Features of sentencing for the commission of a crime under Article 314 of the Criminal Code of the Russian Federation

Ligai Leonid Yur'evich Postgraduate student, Department of Criminal Law, St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 flash_go@mail.ru Other publications by this author

An analysis of the legislative structure of Article 314 of the Criminal Code of the Russian Federation allows us to state three independent elements of a crime, including various types of evasion, namely, evasion from serving a restriction of liberty imposed in the status of additional punishment (Part 1 of Article 314 of the Criminal Code), from serving imprisonment (part 2 of Article 314 of the Criminal Code) and from the use of compulsory medical measures character (Part 3 of Article 314 of the Criminal Code of the Russian Federation).

For a comprehensive study of the essential characteristics of the above-mentioned criminal law norm, it seems necessary to carry out its interdisciplinary consideration, taking into account the developed theoretical positions of scientists of the criminal and penal enforcement branches of law.

With regard to the studied elements of the crime, the issue of sentencing is of fundamental importance not only when choosing the most optimal measure of influence for committing a new criminally punishable act, which should affect the correction of the convicted person, but also when taking into account the type and duration of punishment for a previously committed crime, from which the convicted person evaded. In this regard, by primarily referring to the materials of law enforcement practice and based on the study of statistical data on convictions for committing acts regulated by Article 314 of the Criminal Code of the Russian Federation, we will analyze the most controversial and controversial issues related to sentencing.

In the general picture of crime, cases of crimes related to evasion from serving a sentence are characterized by a small proportion (Data from judicial statistics. General information about the state of criminal record in Russia // Official website of the Judicial Department at the Supreme Court of the Russian Federation. URL: http://cdep.ru/?id=79 (date of request: 04.09.2024)) (see table No. 1 below).

Table No. 1. Summary data on the number of convicts under Article 314 of the Criminal Code of the Russian Federation in the period from 2019 to 2023.

At the same time, the rather rare application of this norm in the practical activities of judicial authorities does not indicate the absence of problems in law enforcement and in the practice of sentencing.

In the framework of this study, we focus on the procedure and scope of sentencing in relation to Part 1 of Article 314 of the Criminal Code of the Russian Federation. An analysis of judicial practice under Part 1 of Article 314 of the Criminal Code of the Russian Federation in order to identify certain patterns allows us to conclude that when imposing punishment for criminal evasion, the courts ambiguously interpret the provisions of Article 69 of the Criminal Code and Article 70 of the Criminal Code of the Russian Federation, namely, in some cases they apply the rules of the totality of sentences, in others they refuse to apply them.

Based on this, judges establish a different amount of criminal punishment for the commission of identical, homogeneous acts.

An example is the verdict of the Justice of the Peace of the judicial district No. 1 of the Dergachevsky district of the Saratov region dated May 4, 2021 in case No. 1-10/2021, where Mr. Akhmedov was convicted. According to Part 4 of Article 69, Article 70 of the Criminal Code of the Russian Federation, the court fully attached the unserved part of the punishment in the form of restriction of liberty to the punishment imposed on Mr. Akhmedov A.Yu. under this sentence for committing crimes provided for in Part 1 of Article 314 of the Criminal Code and Part 1 of Article 139 of the Criminal Code of the Russian Federation and imposed the final punishment according to the totality of sentences (Sentence Justice of the Peace of the judicial district No. 1 of the Dergachevsky district of the Saratov region dated May 4, 2021 in case No. 1-10/2021 // GAS "Justice". URL: http://36.sar.msudrf.ru/modules.php?name=sud_delo&op=sd&number=5042352&case_number=4835163&delo_id=1540006 (date of application: 04.09.2024)).

The specified court verdict with a similar decision is not the only one, similar examples can be found in other judicial acts (The verdict of the Vyatskopolyansky District Court of the Kirov region dated July 15, 2019 in case No. 10-18/2019 // Judicial and regulatory acts of the Russian Federation. URL: https://sudact.ru/regular/doc/1OAi151PvL6B / (date of appeal: 04.09.2024); Verdict of the Justice of the Peace of the judicial district of the Sovetsky judicial district of the Kursk region dated April 20, 2021 in case No. 1-8/2021 // GAS "Justice". URL: http://sovetsky.krs.msudrf.ru/modules.php?name=sud_delo&op=sd&number=37278049&case_number=37024019&delo_id=1540006 (date of application: 04.09.2024)).

At the same time, there are cases where the convicted person is subject to criminal liability solely within the framework of the sanction of part 1 of Article 314 of the Criminal Code of the Russian Federation, without applying the provisions of Article 70 of the Criminal Code of the Russian Federation. By the verdict of the Sarov City Court of the Nizhny Novgorod Region dated November 18, 2015 in case No. 1-106/2015, citizen Mikhailov A.V. was found guilty of committing crimes under paragraph "b" of Part 2 of Article 158 of the Criminal Code of the Russian Federation and Part 1 of Article 314 of the Criminal Code of the Russian Federation. According to Part 1 of Article 314 of the Criminal Code of the Russian Federation, the convict was sentenced in the form of imprisonment for a period of four months; for committing an act regulated by paragraph "b" of Part 2 of Article 158 of the Criminal Code of the Russian Federation. Thus, the court considered it necessary to impose a sentence of imprisonment for a period of one year and ten months with restriction of liberty for a period of eight months. The final punishment was imposed for a set of crimes, the previously unserved part of the punishment in the form of restriction of freedom was not attached (The verdict of the Sarov City Court of the Nizhny Novgorod region dated November 18, 2015 in case No. 1-106/2015 // Judicial and regulatory acts of the Russian Federation. URL: https://sudact.ru/regular/doc/GpmvK86ZPT1C / (date of request: 04.09.2024)).

In turn, in judicial practice, it is possible to find such a punishment (without taking into account the requirements of Article 70 of the Criminal Code of the Russian Federation), when the convicted person commits exclusively the act provided for in part 1 of Article 314 of the Criminal Code of the Russian Federation, without combination with other crimes. For example, by the verdict of the Justice of the Peace of the judicial district No. 15 of the Tymovsky district of the Sakhalin region dated April 9, 2021 in case No. 1-8/2021, Mr. Bragin E.N. was convicted of evading serving restriction of freedom, the court sentenced him to imprisonment for a period of four months, indications of joining the term of restriction of freedom assigned according to the previously passed sentence and not fully served, there is no judicial act in the text (The verdict of the Justice of the Peace of the judicial district No. 15 of the Tymovsky district of the Sakhalin region dated April 9, 2021 in case No. 1-8/2021 // GAS "Justice". URL: http://15.sah.msudrf.ru/modules.php?name=sud_delo&op=sd&number=599107&case_number=574789&delo_id=1540006 (date of request: 04.09.2024)).

Taking into account the above legislative formulations, judicial practice regarding the choice of the most optimal punishment and its amount for committing criminal evasion is very differentiated. These differences and their impact on the lack of unity in law enforcement practice are also indicated by such researchers as Professor M.V. Bavsun ^[1], P.M. Nikishova ^[2], K.V. Fedoseev ^[3].

From the position of legislation on the dual approach of application / non-application of Articles 69 and 70 of the Criminal Code of the Russian Federation, there are no contradictions. This possibility is regulated in Part 4 of Article 69 of the Criminal Code of the Russian Federation, from which it follows that when imposing punishment for a set of crimes, the addition of additional punishments in determining the final measure of criminal legal impact is not mandatory.

The issue of sentencing according to the totality of sentences is resolved in an identical way (reference disposition in Part 5 of Article 70 of the Criminal Code of the Russian Federation).

However, the current practice cannot be considered sufficiently fair. It seems that it is necessary to form a unified approach when imposing punishment for a crime under Part 1 of Article 314 of the Criminal Code of the Russian Federation in order to comply with the principle of justice and equality of all before the law.

I.V. Gubko and L.A. Prokhorov, commenting on the issue of sentencing under Part 1 of Article 314 of the Criminal Code of the Russian Federation, express themselves as follows: "... the convicted person will again serve imprisonment for evading the restriction of freedom, and then again serve the restriction of freedom. And if this person again violates the restrictions established by the court? Should everything happen again?" ^{[4, p. 25]}.

For our part, we consider the correct decision, according to which the previously unserved part of the additional punishment in the form of restriction of liberty should be attached to the newly imposed punishment for committing a crime under Part 1 of Article 314 of the Criminal Code of the Russian Federation. Otherwise, the very significance of punishment in the form of restriction of freedom, acting as an additional punishment, is questioned, its significance is lost, established goals such as corrective action, prevention of new crimes are not achieved ^{[5, p. 11]}. Convicted persons develop a strong belief about impunity, about the inability of the State to effectively apply security measures, and doubts about the efficiency of judicial authorities and the criminal executive system are increasing.

I.A. Podroikina correctly notes: "since criminal prosecution does not imply a refusal to execute the initial punishment, this may have a greater stimulating effect on the convicted person after serving the originally imposed punishment" ^{[6, p. 183]}.

In this regard, in order to avoid cases of violation of the principles of justice and equality of all before the law and the court, it is proposed to supplement Article 53 of the Criminal Code of the Russian Federation, Part 51, as follows: "In the case of malicious evasion of a convicted person from serving a restriction of liberty imposed as an additional type of punishment, the court, when resolving the issue of criminal liability under the relevant article In the special part of this Code, the unserved part of the restriction of freedom is attached to the newly imposed punishment."

The issue of simultaneous serving of imprisonment (suspended sentence) and restriction of freedom (as an additional punishment) deserves special attention ^{[7, 8]}. Due to the fact that the term of serving restriction of freedom, as an additional punishment, begins to take effect after serving the main punishment – imprisonment (Article 49 of the Criminal Code of the Russian Federation), the person falls into conditions where identical mechanisms of corrective action prevail, represented in the form of preventive control and restriction of personal freedom, for example, freedom of movement. Also, according to the correct statement of I.V. Sokolov, this list includes "a ban on changing permanent residence, work, or study without notifying a specialized state body" ^{[9, p. 36]}.

It should be noted that with the simultaneous execution of restriction of liberty and deprivation of liberty (conditionally), difficulties may arise in choosing measures of responsibility in case of violation of established restrictions due to identical legal content. "In this case, the punitive nature of the main and additional punishments will be essentially the same, which contradicts the spirit of the law and the logic of building cumulative sanctions" ^{[10, p. 37]}.

The solution of the above problems is possible by supplementing the recommendations of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/28/2022 No. 20 "On some issues of judicial practice in criminal cases of crimes against justice" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/22/2015 No. 58 (ed. dated 12/18/2018) "On the practice of assigning criminal punishment by courts of the Russian Federation" [Electronic resource]. – Access mode: https://www.consultant.ru/document/cons_doc_LAW_190932 /, free – (date of appeal: 04.09.2024)) on the refusal to impose conditional imprisonment with restriction of liberty as an additional punishment, due to identical restrictions imposed on the convicted person.

Thus, within the framework of this article, the following conclusions are formulated:

1. The patterns of the practice of sentencing for the commission of a crime provided for in Part 1 of Article 314 of the Criminal Code of the Russian Federation are revealed, which are characterized by an ambiguous approach of judges in terms of applying the provisions of Articles 69 and 70 of the Criminal Code of the Russian Federation.

2. In order to preserve the equality of all before the law, respect for the principle of justice, the author proposes to attach the unserved part of the additional punishment in the form of restriction of freedom to the newly imposed punishment. Otherwise, the importance of restriction of freedom, acting as an additional punishment, is lost.

3. Recommendations are formulated to supplement the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/28/2022 No. 20 "On certain issues of judicial practice in criminal cases of crimes against justice" regarding the prohibition of simultaneous execution of restriction of liberty imposed as an additional punishment and conditional punishment, due to identical methods of influencing the convicted person.