criminal law of the legislative decision was discussed repeatedly, but in the current situation of the scientific community, it remains only to adopt the law as it is, and try to develop recommendations for the uniform and most effective application of the new edition of Art. 15 of the Criminal Code in practice.

One of the most pressing issues arising before the law enforcement immediately after the entry into force of the named law was the question of the limits of the criminal law over time. In accordance with Art. The 10 Criminal Code of the Russian Federation is inverse to the law, which eliminates the crime of acts, mitigates the punishment or otherwise improves the position of the person who committed the crime. To determine what of these criteria is the innovation, it is possible, after analyzing Part 6 of Art. 15 In relationship with other provisions of the Criminal Code of the Russian Federation.

The crime of act will be eliminated if the court will change the category for the crime of moderately by the face of preparation for a gravitate crime. Similarly, it would be possible to resolve the question and with a particularly serious crime in advance, if the Court considers it possible to change the category of covered crime into less serious. However, we believe that the crime of the act committed by one person cannot depend on the change in the category of crime committed by another subject, since in accordance with Part 6 of Art. 15 of the Criminal Code, deciding on the change in the category, the Court must take into account the actual circumstances and the degree of public danger of a crime, the presence of mitigating and the lack of aggravating the punishment of circumstances relating to the subject of this crime.

Changing the category of crime can lead to mitigating punishment. If the person who has committed a serious crime has been appointed an additional punishment in the form of deprivation of special, military or honorary title, a classroom, or state awards, and the court considers it possible to change the category of crimes to a less serious, the punishment of the criminal is softened by excluding additional punishment.

The change in the category of crime affects the size of the final punishment appointed by the totality of crimes, since the absorption of less strict punishment is more stringent, if all the completed crimes that form a combination belong to the category of small or moderate severity.

It seems that in other cases, the change in the category of crime on less serious does not concern the crime and the punishability of Acts, and indirectly, in one way, improves the position of the person who has committed a crime before making relevant changes in the Criminal Code of the Russian Federation.

Changing the category of crime affects the solution of the following issues: determining the type of relapse (Article 18), determining the type of correctional institution (Article 58), the abolition or preservation of conditional condemnation (part 4 of article 74), exemption from criminal liability in connection with the active repentance and reconciliation with the victim (Art. 75, Art. 76), the calculation of the limitation period of the crime (Article 78) and the execution of the conviction sentence (Art. 83), the calculation of the period for the application of conditionally and early liberation (Article 79, Art. 93) and replacing the unnecessary part of the punishment of a softer type (art. 80), exemption from punishment due to a change in the situation (Article 80.1), calculation of the maturity of the criminal record (Article 86, Art. 95), exemption from criminal liability and punishment minors (Article 90, Art. 92).

Thus, the change in the category of crime entails significant criminal legal consequences (Positive) for the person who committed a crime. Therefore, for the reasonable application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation, it is necessary to clearly understand the grounds and conditions for changing the crime category by the court to less hard.

As the grounds necessary for the adoption of such a decision, the law calls accounting by the court of the actual circumstances of the crime and the degree of public danger, the presence of mitigating and the lack of aggravating the circumstances. However, which factual circumstances should be taken into account by the court, from the content of the 6th century. 15 of the Criminal Code is incomprehensible. According to Yu.E. Poudochkin, the concept of "actual circumstances of the crime" has no regulatory, nor one-to-one doctrinal interpretation<1>.

<1> Pudochkin Yu.E. On the coming changes in the criminal law // http://sartraccc.ru/i.php?oper\u003dread_file&filename\u003dpub/pudovochkin(09-11-11).htm.

The position of the legislator is unclear and about accounting for the degree of public danger of the crime: in part of the first article under consideration, it uses this criterion along with the nature of public danger, to categorize crimes, and in part 6 proposes to use it to change already installed in part 1 of the crime categories .

Most likely, due to the uncertainty of the court, justifying the decision on the possibility of (inexpensive) changes in the category of crime, most often use only legislative formulation, without disclosing it: "Taking into account the actual circumstances of the crime and the degree of its public danger, the court does not find grounds for the application of provisions Part 6 of Art. 15 of the Criminal Code of the Russian Federation, that is, to change the category of crime on less serious "<2>. In some cases, the decision on the impossibility of changing the category of courts was also the "focus of the crime against the health of the population and public morality," the commission of a crime associated with an encroachment on the normal activity of the authority, and therefore representing an increased public danger "," non-payment of damage to the victim " , "Performing eight mercenary crimes", etc.

<2> http://centr.chel.sudrf.ru.

The court regarding the existence of mitigating and lack of aggravating circumstances in principle does not cause problems, the judges agree that the same softening circumstances can be taken into account both when prescribing punishment and when changing the category of crime.

With regard to the conditions for changing the category of crime, the legislator differentiates them depending on the category, which corresponds to the perfect crime on the basis of part. 3, 4, 5 of Art. 15 of the Criminal Code of the Russian Federation, and from the sentence appointed by convicted person: not over three years of imprisonment or other softer punishment - for committing a crime of moderate severity; Not over five years of imprisonment or other softer punishment - for committing a grave crime; Not over seven years in prison - for the commission of a particularly serious crime. And, as it seems, the application of this provision causes significant problems, and not only a criminal law, but also a criminal procedural nature.

So, in part 6 of Art. 15 of the Criminal Code of the Russian Federation, the legislator uses such concepts as "convicted" and "prescribed punishment", which, given Part 2 of Art. 47 Code of Criminal Procedure, naturally leads to the conclusion that this criminal law norm can be applied only to persons in respect of whom conviction has already been issued. However, according to paragraph 6.1 part 1 of Art. 299 of the Code of Criminal Procedure, when a sentence decree, the court in the deliberative room should resolve the question of whether there are grounds for changing the category of crime crime, which is accused of a defendant, less serious in accordance with Part 6 of Art. 15 of the Criminal Code. Consequently, the aforementioned norms of the Criminal Code of the Russian Federation and the Code of Criminal Procedure are confirmed, which puts one more question before the law enforcement: is it possible to change the category of crime on less serious if the sentence has already entered into legal force? If follow from. 1 tbsp. 10 of the Criminal Code of the Russian Federation, then a person with respect to which an accusatory sentence has the right to apply for a change in the category of crime on less serious when there are appropriate grounds and conditions, but what is the court, in which instance is entitled to solve this issue?

It seems that this issue should be considered in cassation or in case of sentence entry into force in the order of supervision. At the same time, the basis for appeal in the event of an immutability of the Code of Crimes to a less serious, only the injustice of the sentence may be (paragraph 4 of Part 1 of Art. 379 of the Code of Criminal Procedure).

Analysis of the current practice of the implementation of Part 6 of Art. 15 of the Criminal Code of the Russian Federation and paragraph 6.1 part 1 of Art. 299 Code of Criminal Procedure reveals that when sentencing, judges arises the question of which part of the indictment should consider the issue of changing the category of crime. In accordance with paragraph 5 of Art. 307 Code of Criminal Procedure The descriptive-motivative part of the indictment should contain "the rationale for the decisions made on other issues specified in Article 299 of this Code." Consequently, this issue must be resolved in the descriptive-motivative part, but the need to indicate this to the operative part of the indictment in Art. 308 Code of Criminal Procedure said nothing. We believe that in the event of a decision by the court, a decision to reduce the category of crime, this must be specified in the operative part of the indictment, since significant criminal law consequences entails.

For the present period, in the process of applying the rules on the inverse strength of the criminal law and the possibility of changing the category of crime on a less serious law enforcement itself, he speaks independently to resolve the issues designated above.

Thus, leaving the provisions caused by the requirement of criminal law to address the issue of a change in the category after the appointment of punishment, the judge of the Ardatovsky District Court of the Nizhny Novgorod region in the descriptive-motivative part of the sentence of the crime provided for by paragraph "a" h. 3 of Art. 158 of the Criminal Code, indicated: "By virtue of Art. 10 h. 1 of the Criminal Code of the Russian Federation ... the federal law N 420-FZ improves the position of the defendant, has inverse and shall be applied under the circumstances referred to in Part 6 of Art. 15 of the Criminal Code. The grounds for changing the category of crime ... are available. L. for the first time committed a grave crime, the amount of abducted significant is not, the degree of public danger of the crime is small, there is a combination of softening circumstances, there are no aggravating circumstances, he should be given a sentence to be appointed not over 5 years of imprisonment, so the court considers it possible to change the crime category, which Made L., with a grave for an intentional crime of moderate gravity "<3>.

<3> http://ardatovsky.nnov.sudrf.ru.

According to the criminal case, the trial was carried out in a special order (ch. 40 of the Code of Criminal Procedure), therefore the conclusion of the court that the punishment should be appointed for a period not higher than five years of imprisonment, is quite natural, since in part 3 of Art. 158 of the Criminal Code of the Russian Federation provides for the maximum punishment - six years of imprisonment, and the use of Part 5 of Art. 62 of the Criminal Code reduces it to 2/3, i.e. up to four years in prison.

In the same cases, when the court can not clearly determine the maximum limit of punishment for committing a specific crime, it seems that the change in its category will cause difficulties.

We believe that the condition for the purpose of punishment not exceeding the limit set in part 6 of Art. The 15 Criminal Code for each category of crime may be fulfilled in the case of a sentence of a sense of a softer than deprivation of freedom, as well as in cases of compulsory sentences: for an unfinished crime (Article 66), in the presence of mitigating circumstances specified in Art. 62, when prescribing a softer punishment, than provided for for this crime (Article 64), with the verdict of jury assessors of the condesception (Article 65).

I would like to hope that the court provided to the court of a change in the crime category will contribute to the achievement of the purpose of individualization of punishment and a fair sentence. However, for a successful and uniform application, appropriate norms should not only eliminate contradictions between criminal and criminal procedure legislation, but also to develop recommendations for the implementation of these provisions in practice. This will undoubtedly help and solve the urgent question about the use of the inverse force of the criminal law.

Decision
Plenum of the Supreme Court of the Russian Federation
On the practice of applications by the courts of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation
may 15, 2018 No. 10

In connection with issues arising from courts when applying the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation, and in order to ensure the correct and uniform applications by the courts of criminal and criminal procedural laws, regulating the foundations and procedure for changing the category of crime on a less serious, plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 No. 3-FKZ "On Supreme Court Russian Federation", decides to give the following explanations:
1. To draw the attention of the courts to the fact that the change in the category of crime on less serious in accordance with Part 6 of Article 15 of the Criminal Code of the Russian Federation makes it possible to ensure the individualization of the responsibility of the convict for the deed and is the implementation of the principles of justice and humanism enshrined in Articles 6 and 7.
The change in the category of crime on a less serious improves the legal status of the convicted person, since it affects, in particular, to the appointment of a correctional institution convicted to imprisonment (Article 58 of the Criminal Code of the Russian Federation); the appointment of punishment for the aggregate of crimes (Article 69 of the Criminal Code of the Russian Federation); imposition of conditional condemnation (paragraph "b" of part 1 of article 73 of the Criminal Code of the Russian Federation); cancellation or preservation of conditional condemnation (part 4, 5 of article 74 of the Criminal Code of the Russian Federation); The possibility of liberation from serving a sentence in connection with the active repentance (Article 75 of the Criminal Code of the Russian Federation), reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation), the expiration of the statute of criminal prosecution or execution of the court sentence (Articles 78, 83, 94 of the Criminal Code of the Russian Federation), a change in the situation (Article 80.1 of the Criminal Code of the Russian Federation) or as a result of an amnesty act (Article 84 of the Criminal Code of the Russian Federation), applying for minor forced measures of educational impact (Article 92 of the Criminal Code of the Russian Federation); Calculation of the term of punishment, after the actual departure of which it is possible to use conditionally and early liberation from the serving of the sentence (Articles 79, 93 of the Criminal Code of the Russian Federation) or replacing the unnecessary part of the punishment of a softer point of punishment (Article 80
Of the Criminal Code); The calculation of the maturity of the criminal record (Articles 86, 95 of the Criminal Code of the Russian Federation).
Taking into account the legal consequences of a change in the category of crime on a less serious court, when considering a criminal case, it is necessary to check whether there are grounds for the application of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation for each defendant.
2. In the presence of one or more softening circumstances and, in the absence of aggravating circumstances, the court, appointing a crime of medium severity, a grave or particularly serious crime, the punishment specified in paragraph 6 of Article 15 of the Criminal Code of the Russian Federation solves in accordance with paragraph 6.1 of the article 1 of the article 299 Code of Criminal Procedure The question of the possibility of changing the category of crime on a less serious, but not more than one category of crime, taking into account the actual circumstances of the crime and the degree of its public danger.
Allowing this issue, the Court takes into account the method of committing a crime, the degree of realization of criminal intentions, the role of the defendant in a crime committed in complicity, the type of intent or the type of negligence, the motive, the purpose of making the act, the nature and size of the consequences, as well as other actual circumstances of the crime affecting the degree of its public danger.
The conclusion about the presence of grounds for the application of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation can be made by the court if the actual circumstances of the crime of the crime indicate a lesser extent of its public danger.
3. When taking into account the circumstances, mitigating punishment, to address the issue of the possibility of using part 6 of article 15 of the Criminal Code of the Russian Federation, the court should proceed from the provisions of parts 1 and 2 of Article 61 of the Criminal Code of the Russian Federation.
In cases where, in accordance with Part 2 of Article 61 of the Criminal Code of the Russian Federation, the court as mitigating the circumstances not provided for by part 1 of Article 61 of the Criminal Code of the Russian Federation are also taken into account when changing the category of crime into less serious.
4. The presence of one or more aggravating the circumstances referred to in parts 1 and 1.1 of Article 63 of the Criminal Code of the Russian Federation, eliminates the possibility of changing the category of crime into less serious.
If the aggravating circumstance is provided for by the appropriate article of the special part of the Criminal Code of the Russian Federation as a sign of the criminal code, including a qualified composition of the crime, then this circumstance in terms of part 2 of Article 63 of the Criminal Code does not interfere with the application of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation.
For example, ground violation Public Order, expressing explicit disrespect for society committed with the use of weapons or items used as a weapon (paragraph "A" of part 1 of article 213 of the Criminal Code of the Russian Federation), or committing theft as part of a group of persons under the preliminary conspiracy (paragraph "A" of part 2 Articles 158 of the Criminal Code of the Russian Federation) in itself is not an obstacle to the court's consideration of the issue of changing the category of such a crime on a less serious.
5. The question of a change in the category of crime on a less serious is solved: the court of first instance when making an indictment in a criminal case, discussed both in general and in a special procedure of a trial (chapter 40, 40.1 of the Criminal Procedure Code of the Russian Federation); the court of appeal - when issuing an appeal sentence or determination, a resolution on the change in the sentence of the court of first instance; The court of cassation or supervisory instance when changing the sentence of the lower court.
The provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation may be applied by a court committing issues related to the execution of a sentence, if due to the publication of a criminal law, which has a ratio of the convicted person in accordance with paragraph 13 of Article 397 of the Code of Criminal Procedure, is mitigated to the limits stipulated by Part 6 of Article 15 Criminal Code.
In this case, the decision to change the category of crime on a less serious is taken by the court on the basis of the actual circumstances of the crime set out in the sentence.
6. If the defendant is accused of committing several crimes, the court when resolved the sentence permits the possibility of applying the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation for each of the incoming crimes separately, and if in the commission of a crime (crimes), several defendants are accused of committing a crime. For each defendant separately (part 2 and 3 of Article 299 of the Code of Criminal Procedure).
7. In the case of a court adoption of a decision on the application of the provisions of part 6 of article 15 of the Criminal Code of the Russian Federation, the descriptive-motivative part of the indictment, along with other issues, paragraph 5 of Article 307 of the Code of Criminal Procedure of the Russian Federation should contain: an indication for the presence of mitigating and lack of aggravating circumstances; the motives for solving all issues related to the appointment of criminal punishment; An indication of the specific actual circumstances of the crime, which reduce the degree of its public danger and giving reason to change the category of crime; conclusion about the need to change the category of crime on less serious; In the presence of appropriate grounds - the motives for solving issues relating to exemption under judgmental punishment.
The operative part of the indictment in the case of the application of part 6 of Article 15 of the Criminal Code of the Russian Federation should, in particular, contain: the decision to recognize the person responsible for committing a crime; The view and size of the punishment appointed for each crime in which he was found guilty; The decision to change the category of crime (crimes) is less serious indicating the modified category of crime.
8. The courts should be borne in mind that the change in the category of crime is possible only after the convicted person has been sentenced to consider the rule of sentences provided for by the Criminal Code of the Russian Federation, provided that the type and term of the prescribed punishment meet the requirements of Part 6 of Article 15 of the Criminal Code of the Russian Federation.
Application by the court of article 64 of the Criminal Code of the Russian Federation in itself does not interfere with the change in the category of crimes in accordance with Part 6 of Article 15 of the Criminal Code of the Russian Federation, these rules are applied independently, since the law provides for various foundations.
9. If the person is condemned for the commission of a few crimes, then the decision to change the category of crime on a less seriously adopted if there is grounds for any reason for each crime, after which the court, taking into account the changed category of crime (crimes), appoints the final penalties on the basis of part 2 or 3 Articles 69 of the Criminal Code of the Russian Federation.
In the case of appointing a convicted penalty in the form of imprisonment, the Court applying the provisions of Article 58 of the Criminal Code of the Russian Federation in determining the type of correctional institution and the regime for serving the sentence must proceed from the modified crime category.
10. The court decision on the change in the category of crime with a serious crime of medium severity allows the court in the presence of the grounds provided for in Articles 75, 76, 78, 80.1, 84, 92, 94 of the Criminal Code of the Russian Federation, to free the convicted penalty from serving the appointed sentence.
In these cases, the court decides the sentence, the operative part of which should, in particular, to make decisions on the recognition of the defendant in committing a crime, on the appointment of punishment, about changing the category of crime into less serious, indicating the changed category of crime, as well as the release of the appointed Punishment (clause 2 of Part 5 of Article 302 of the Code of Criminal Procedure).
The person freed from serving the sentence on the specified grounds is considered non-audible (part 2 of Article 86 of the Criminal Code of the Russian Federation).
11. The use of part 6 of Article 15 of the Criminal Code of the Russian Federation does not affect the legal assessment of the act, including the preparation of a particular grave or particularly serious crime (part 4 and 5 of Article 15 of the Criminal Code of the Russian Federation), but equally does not entail legal consequences for persons For whom the decision to change the category of crime is not taken. In particular, the Changing Code of the Category of Crimes with a particularly serious for a serious crime does not exclude the criminal liability of another person in advance not the promised feeling of a particularly serious crime (Article 316 of the Criminal Code of the Russian Federation).
If the provisions of Part 6 of Article 15 of the Criminal Code of the Russian Federation on the change in the category of crimes are less serious, then all the legal consequences provided for by the criminal law related to its conviction (for example, in determining the recurrence of crimes in the event of a new crime, the use of landlord From serving a sentence, calculating the maturity of criminal record), should be determined taking into account the modified category of crime.
12. Courts should be borne in mind that in accordance with paragraph 4 of Article 304 of the Code of Criminal Procedure of the Code of Criminal Procedure in relation to a criminal record in the introductory part of the sentence, along with other data, which can be taken into account by the court when appointing the defendant and the amount of punishment, the type of correctional institution Recognizing the recurrence of crimes, resolving other issues of importance for business, it is necessary to reflect information about the change in the category of crime on a less heavy for the previous sentence.

Chairman of the Supreme Court
Russian Federation
V.M. Lebedev
Plenum Secretary
judge of the Supreme Court
Russian Federation
V.V. Momotov