Two plus two are not always four

When pronouncing sentences at once by several articles, judges are obliged to determine the punishment (or release from him) for each of the articles, and then proclaim the final sentence. However, it is far from always withdrawn from a simple amount of punishment in all respects.

Criminal cases

The term of imprisonment, to which the accused is actually sentenced, in many cases, is significantly less than the amount of terms for each article. So, the recently convicted, and then pardoned Ukrainian pilot Nadezhda Savchenko received 18 years on charges of murder, on charges of assassination of the murder - 10 years, and the final term was 22 years. Cinema director Oleg Sentsov , accused of terrorism in Crimea, received 15 years under an article on the organization of a terrorist community, 10 and 11 years - in two episodes regarded as the commission of terrorist acts, seven years - on charges of preparation to commit terrorist attacks and five for illegal storage of weapons and ammunition, that is, in total, 48 years of deprivation of liberty. As a result, the court sentenced him to 20 years.

Nevertheless, sometimes the final period is formed directly from the deadlines for individual articles. For example, ten years to the Maidan participant Andrei Kolomiytsa were composed of six years old on charges of attempting to kill Berkut employees and four under an article on drug storage.

The conviction in the case when the so -called “set of crimes” takes place, is regulated by Article 69 of the Criminal Code . It says, in particular, that if all the crimes for which a person judge is a small severity (that is, the maximum punishment is three years of imprisonment) or medium (five years), then a less strict from punishment can be absorbed more strict.

Partial or complete addition of punishments is also possible - the main thing is that the final period is not more than one and a half times more than the maximum term for the most difficult of the imputed crimes. That is, if the maximum term is heavier from articles five years, then the total term should be no more than seven and a half years.

Suppose, according to one article, small severity, it was decided to deprive the defendant for three years, and for another, moderate, by four. In case of absorption of punishment, the court will send him to the colony for four years. In the case of adding sentences, the term will be from four years and one month to the total seven years.

If for one article it was decided to give four years, and by another five, then the punishment will be from five to seven and a half years in prison.

All the same options are also possible when a person is accused of preparing or attempted a serious or especially serious crime.

If at least one of the crimes is serious (that is, the maximum punishment is ten years of imprisonment) or especially serious (more than ten years), then absorption of a shorter term is already impossible. Partial or complete addition of punishments on more severe articles occurs in the same way as less severe: the final period should not be more than one and a half times higher than the maximum term according to the most difficult article.

Lawyers believe that the method of complete addition makes sense if crimes are close in nature and degree of public danger.

It can be seen that in the case of partial addition (which is applied quite often), the scatter of the deadlines is quite large, and on which the final decision of the judge depends, it is not very clear from the outside - in the verdict the reasons for the choice of one or the option of addition are not explained.

It is enough to recall the sentences of eight accused in the “swamp case” in February 2014. Judge Natalia Nikishina considered that for participation in the riots, allegedly taking place on Bolotnaya Square on May 6, 2012, Denis Lutskevich, Alexei Polikhovich and Stepan Zimin should be given for three years, and for the use of violence to representatives of the authorities, which they allegedly committed, the first year, the second - year and three months, and the third for four months and four months. Despite this, as a result, by partial addition, all three received equal terms - three and a half years of the colony.

From left to right: Denis Lutskievich, Alexey Polikhovich and Stepan Zimin. All of them received three and a half years, despite the difference in terms of individual articles. Photo: Alexander Baroshin

According to lawyer Sergei Panchenko, who represented the interests of Zimin, the appointment of a final term is determined primarily by the discretion of the judge, as well as the personality of the defendant and the circumstances of the case. “There is regulation in the Criminal Code, but it is very approximate. It is written how much the sanction of the maximum article can be exceeded, the rest, as they say, by eye, ”the lawyer commented on the current practice.

It is appropriate to remind you, however, that this principle also works for a sentence according to one article: the code only sets the upper bar, after which the judge, making the decision, should be guided by what was set out in the case file and sounded during the process, including the presence of mitigating and aggravating circumstances that may affect the reduction or increase in the term. The judge must take into account, in particular, the state of health of the defendant, the presence of small children he had, he first committed a crime or not, what role he played in the commission of the crime, acted independently or to be forced to, whether he pleaded guilty, whether he contributed to the disclosure of the crime, and so on. The Code in this case establishes the upper pair of punishment: so, according to Article 62 of the Criminal Code, in the presence of mitigating circumstances, the final period should be no more than two -thirds from the maximum according to the corresponding article. If the accused wrote a confession, concluded an agreement with the investigation, contributed to the disclosure of the crime and at the same time there is no circumstances aggravating his guilt in the case, he can receive no more than half of the maximum term. In the event that a life imprisonment, the accused who concluded an agreement, will not be sentenced to such punishment, he can be sentenced to no more than two -thirds of the maximum term for the corresponding article expressed in numbers. (In more detail about the practice of sentences in the event of an agreement, you can learn from the publication of Kirill Titaev and Mikhail Pozdnyakov for Vedomosti.) Thus, taking into account all these factors, the range for establishing the final term is reduced.

In general, a picture with sentences in Russia, where the judge calculates the term “by eye” within the framework set by the Code, differs, for example, from the situation in the United States, where there are so -called Sentencing Guidelines - strict rules for sentences for accused of crimes, which are laid from half a year of imprisonment and higher, up to life imprisonment. The term of imprisonment for such crimes in the United States is calculated on the basis of a combination of two factors: the category of crime (in the meaning of the appropriate severity in the Russian Criminal Code) and the “criminal history”, that is, roughly speaking, the number of previous criminal records.

In Russia, the situation is complicated by the fact that in the case of some articles, individual terms are taken out for each individual episode. According to lawyer Panchenko, for example, if a person is accused of committing thirty thefts, then for each of the thirty episodes they can be given for a year - and then pronounced the verdict by aggregate: three years.

In general, according to Panchenko, an experienced lawyer can evaluate why this or that final sentence is passed, and even predict what he will be, “within the error of 15–20 percent” - but for each specific case separately, since the general rule does not exist.

“Do we need Sentencing Guidelines is a big question,” the lawyer argues. In his opinion, the presence of strict rules that determine the degree of punishment would not allow judges to significantly reduce the term in cases where “the situation requires a careful attitude to the defendant” - for example, to sentence him below the lower level determined in the law, if there are no strict formal grounds for that.

Administrative cases

The situation is different with the deprivation of liberty under administrative articles. The Code of Administrative Offenses prescribes to consider each offense separately. As the lawyer Julia Sycheva explained to the OVD-Info, "from the point of view of law, one offense has nothing to do with another." But there may be cases of the so -called ideal aggregate, when there are two offenses in one material: for example, a person, driving by car, knocked another and left the accident. Such cases are described in the second part of Article 4.4 of the Code of Administrative Offenses - this is called “one action (inaction) containing the compositions of administrative offenses, the liability for which is provided for by two or more articles (parts of the articles) of this Code and the consideration of the cases of which is subordinate to the same judge, body, official”. In this case, the punishment is determined by a more stringent of articles.

In 2013, the Plenum of the Supreme Court made a number of amendments to its own decree of 2005 regarding decisions on administrative articles. In particular, a situation was mentioned there when an administrative arrest is sent to a person who was already serving administrative arrest in another case. In this case, the Armed Forces recommended counting the term of arrest simultaneously with an unfortunate part of another arrest.

ATS-Info is known for many cases when two protocols on “arrest” articles are drawn up at once-for example, “the organization of the event without a notification” (part 2 of article 20.2 of the Code of Administrative Offenses) and “disobedience to the legal requirement of a police officer” (Article 19.3 of the Code of Administrative Offenses). This is a “real set”, that is, each of these offenses must consider separately. It happens that the court considers only one of these two cases at once, and puts off the consideration of the second on any other day. There are frequent cases when both administrative cases are considered on the same day, one article is sent under arrest, according to the other, they are fined. According to lawyer Sycheva, "as a rule, judges do not vice in such cases."

However, in January 2015, the Tver court twice demonstrated a clear absence of a “careful attitude” to the detainees. On January 16, Mark Halperin received two arrest periods at once, and for different shares held with an interval of several days: eight days for the “organization without notification” of a single picket in memory of the editorial office of the magazine “Charlie Hebdo” on January 10 and thirty - for “repeated violation of the order of the event” (part 8 of article 20.2 of the Code of Administrative Offenses), that is, the presence of Alexey’s gathering in support and Oleg Navalny on January 15. At the same time, in the special reception, where Halperin was delivered, they explained that after serving the first term he would be released, after which the next day should return and leave the next one. Later, the Moscow City Court reduced Halperin by the second term by eight days. And on January 27, Alexander Shelkovenkov, detained on shares on Lubyanka in support of Nadezhda Savchenko, received 15 days for disobedience and 30 days for “re -violation”, that is, only 45. The Moscow City Court also reduced the term for “repeated”, and twice.

Mark Halperin (left) and Alexander Silkovenkov

Unfortunately, there are no copies of the appropriate court decisions at the disposal of the ATS-Info, therefore it is not possible to say that the court really sent Halperin and Serekovenkov to arrest for 38 and 45 days, respectively. However, the explanation of the special projectile’s employees mentioned above about the need to serve the deadlines in turn goes against the law. Commenting on this collision, the lawyer of the Memorial human rights center Tatyana Glushkova referred, in particular, to Article 32.8 of the Code of Administrative Offenses , according to which the decree on administrative arrest is executed immediately.

If you are guided by the resolution of the Plenum of the Armed Forces, it should be assumed that Galperin and Silokenkov had the first arrest in the case of the second decision on the arrest, which means that the term of the second arrest had to be calculated simultaneously with the first. That is, in total, both Halperin and the Shelkovenkov were supposed to receive 30 days, and by the decision of the court of the second instance, Galperin - 22, and the silkenkov - 15 days.

“There is, however, article 31.5 of the Code of Administrative Offenses , which says:“ In the presence of circumstances, as a result of which the execution of the decision on the imposition of administrative punishment in the form of administrative arrest ... It is impossible to delay the execution of the decision for up to one month in the established time period, the judge, the official, the official, the official, the official, the official, the official. It does not indicate who can petition for the delay. But if a person is already sitting under arrest, this is not the inability to execute the punishment in the form of arrest, so this article cannot be applied here, ”explains Glushkov. She does not exclude that the judges who considered the cases of Halperin and Shelkovenkov could specifically indicate in one of the decisions that the period of administrative arrest is calculated from the moment the previous arrest was departed. However, Glushkov at the same time recalls that, according to the Code of Administrative Offenses, the period of administrative arrest is counted from the moment of detention.