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Recommendations for drafting petitions for persons convicted under Article 228 of the Criminal Code of the Russian Federation

In accordance with Part 2 of Article 5 of Federal Law No. 162-FZ of December 8, 2003 "On Amendments and Additions to the Criminal Code of the Russian Federation" (as amended by Federal Law No. 12-FZ of March 11, 2004), Articles 228 (as amended), 2281, 2282, 231 (as amended) of the Criminal Code of the Russian Federation shall enter into force on May 12, 2004. The amounts of average single doses of narcotic drugs and psychotropic substances for the purposes of Articles 228, 2281, 2282, 229 of the Criminal Code of the Russian Federation were approved by Decree of the Government of the Russian Federation No. 231 of May 6, 2004.

1. In accordance with Article 10 of the Criminal Code of the Russian Federation, persons in respect of whom the sentence entered into legal force before 12.05.2004 have the right to petition:

1.1 On release from all types of punishment with the removal of criminal records of those convicted of crimes provided for by:

a) part one of Article 228 of the Criminal Code of the Russian Federation (if, in accordance with note 2 to this article, the quantity of the illegally stored or illegally acquired drug or substance is less than 10 average single doses);

b) parts two through four of Article 228 of the Criminal Code of the Russian Federation (in terms of the illegal production for personal or group consumption, processing or transportation of narcotic drugs or psychotropic substances, if, in accordance with note 2 to this article, the quantity of the drug or substance manufactured, processed or transported is less than 10 average single doses).

1.2. On the reduction of the unserved portion of the sentence in the form of imprisonment of convicted persons:

a) for a term of over three years of imprisonment for crimes provided for in parts two to four of Article 228 of the Criminal Code of the Russian Federation (in terms of illegal production for personal or group consumption, processing and transportation of narcotic drugs or psychotropic substances, regardless of quantity), - for a term not more than three years of imprisonment;

b) for a term exceeding seven years of imprisonment for crimes provided for in paragraph "b" of part three of Article 228 of the Criminal Code of the Russian Federation (in terms of illegal acquisition or storage for the purpose of sale, manufacture not for the purpose of personal or group consumption, transfer or sale of narcotic drugs or psychotropic substances) - for a term of not more than seven years of imprisonment;

c) for a term exceeding seven years of imprisonment for crimes provided for in parts three to four of Article 228 of the Criminal Code of the Russian Federation (in terms of illegal acquisition or storage for the purpose of sale, manufacture not for the purpose of personal or group consumption, transfer or sale of narcotic drugs or psychotropic substances, if, in accordance with note 2 to this article, the quantity of the drug or substance is less than 10 average single doses), - for a term of not more than seven years of imprisonment;

d) for a term exceeding ten years of imprisonment for crimes provided for in Part Four of Article 228 of the Criminal Code of the Russian Federation (in terms of illegal acquisition or storage for the purpose of sale, manufacture not for the purpose of personal or group consumption, shipment or sale of narcotic drugs or psychotropic substances, if, in accordance with Note 2 to this article, the quantity of the drug or substance is 10 or more, but less than 50 average single doses), - for a term of not more than ten years of imprisonment;

d) for a term exceeding seven years of imprisonment for crimes provided for in paragraph "b" of part three of Article 229 of the Criminal Code of the Russian Federation (in relation to narcotic drugs or psychotropic substances in an amount of less than 10 average single doses) - for a term of not more than seven years of imprisonment.

1.3. On release from imprisonment convicted of crimes provided for in Part Five of Article 228 of the Criminal Code of the Russian Federation (except in cases where the crime was committed for mercenary motives or if it resulted, through negligence, in causing harm to a person’s health or other serious consequences).

It is also necessary to take into account the amendments introduced by the Federal Law of 8 December 2003 concerning the recognition of dangerous and especially dangerous recidivism (Article 18 of the Criminal Code of the Russian Federation), the appointment of punishment for recidivism of crimes (Article 68 of the Criminal Code of the Russian Federation). According to the new version of Article 68, the term of punishment for any type of recidivism cannot be less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the sanction of the relevant article. Thus, the previously effective requirements for the appointment of at least half of the maximum term of the most severe type of punishment provided for the imputed crime in the case of recidivism, at least two thirds of the maximum term of the most severe type of punishment provided for a dangerous recidivism, and at least three quarters of the maximum term of the most severe type of punishment provided for a particularly dangerous recidivism have been cancelled.

Sample petition in connection with the issuance of a law with retroactive effect

To the district court of the city of N, n-th region
from convicted Ivanova Maria Ivanovna, born 01.01.1900, convicted by the ... District Court of the n-th Region on 01.01.2000 under Article 228, parts 1 and 4 of the Criminal Code of the Russian Federation to imprisonment for a term of 13 years, serving her sentence in the institution (address)

Petition in connection with the execution of the sentence

In accordance with Part 3 of Article 396, Clause 13 of Article 397 of the Criminal Procedure Code of the Russian Federation, I ask that the sentence imposed on me by the court in the form of imprisonment be reduced.

I was charged with illegal acquisition and storage without intent to sell, illegal acquisition and storage for the purpose of sale, and sale of a narcotic drug (heroin) in the total amount of 0.203 g, which at the time of my conviction was considered an especially large amount. Using Article 68 of the Criminal Code of the Russian Federation, the court sentenced me to 12 years and 6 months of imprisonment on the basis of Article 69 of the Criminal Code of the Russian Federation. At the same time, the court overturned the previously suspended sentence imposed on me under the sentence of the ... District Court of the N-th Region dated 01.01.1998, which, under Article 228, Part 4 of the Criminal Code of the Russian Federation, was sentenced to 3 years of suspended imprisonment for illegal acquisition and storage for the purpose of sale and sale of a narcotic drug (heroin) in the amount of 0.12 g, which was considered an especially large amount. Based on Article 70 of the Criminal Code of the Russian Federation, the final sentence was 13 years of imprisonment.

According to paragraph 154 of Article 1 of Federal Law No. 162-FZ of 08.12.2003 "On Amendments and Supplements to the Criminal Code of the Russian Federation", which entered into force on 12 May 2004, amendments were made to the norms of criminal substantive law that improve my position as a convicted person. According to Note 2 to Article 228 of the Criminal Code of the Russian Federation (in the new version), a large amount (including for Article 2281) is recognized as such a quantity of a narcotic drug, psychotropic substance or their analogue that exceeds the average single dose of consumption by ten or more times. By Decree of the Government of the Russian Federation of 06.05.2004 No. 231, the average single dose for this substance is defined as 0.1 g. Consequently, a large amount is recognized as an amount of 1 gram of heroin or more. In addition, criminal liability for illegal acquisition and storage for the purpose of sale as an independent crime has been abolished. Illegal acquisition and storage without the purpose of sale of narcotic drugs in an amount that is not large, which is the amount of funds seized from me, falls under Article 6.8 of the Code of Administrative Offenses of the Russian Federation and is not a criminally punishable act.

Thus, the act committed by me in terms of distribution of a narcotic drug (under the sentence of 08.11.2000 and under the sentence of 17.09.1998) currently falls under Article 2281 Part 1 of the Criminal Code of the Russian Federation - distribution in an amount that is not large, and entails a punishment in the form of imprisonment for a term of 4 to 8 years. At the same time, since the punishment for this crime in the criminal law has been increased (instead of a sanction of 3 to 7 years of imprisonment under Article 228, Part 2 of the Criminal Code of the Russian Federation in the previously effective version, a punishment in the form of imprisonment for a term of 4 to 8 years was established under Article 2281 of the Criminal Code of the Russian Federation as of 12 May 2004), when reviewing the sentence, taking into account the fact that the law increasing the punishment does not have retroactive effect, the sanction that was applied to the corresponding crime before 12 May 2004 shall be applied.

The act imputed to me, which consisted of illegal acquisition and storage for the purpose of sale, is subject to exclusion from the sentence.

The act imputed to me under Article 228, Part 1 of the Criminal Code of the Russian Federation, due to the fact that the quantity of narcotic drugs acquired and stored was not large, ceases to be a criminal offense, but is an administrative offense.

By the court's verdict, the act imputed to me was qualified in accordance with Article 18 of the Criminal Code of the Russian Federation as committed in the case of an especially dangerous recidivism. When sentencing me, taking into account Articles 18 and 68 of the Criminal Code of the Russian Federation in the version in effect at the time of my conviction, the court, having recognized the presence of an especially dangerous recidivism, was guided by the rule according to which the term of punishment in the case of an especially dangerous recidivism could not be less than three-quarters of the maximum term of the most severe type of punishment provided for the given crime.

Federal Law No. 162-FZ of December 8, 2003 amended Article 18 of the Criminal Code of the Russian Federation, according to which the act imputed to me is not considered to have been committed in the case of a dangerous or especially dangerous recidivism. According to the amendments made by the same law to Article 68 of the Criminal Code of the Russian Federation, the term of punishment for any type of recidivism cannot be less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the limits of the sanction of the relevant article.

In view of the above, I ask the court, in accordance with Article 10 of the Criminal Code of the Russian Federation ("Retroactive effect of the criminal law"), to reclassify the crime imputed to me under Article 228, Part 4 of the Criminal Code of the Russian Federation to Article 2281, Part 1 of the Criminal Code of the Russian Federation, to reduce my sentence with the application of sanctions established by Article 228, Part 2 of the Criminal Code of the Russian Federation in the previously effective version, taking into account the amendments made to Articles 18 and 68, releasing me from the punishment assigned to me under Article 228, Part 1 of the Criminal Code of the Russian Federation.

Compiled by Lev Levinson

Udjin Boot
25.07.2004
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Gianni
04/21/2007
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