The definition of "recidivist" is heard by many citizens. When viewing news or radio, informants often notify about events that occurred with the participation of repeat offenders. The concept of relapse exists in many sectors, criminal, medical and others. Relapse in medicine is a recurring phenomenon of the disease, which requires increased measures of influence on the body to cure it. You can compare concepts and see analogies. Therefore, we consider the above concept and the sentencing procedure in more detail.
The concept of relapse
In accordance with the regulatory framework, relapse refers to a crime (unlawful, guilty act) committed by a person repeatedly if the person’s criminal record for a crime committed earlier has not been repaid.
Criminal record
A citizen convicted of an unlawful act acquires a criminal record from the moment the sentence comes into force. The end of the criminal record is the date that ends or extinguishes the criminal record. Let's consider the terms in more detail.
The length of time in which a criminal record is considered outstanding is established by criminal law. Sentencing for recidivism takes into account the outstanding criminal record. Therefore, this issue is very important when the court considers the case materials and makes a decision.
A criminal record may entail other consequences that, in the opinion of the court, must be applied to fully correct a person.
A criminal record expires if:
- the citizen is conditionally convicted (withdrawn at the end of the probationary period);
- the crime committed is classified as minor and moderate (term expires three years after serving the sentence);
- the citizen was convicted by the court for a crime of minor gravity and the court made a soft decision (repayment is made after a year of execution of the sentence imposed);
- a citizen has committed a serious crime (eight years after serving his sentence);
- the person is accused and convicted of a crime belonging to the category of especially grave (it is necessary to serve ten years to pay off a criminal record).
There are cases when a person guilty of committing an unlawful act was released ahead of schedule in a lawful order or part of the remaining sentence was changed to a different, milder one. In this case, the countdown begins at the beginning of the sentence.
Important! A convicted person who understands and realizes the gravity of a criminal offense may request a court by filing a request for the removal of a criminal record. The judge considers this application and makes a decision to remove the criminal record in the event that the person had perfect behavior, and also compensated the moral and material damage to the victim.
Withdrawal and cancellation of a criminal record is a process that cancels all prohibitions provided for citizens who have committed a crime. For example, hiring for certain positions is prohibited due to its presence. Thus, withdrawal or repayment of it is a way out of the situation. Therefore, the rules for sentencing for recidivism work with an outstanding or unexpunged criminal record.
Types of Relapse
There are few varieties of relapse. Separation into species occurs by establishing the gravity of the crime. So, the types include:
- Dangerous relapse. This type provides for the commission of an unlawful guilty act repeatedly. If the crime category is severe, a dangerous relapse is considered when committing the previous crime 2 or more times (moderate). At the same time, a citizen must be convicted and punished with imprisonment for previous crimes. Assignment of punishment in case of dangerous relapse with the imputation of other types of punishments is not applied. In addition, it is considered dangerous if the person committed an unlawful socially dangerous act of a grave category and if he had previously been held accountable and deprived of his liberty for a grave (or especially grave) crime.
- A particularly dangerous relapse is a phenomenon that occurs when a person commits a crime of a grave category, if before that a court passed a sentence and a citizen was deprived of his liberty for committing two or more times of a grave crime. At the same time, the concept also applies in cases where a person commits a particularly serious crime, but has also previously been prosecuted several times for a grave (or especially grave) act. That is how punishment is prescribed in case of especially dangerous relapse.
Relapse as an aggravating circumstance
It is an aggravating circumstance that is taken into account when a court pronounces a sentence.
The legislator imposes stricter penalties for detecting relapse for many reasons.
Firstly, it is believed that the previous punishment was not corrected by the person, in connection with which the citizen is required to be placed in prison for a longer period. Secondly, for relapse, the court may impose additional punishments and bring to liability, so that the guilty person understands the gravity of the act did not resort to its repetition.
The sentence for relapse in the Russian Federation is established according to the rules of justice and legality.
Cases where relapse is not considered
Crimes committed by citizens of the Russian Federation do not always have a purpose and motivation. In this connection, the legislator has established a list of cases when relapse is not taken into account. Let us consider in more detail this legal phenomenon.
Relapse will not be taken into account when considering a case by a court if:
- there is an unexpunged or outstanding conviction for an unlawful act of minor gravity;
- the person accused of committing a crime is a minor;
- the presence of a delay of punishment, the conventions of imputing measures;
- the person did not serve a term in prison, and the court established other forms of correction of a citizen;
- a criminal record is canceled or withdrawn.
The described cases of court proceedings are special, and the imposition of punishment for relapse in this case is not considered.
Criminal Procedure
The legislator, when prescribing punishment for relapse, relies on the following regulatory legal acts:
- The Constitution of Russia (as it establishes the rights and freedoms of man and citizen, and also establishes the judicial system and rules for sentencing for the full correction of perpetrators).
- The Criminal and Procedural Codes establish the norms for conducting investigations and judicial actions, imposing sentences for relapse (in the Criminal Code of the Russian Federation it establishes its procedure under Article 68).
- Code of Enforcement Procedure.
- Orders and decrees of the president of the Russian Federation, the government of Russia.
- Joint orders of the Ministry of Internal Affairs of Russia, the Investigative Committee of the Russian Federation.
- Orders, instructions and orders of the Prosecutor General of Russia.
This regulatory framework provides a full investigation and determination of all facts, guilt of a person and compares a fair punishment with guilt by imposing a corrective measure.
Relapse punishment
Relapse of the crime, as already mentioned above, is established in the presence of a criminal record of a citizen. If a citizen has committed a serious crime, but there is an outstanding conviction for a crime of minor gravity, for which a conditional sentence is imputed, such a concept will not be taken into account.
Consider the example when the court establishes a clear relapse and imposes a sentence. So, if a citizen G. has committed a serious crime for which he has been sentenced to imprisonment in a maximum security colony, he commits a large-scale sale of drugs for release, the court takes into account all the circumstances and establishes a relapse. In this connection, the person will be sentenced to a longer term.
Under article 68 of the Criminal Code of the Russian Federation, the term of punishment for any type of recidivism may not be less than 1/3 of the maximum term of the most severe type of punishment provided for a crime.
In addition, if law enforcement agencies see not only the sale, but also the production of a narcotic drug, the court will impose a sentence for the combination and relapse of crimes. Consider this issue in more detail below.
Assignment of punishment in the aggregate and relapse
The totality of crimes called the commission of several unlawful acts. As a rule, an investigator or inquiry officer separates one criminal case from another and establishes the composition separately from the previous crime.
When criminal cases are sent to a court, an outstanding conviction will be applied in both cases, and the judge will impose a sentence on the totality of crimes. In some cases, if a person has not served his sentence, but has committed a new one, the court has the right to impose punishments by addition and come to a common denominator.
It should be noted that if the relapse is confirmed, the judge will aggravate the situation of the accused and impose severe punishment.
Attitude of the court to repeat offenders
Repeat offenders are the subjects of crimes that require special attention. The judge, when re-examining the case materials in relation to the same person, has a different attitude to the act and imposes severe punishment. In addition, when making a second decision, he already knows the characteristics of the defendant and quickly understands the facts.
In case of relapse, the court session can last several hours, as the judge establishes all the facts of not only the new committed act, but also the previous guilty offenses. Usually, hearings are stretched over several stages.
The role of the public prosecutor in the trial is also great. The prosecutor has the facts and defends the prosecution, pointing out the detailed facts of the crime. When the public prosecutor reads the speech, all the characteristics of the accused, as well as the nature and causes of the crime committed earlier, are taken into account.
The accused may repent or request a pre-trial agreement for faster investigation and assistance to investigators and the prosecutor. This fact can mitigate the punishment if the court sees it as mitigating. According to Art. 68 of the Criminal Code, if the court establishes extenuating circumstances, the term of punishment may be assigned less than 1/3 of the maximum term of the most severe type of punishment provided for a crime.
The role of lawyer and advocate
It should be borne in mind that in the investigation of criminal offenses, each defendant is assigned a defense attorney, who is obliged to defend the rights and interests of his client. In the event of a relapse, lawyers, as a rule, understand that a person has committed a second crime, and therefore they no longer collect evidence for the release of the person, but help to mitigate the punishment in some way.
The defendant has the right to refuse the state free defense counsel and hire a lawyer at his discretion. Moreover, the lawyer can get acquainted with all the materials of the current and previous cases (by requesting copies of the materials).
Relapse as a danger to society
At its core, relapse is a disease of society, since the penal system is designed to correct a person. However, it turns out quite the opposite. A citizen who has left the place of deprivation of liberty commits new crimes, in connection with which it damages the entire society and its individual cells in particular.
Therefore, sentencing for relapse in the Russian Federation is carried out with special attention and responsibility.
Relapse amnesty
Earlier, the RSFSR Criminal Code prohibited the amnesty of convicts who were assigned the status of repeat offenders. To date, amnesty for prisoners is possible if it is provided for by law. For example, when committing a particularly dangerous relapse, amnesty can be worthless. But when committing crimes of minor gravity, the state body can amnesty and replace the remainder of the unserved crime with a less serious serving.
In this connection, it should be understood that relapse is a particularly dangerous act and features of sentencing for relapse take place.