One of the important concepts of the current legal system is punishment based on the totality of sentences. It is relevant in a situation where the court has to choose a punishment for a person who has committed several proven wrongdoings at once. The laws have established how specific measures are prescribed in this case. Consider the basic concepts and key factors affecting the final decision of the authority responsible for justice.
Terms and Difficulties
Directly, the Criminal Code of the Russian Federation does not give a precise set of sentences as a phenomenon, although the phrase appears more than once in paragraphs of acts. If you evaluate the legal nature of such a fact, it is worth adding it to the multiplicity of criminal activity. In such a situation, the choice of punishment should be subject to the provisions of the seventieth article, which regulates criminal law within our country. Many lawyers draw attention to the fact that the current situation is rather ambiguous, therefore it is important to update the legal documents in order to clearly distinguish between when article 70 should be applied and when other considerations need to be followed.
The key difficulty, as can be seen from the Criminal Code, of the totality of sentences is the problem of identifying the situation described by such a term. Indeed, it is not always possible to correctly formulate and prove a legal fact that causes the transformation of a repeated criminal act into a whole. Quite a long time ago this controversial moment became the object of attention of YOU. In 1999, a meeting was organized, following which the plenary issued a decision under the fortieth number. It also has no final unanimous interpretation. Of course, since then considerable judicial experience has been accumulated, but this does not simplify the situation, but only requires an early change of laws to eliminate disputed situations.
What to do?
In this controversial situation, the rules for sentencing in the aggregate of sentences apply to a situation where the fact of a repeated criminal act has been proved, and the prosecution has already made its final decision, but it has not yet entered into force. In fact, this repeats the practice that was characteristic of the period of Soviet power. This approach has a lot of supporters. Indeed, a citizen who is guilty of a repeated offense, when he finds himself in a situation when he has already been convicted of an act that has not entered into force, is highly dangerous to the public. The level of this danger is comparable to that characteristic of a citizen who committed a second unlawful act after the sentence for the first offense entered into legal force.
However, the opposite opinion can be called no less justified. A number of lawyers are firmly convinced that the imposition of a sentence on the totality of crimes and sentences is legally, morally, and socially justified only when the conviction of the indictment has already entered into force for the first unlawful act, and only after that the citizen again committed the offense. The basic legal factor for such a situation is the moment when the verdict for the primary event became fully relevant.
Theoretical aspects
The Code of Criminal Procedure in article 392 deserves special attention in the context of the topic under consideration, the first part of which considers the situation of relevance of the court ruling.It is with this regulatory document that the verdict, determination, if such a decision has entered into force, must be strictly executed. This applies to citizens, legal entities, authorities, government agencies and other associations, to all community members. In addition to the total court verdicts, a certain idea can be made from constitutional norms stating that guilt is only established when the court verdict has entered into legal force. This is declared by the first part of article number 49.
Already from the Constitution it is possible to draw a reasonable conclusion that the totality of sentences is applied only in a situation where a sentence for a primary offense has already entered into force, which means that consequences may arise associated with such a situation. If the court made an indictment that had not yet entered into force, but the citizen, legal entity again committed an offense, all this as a whole can be analyzed as a cumulative criminal act. But it’s premature to talk about the totality of sentences here.
Sentences and their features
To understand all the features of the totality of sentences, you need to navigate what each of them in itself means. The specifics of the decision are described in the Code of Criminal Procedure in Article 302. The topic is examined in more detail in the fifth part, which establishes that the sentence may be accompanied by the absence of punishment, the choice of some measure, from which they will then be released, as well as the determination on the basis of which the convicted person will serve his sentence.
Speaking about the totality of sentences, it is necessary to consider the situation in which the primary offense provoked the punishment associated with his serving in specialized conditions, since the legal nature of the aggregate phenomenon is the commission of an unlawful re-act during a period when a citizen is already punished (under appropriate conditions) for what happened earlier. But if in the initial case the court decided to release from punishment or preventive measures were not applied at all, the repeated offense cannot be used to determine the totality.
Different variants
An equally important aspect of the totality of sentences is the fact of determining which criminal act is considered repeated. In what situations two events become the basis for a sentencing together, and when this is not possible, different lawyers evaluate differently. Specialized literature contains several options for approaching the issue, each of them has its own pros and cons. One of the ways, which has many supporters, is the recognition of the possibility of sentencing in the aggregate if the citizen has completely passed the punishment for the first offense (basic, additional).
How to calculate correctly?
It seems reasonable to assess the possibility of issuing a cumulative sentence if a citizen was released on probation and the probationary period has expired, and with the conditional early form of release, the unserved period has come to an end. A set of sentences can also be discussed in situations where a woman carrying a fetus and also the mother of a minor child (several) appear before the court. In such a situation, a delay of stay is possible. If such a decision was made and the unexpired term came to an end, but a new offense was committed, the rules on the aggregate sentence can be applied.
There are disagreements
The described position has a number of weak points, and the very first of them concerns the terms of the aggregate sentences. If, according to the results of the first offense, a certain citizen was sentenced to a suspended sentence, conditional release ahead of time, or a postponement related to special factors (young children, pregnancy), and the period stipulated in the decision has expired, this can be equated to a full departure .The correctness of this conclusion is indicated by the decision adopted in 1999 under the fortieth number, which was the result of a meeting of the plenum of the Supreme Court of the Russian Federation. In particular, paragraphs 22, 23 are devoted to this aspect.
Based on the indicated observation, it is possible to exclude a special consideration of a number of cases, only mentioning that the criminal act that took place until the time when the sentence on the first event was fully served is re-examined.
Special occasion
A special approach is required in such a situation when, for the first offense, a citizen has already completely served the sentence assigned as the main, but the additional has not yet expired. In such a situation, when committing a repeated offense, one of the types of sentences comes to light that requires consideration of the legal authority. The law equally evaluates the importance of any form of punishment - both chosen as the main and appointed additionally. If there has been an offense before and at least some part has not yet been served, the new one becomes the reason for assessing the situation on the part of just such a legal approach.
Please note that the law establishes certain restrictions. Even if everything described above in relation to a specific case is fulfilled, there is a likelihood that it is still illegal to evaluate the situation using such logic. Each illegal act in the framework of a case led by a state institution must have its own legal, criminal consequences. This condition is mandatory for the possibility of classifying what happened with the appointment of sentences in the aggregate.
Aspects and Nuances
In order for the final punishment in the aggregate of sentences to be lawful and correct, it is necessary to check the situation for a number of signs. The first offense, in respect of which the decision formulated by the legal authority had already entered into force, presupposed a punishment, which at the time of the second act had not been fully served. The second act, which went against the laws, was committed after the decision came into force, but until the time the sentence was fully served. The criminal and legal consequences of the first component of the event are not in doubt, since a person has a criminal record at the moment the judge passes a guilty verdict. This is declared by the 86th article of the Criminal Code, the first part of the regulatory document.
Not so simple
To apply the norm in action, you must first bring the evidence base of the fact of a criminal record, then collect the documentation confirming that the term has not yet been fully served. In a situation where it turns out that the punishment has already been fully passed, only a criminal record will not be the basis for the adoption of an aggregate sentence. It is inadmissible to apply such a norm in a situation where the first offense has become the reason for exemption from punishment.
Nuances: continuing consideration
The set of sentences becomes applicable only if the second offense meets certain criteria. First of all, it is the presence of consequences: criminal, legal. Such can be canceled if the court decided to release the citizen from liability for the deed.
Theory and practice
For a more detailed consideration of the concept, it is necessary to study in detail the article published in the Criminal Code under number 17. The first part of the document indicates that a combination of crimes can be recognized as such a case when there are two or more criminal acts. An important condition: they must be evaluated according to different articles of normative acts or at least to different parts of one article. In order for a combination of crimes to take place, an important condition is the absence of a decision on any of the events.
If in such a situation all the misconduct identified are classified as minor, then strict punishment absorbs weak options.Sometimes the court decides in favor of addition (in parts, in full). The final version of the aggregate of punishments may be equal to the period corresponding to the standards regarding the most serious of committed acts proved during the meeting.
The situation is getting worse
One of the acts considered in the framework of the aggregate of crimes may belong to medium, grave or very grave. For this situation, two options of punishment are applicable - addition in whole or in part. The final decision cannot be restriction of freedom for more than a quarter of a century, but this applies only to the main punishment. For its weight, the court may make an additional. The law also establishes a restriction. They focus on the general part of the Criminal Code regarding unlawful acts considered in a particular case, determine the maximum option for the severity of the punishment. It is he who becomes the upper limit for the additional norm in a particular case.
Choosing an additional measure, the court first evaluates each of the committed unlawful acts, and only after that applies the summation rules to pronounce the verdict in aggregate. The procedure for determining additional punishment by Article 45 of the Criminal Code is regulated. It follows from it that it is possible to impose a fine, limit the possibilities of a career, activity, and also deprive a rank, rank, award. Another punishment option is confiscation of property.