Does the court oblige the exclusion of the lower limit of certain types of punishment in a number of articles of the Special Part of the Criminal Code of the Russian Federation (for example, Article 111 of the Criminal Code of the Russian Federation excludes the lower limits of deprivation of liberty) to re-qualify the offense to an article in the new edition, if a person was assigned this type of punishment? Should the court, in case of retraining, impose a lighter sentence ?
Article 10 of the Criminal Code of the Russian Federation establishes that a criminal law mitigating punishment or otherwise improving the position of a person who has committed a crime has retroactive effect.
If the new criminal law mitigates the punishment that is served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law (part 2 of article 10 of the Criminal Code of the Russian Federation). According to the legal position of the Constitutional Court of the Russian Federation, expressed in the decision of April 20, 2006 No. 4-P, contained in Part 2 of Art. 10 of the Criminal Code of the Russian Federation, an order to mitigate a sentence imposed by a court within the limits provided for by the new criminal law presupposes the application of general principles of sentencing, according to which, in such cases, mitigation of punishment will be carried out within the limits determined by the entire set of norms of the Criminal Code of the Russian Federation – as Special, and its General parts.
Otherwise, i.e. when interpreting Part 2 of Art. 10 of the Criminal Code of the Russian Federation as involving the use of only one rule in deciding the issue of punishment – on reducing the imposed punishment to the upper limit of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation as amended by the new law, persons who are already serving a sentence would be placed in an unequal position with those persons, in respect of whom the verdict was passed after the entry into force of the new criminal law and the decision of the issue of punishment is carried out taking into account both the upper and lower limits of the sanction of the corresponding article, as well as the circumstances specified in the General Part of the Criminal Code of the Russian Federation.
When imposing punishment under a milder law, the court must also take into account that the legislator, in the sanctions, has redefined the nature of the public danger of the relevant crimes – as less dangerous.
Thus, if the lower limit of certain types of punishments that were imposed on a person is excluded, the court must qualify the crime under the new criminal law and, on the basis of general principles for imposing punishment, assign a punishment in a smaller amount.…