Kochubeevsky District Court of the Stavropol Territory. The driver was found guilty of violating traffic rules under part 1 of article 264 of the Criminal Code of the Russian Federation, moral damages were recovered from him in favor of the victim

Case 1-237/2013

SENTENCE

In the name of the Russian Federation

Chelyabinsk city

Kurchatovsky District Court composed of: the presiding judge Kazakov A.A., with the secretaries of the court session Voronkova T.A. and Gagarina A.S., with the participation of public prosecutors - assistant prosecutors of the Kurchatov district of Chelyabinsk Asadullina D.F., Sukhodoev A.G., senior assistant prosecutor of the Kurchatov district of Chelyabinsk Baidina A.M., acting prosecutor Kurchatovsky district of Chelyabinsk Mesenin AND.The., the victim and civil plaintiff Abdullin R.A., his representative - Kolodkina D.S. and his defense lawyer - lawyer Afanasiev S.V.,

Having examined in open court a criminal case on charges of:

Andrey Nikolaevich KIRYAKOV, born March 12, 1990
in the village of Dolgoderevenskoye, Sosnovsky district, Chelyabinsk region,
a citizen of the Russian Federation, with a secondary education, unmarried, with no children, no
convicted, working in 000 private security company "Varyag" as an electrician
OPS, registered and actually residing at the address: Chel-
Binsk region, Sosnovsky municipal district, Dolgoderevenskoye village,
street of the 50th anniversary of the Komsomol, house number 9 ,

in the commission of a crime under Article 264 Part 1 of the Criminal Code of the Russian Federation,
installed:

On August 24, 2012, at about 10:50 p.m., the driver Kiryakov A.N., driving a personal, technically serviceable car “VAZ-21103”, state registration plate Е277НВ / 174, was moving in Chelyabinsk along the left lane of the roadway “ Northern Beam" in the direction from the street. Khlebozavodskaya to the Sverdlovsk tract at a speed of at least 129 km / h, significantly exceeding the speed allowed in settlements, thereby creating a danger to other road users, since by his actions he deprived himself of the opportunity to constantly control the movement of the vehicle and fulfill the requirements of the Rules related to it .

On the way Kiryakov A.N. approached the section of the roadway "Northern Luch", on which the bridge over the Miass River is located.

At the same time, on the indicated bridge in passing Kiryakov A.N. direction, to the right of its lane, driving a VAZ-21 099 car, state registration plate 0805XA174, the driver Abdullin R.A.

The driver A.N. 23 hours 20 minutes on August 24, 2012 in the Kurchatovsky district of Chelyabinsk, on the bridge across the Miass river, he collided with a VAZ-21099 car, state registration number 0805XA174, driven by driver Abdullin R.A.

As a result of a traffic accident, the driver of the VAZ-21099 car Abdullin R.A. a combined blunt trauma to the chest and abdomen was caused, including fractures of the left shoulder blade, two ribs on the left, a closed injury of the abdominal cavity - a rupture of the spleen with hemorrhage into the abdominal cavity (hemoperitoneum).

Injuries included in the complex of combined blunt trauma of the chest and abdomen, according to a medical criterion corresponding to a greater severity of harm (harm to health, dangerous to human life, creating a direct threat to life), are qualified as causing serious harm to health on the basis of danger to life.

The cause of this traffic accident was a violation by the driver Kiryakov AN. the requirements of the following paragraphs of the Rules of the Road of the Russian Federation, approved by the Decree of the Council of Ministers - the Government of the Russian Federation of October 23, 1993 No. 1090:

10.1 “The driver must drive the vehicle at a speed not exceeding the established limit, taking into account the traffic intensity, the features and conditions of the vehicle and cargo, road and meteorological conditions, in particular the visibility of the direction of travel. The speed must provide the driver with the possibility of constant control over the movement of the vehicle in order to fulfill the requirements of the Rules.

If there is a danger to traffic that the driver is able to detect, he must take all possible measures to reduce speed until the vehicle stops”;

10.2. “In built-up areas, vehicles are allowed to move at a speed of no more than 60 km / h ...”.

Defendant Kiryakov A.N. did not plead guilty to the crime and testified that on August 24, 2012, at about 11:10 p.m. in Chelyabinsk, on the extreme left lane of the roadway "Northern Luch", in the direction of the Sverdlovsk tract at a speed of about 100 km / h. On the way along the indicated route, he saw that there was a car ahead in the region of the extreme right lane, as it seemed to him in a stationary (stationary) state, while they were not indicated by a turn. He continued to move, as the next moment, the car made a U-turn on the bridge over the Miass River, resulting in an accident. He believes that the cause of the accident was the actions of the driver of the car, who undertook a U-turn maneuver on the bridge, does not recognize the claims of the victim. He asks for an acquittal against him.

After analyzing and evaluating the evidence presented by the prosecution and defense, the court concludes that the guilt of Kiryakova A.GN. in violation by him, as a person driving a car, of the rules of the road, which negligently entailed the infliction of grievous harm to human health is proved.

The victim R.A. Abdullin testified that on August 24, 2012, in the evening, he was driving his personal VAZ-21 099 technically sound car, state registration number 0805XA174, and was moving along the carriageway of the Northern Luch highway, in the direction from the street. Aral to the Sverdlovsk tract. In the cabin of his car, R.F. Akhmetshin was in the front passenger seat. Moving on the right lane of the roadway, he realized that he was moving in the wrong direction and decided to turn around to go in the opposite direction. To this end, he moved into the leftmost lane and took steps to turn around, looking in the rearview mirror and making sure that there were no vehicles. The speed of his car at the time of the maneuver was about 10 km/h. The next moment, when his vehicle was across the roadway, he heard a characteristic sound for a braking vehicle, felt a strong blow and lost consciousness. Does not deny the fact that the U-turn could be carried out on the bridge. He asked the court, when passing the verdict, to compensate for non-pecuniary damage in the amount of 300,000 rubles, arguing that he suffered physical and moral suffering, motivating his decision by the fact that he was in a medical institution for a significant period of time, he underwent an operation and the spleen was removed.

Witness Akhmetshin R.F., gave evidence similar in its logical content, as well as the victim Abdullin R.A., while indicating that when performing a turnaround maneuver, he heard how the sound worked to repeat the indicator of the corresponding turn.

He confirmed the testimony given by him during the preliminary investigation, read out at the request of the defense, in accordance with Article 281 part 3 of the Criminal Procedure Code of the Russian Federation, in terms of the fact that R.A. Abdullin began to carry out the U-turn maneuver from the right lane. (Volume № l ld 86-88).

According to the conclusion of the forensic medical expert on December 25, 2012, Abdullin R.A. there was a combined blunt trauma of the chest and abdomen, including fractures of the left shoulder blade, two ribs on the left, closed damage to the abdominal cavity - rupture of the spleen with hemorrhage into the abdominal cavity (hemoperitoneum). Injuries included in the complex of combined blunt trauma to the chest and abdomen, according to a medical criterion corresponding to a greater severity of harm (harm to health, dangerous to human life, creating an immediate threat to life), are qualified as causing serious harm to health on the basis of danger to life. (Volume № l ld 47-50).

During the inspection of the scene, the results of which were reflected in the relevant protocol of the investigative action at the scene of the traffic accident, traces of emergency braking of the VAZ-21103 car, state registration plate E277NV / 174, were recorded. The brake track of the right front wheel is 29.2 meters long before the track break, 2.0 meters after the break. The braking track of the left front wheel is 31.2 meters long before the track break, 13.1 meters after the track break. At the scene of the incident, a trace of the lateral movement of the VAZ-21099 car, state registration plate 0805XAl74, 14.4 meters long, was recorded. The collision site of the car "VAZ 21099", state registration plate 0805ХА174, and the car "VAZ-21103", state registration plate Е277НВ/174, is located on the carriageway of the Northern Luch highway, and is located 12.3 meters from the end of the iron fence of the bridge across the Miass River, located on the right in the direction of vehicles in the direction from Khlebozavodskaya St. to the Sverdlovsky Trakt, and 10.8 meters from to the right edge of the carriageway in the direction of vehicles. (Volume No. 1 pp. 15-21).

The accident certificate and the accident certificate contain information about the collision of two cars on August 24, 2012 at about 22 hours 50 minutes in Chelyabinsk, on the roadway "Northern Luch", on the bridge over the Miass River - a car "VAZ 21099", state registration plate 0805XAl74, driven by driver Abdullin R.A. and the car "VAZ-21103", state registration plate Е277НВI174, driven by the driver Kiryakov A.N. (Volume No. 1 ld 13, 14).

From the testimony of the witness Frolov V.V., given by him during the preliminary investigation and read out in connection with his failure to appear at the request of the public prosecutor with the consent of the defendant and the defense, it follows that on August 24, 2012 he was on daily duty in the traffic police of the Ministry of Internal Affairs of Russia for the city of Chelyabinsk, as a duty officer to go to the scene of an accident. His immediate functional duties included the implementation of trips to the scene of traffic accidents, analysis, and drawing up accident schemes with fixing all the traces directly related to the traffic accident, the location of cars, and objects related to accidents. At about 11:30 p.m. on the same day, on the radio station, he received a message from the senior operational duty officer of the traffic police of the Ministry of Internal Affairs of Russia in Chelyabinsk about a traffic accident with the victim. According to the officer on duty, it became known that a collision of cars occurred on the bridge across the Miass River along the Northern LUCH highway. Upon arrival at the scene, in the presence of two witnesses, he proceeded to the inspection, the results of which he reflected in the corresponding protocol and scheme. During the inspection of the scene, traces of braking of the VAZ-2110 car were recorded. There was no doubt that the brake marks belonged to the VAZ-2110 car, since they ended under the front wheels of this vehicle, in addition, the driver himself explained that he had applied emergency braking before the collision. The place of the collision was established at the place of the break in the braking track of the VAZ-2110 car. The positions of the cars after the collision were also recorded, as well as the trace of the lateral displacement of the VAZ-21099 car after the collision. After the end of the protocol of inspection of the scene, an appropriate protocol and diagram were drawn up, which the attesting witnesses got acquainted with and signed them. (Volume No. 1 pp. 98-100).

Witness Mikhailov M.V. testified that on August 24, 2012 he worked on a tow truck. In the evening of the same day, an application was received from the dispatcher to evacuate the car after an accident, due to the fact that the driver was hospitalized in a medical facility. Upon arrival at the scene of the accident, he saw that there had been a collision between two domestically produced cars. The vehicles were on the road. At the request of the traffic police, he took part as a witness during the inspection of the scene, during which the traffic police also took measurements using a laser length gauge, reading the results on the scoreboard. The circumstances of the accident became known to him from the words of a witness who was a passenger in one of the cars involved in the accident. During the inspection of the scene, traces of emergency braking of one of the vehicles were recorded.

From the testimony of witness Mikhailov M.V., read out at the court session at the request of the public prosecutor, due to the presence of significant contradictions, it follows that on August 24, 2012, at about 23:20, he received a message from the dispatcher to evacuate the car “VAZ-21 099 after an accident from the Northern Luch highway. On arrival at the scene, he saw that on the roadway "Northern Luch", on the bridge over the river Miass, there are two cars - "VAZ-21099" and "VAZ-21100". The VAZ-2110 car was located on the left lane of the roadway in the direction of movement from the city dump to the Sverdlovsk tract, while its front part was located towards the Sverdlovsk tract. The car "VAZ-21099" stood on the left lane, only it was located across the roadway. The side part of the VAZ-21099 car was damaged on the left side, at the level of the middle pillar there was a deep deformation towards the inside. The car "VAZ-2110" had damage on the front of the body. Based on the damage to these vehicles, it was clear that the VAZ-2110 car had collided with its front end with the left side part of the VAZ-21099 car. The driver of the VAZ-2110 car was near the car, he had no visible bodily injuries, he did not personally communicate with him. By the time he arrived, the driver of the VAZ-21099 car had been hospitalized from the scene to a medical facility. There was a passenger in the vehicle at the scene of the accident. A traffic police squad worked at the scene, at the request of one of the employees, he took part as a witness, traces of emergency braking of a VAZ-2110 car were recorded on the roadway, at least 25-30 meters long, which ended under its front wheels. Traces of lateral movement of the VAZ-21099 car after their collision were also recorded. Having finished the inspection of the scene, and the second witness got acquainted with the protocol of the inspection of the scene and the scheme, signed. After that, the VAZ-21099 car was evacuated from the scene of the accident. (Volume № l ld 92-94).

After the announcement of these testimony, witness Mikhailov M.The. confirmed their content, pointing out the existence of contradictions after a certain period of time and the presence of a large number of accidents from which he evacuates vehicles and, at the request of the traffic police, takes part in the relevant inspections.

From the expert opinion No. 1-41 dated January 28, 2013, it follows that at the initial moment of the interaction of vehicles, the longitudinal axes of the VAZ-21103 and VAZ-21099 cars were located at an angle of about 75 ° (regardless of the boundaries of the carriageway) , the initial interaction took place at a distance of about 550 millimeters from the right front extreme part of the VAZ-21103 car.

The speed of the car "VAZ-21103", state registration plate E277NV / I74, corresponding to the traces of emergency braking recorded at the scene of the accident and the location of the car after the collision, taking into account the debris, is about 129 km. This value of the speed of the car "VAZ-21103" is minimal, since the calculation does not take into account the cost of kinetic energy spent on the deformation of the body parts of vehicles in a collision.

In this traffic situation, the driver of the VAZ-21103 car while driving at the maximum speed allowed in populated areas is 60 km/h. and its application by the driver of emergency braking in the place where he actually (in the considered traffic situation) applied braking, had the technical ability to stop before the collision. Exceeding by the driver of the car "VAZ-21103" the maximum speed allowed for movement in populated areas of 60 km / h, from a technical point of view, is in a direct causal relationship
with a car collision.

From a technical point of view, the cause of this traffic accident is the actions of the driver of the car "VAZ-21103", state registration plate Е277НВ / 174, which do not meet the requirements of paragraphs 10.1 and 10.2 of the Rules of the Road (Volume No. 1 ld 62-72) .

According to expert opinion No. 1-184 dated March 12, 2013, the speed of the VAZ-21103 vehicle, state registration plate Е277НВ / 174, corresponding to the emergency braking marks recorded at the scene of the accident and the position of the vehicle after the collision, taking into account the kickback, is about 129 km /h This value of the speed of the car "VAZ-21103" is minimal, since the calculation does not take into account the cost of kinetic
energy expended on the deformation of vehicle body parts in a collision.

In this traffic situation, the driver of the VAZ-21103 car had to be guided by the requirements of paragraphs 10.1 and 10.2 of the Rules of the Road.

From a technical point of view, the cause of this traffic accident is the actions of the driver of the VAZ-21103 car, state registration plate E277NV / 174, which do not meet the requirements of paragraphs 10.1 and 10.2 of the Rules of the Road (Volume No. 1 ld 183-192) .

From the conclusions contained in the conclusion of the expert No. 1278 / 4-1 / 43 of July 31, 2013, it follows that, from a technical point of view, the state registration plate 0805XA174 was in a causal relationship with the fact of an accident, as the actions of the driver of the VAZ-21099 car that do not meet the requirements of clause 1.5, part l and 8.11 of the Rules of the Road, and the actions of the driver of the VAZ-21103 car, state registration plate E277NV / 174, that do not meet the requirements of clauses 10.1, part 1 and 10.2 of the Rules of the Road. (Volume No. 2 pp. 2-7).

By a resolution dated January 27, 2013, initiation of a criminal case on a report of a crime under article 261 part l of the Criminal Code of the Russian Federation in relation to Abdullin R.A. was denied on the grounds of article 24 part 1 paragraph 2 of the Code of Criminal Procedure of the Russian Federation. (Volume No. 1 pp. 147-148).

Witness Andreevsky M.A., told the court that on August 24, 2012, at about 23-24 hours, Kiryakov A.N. called him on his mobile phone. and said that he got into an accident on the Northern Luch highway, where he arrived some time later. At the scene of the incident, he saw two cars: "VAZ-21099", which was parked across the roadway and "VAZ-2110" belonging to A.N. According to Kiryakov A.N. he became aware that the VAZ-21099 car moving ahead was performing a U-turn maneuver on the bridge, and Kiryakov A.N. did not have time to take action to slow down, resulting in a collision. Describing Kiryakov A.N., as previously known to him, he spoke of him exclusively from the positive side.

According to the testimony of witness Vyryshev I.A., on August 24, 2012, in the evening, he was returning home in his car and saw that on the roadway "Northern Luch" there was a collision of a car moving ahead in the same direction with a car, which also, according to apparently moved ahead and carried out a turnaround maneuver. The VAZ-2110 car was moving along the leftmost lane, and the VAZ-21099 car was moving along the rightmost lane.

From the testimony of the said witness, given during the preliminary investigation and read out at the court session at the request of the public prosecutor in connection with the presence of significant contradictions, it follows that on August 24, 2012 at about 11:10 p.m. he was driving a Chevrolet Niva, state registration plate А031 НР/174, was moving along the Northern Luch highway in the direction from Khlebozavodskaya St. to the Sverdlovsk Trakt, at a speed of about 60 km/h. On the way along the indicated route, he saw that in the same direction, in front of him, a car was moving along the leftmost lane, at a speed of at least 100 km/h. Ahead of the specified car, on the right lane in the passing direction, another car was moving, which began to carry out a U-turn maneuver, while it did not change lanes from the right lane to the left. The driver of the car moving on the left lane applied emergency braking measures, and at the next moment between the indicated vehicles there was a collision between the front of the car moving in the forward direction with the left side of the car making a U-turn. The collision site was located on the left lane of the roadway, that is, on the lane of a car moving in the forward direction. From the impact, the car that was making a U-turn threw the car moving straight ahead in the direction of travel, after which it stopped, the car moving straight stopped in its lane. He stopped at the scene of the incident and saw that the collision between them was made by cars "VAZ-21099", which was turning around, and "VAZ-2110", which was moving in the forward direction. (Volume No. 1 ld 89-91).

After the announcement of these testimony, witness Vyryshev AND.A. confirmed their content with some clarifications in part that he did not inform the investigator about the speed of the VAZ-2110 car at about 100 km/h, indicating that the said car was moving away from his vehicle. In addition, he clarified that passenger Zakirov D.

Assessing the evidence presented in their entirety, the court finds the defendant's guilt in committing the described crime proven.

actions Kiryakova A.N. should be qualified under Article 264 Part 1 of the Criminal Code of the Russian Federation as a violation by a person driving a car of the rules of the road, which negligently entailed the infliction of grievous harm to human health.

The defendant did not foresee the possibility of a collision of vehicles and causing grievous bodily harm to the victim, although, deliberately violating the Rules of the Road (violating the speed limit in populated areas almost twice), with the necessary care and forethought, he should have and could have foreseen these consequences.

From the charge of Kiryakov A.N. an indication of his violation of paragraphs 1.3 and 1.5 of the Rules of the Road is subject to exclusion, since these requirements are of a declarative nature, fixing the general principles of organizing traffic in the Russian Federation, while the immediate cause of this accident was the defendant's failure to comply with the requirements of paragraphs 10.1 and 10.2 of the Rules of the Road, the provisions of which are actually special in relation to
to paragraphs 1.3 and 1.5 of the norm.

At the same time, the court finds proven the fact of violation of the speed limit by A.N. Kiryakov within the limits of the settlement. This circumstance is not disputed by the defendant himself, and is confirmed by the subjective testimony of Vyryshev I.A., given during the preliminary investigation, which the court considers necessary to form the basis of the guilty verdict. Also guilt Kiryakova A.N. confirmed by the testimony of the victim Abdullin R.A.,
witnesses Akhmetshin R.F., Mikhailov M.A., as well as the testimony of witness Frolov V.The. These testimonies are consistent with each other and are objectively confirmed by the protocol of the inspection of the scene, with the scheme attached to it and the conclusions of the examinations (autotechnical, forensic).

To the testimony of the witness Andreevsky M.A. that Kiryakov A.N. was moving at a speed of about 80 km / h, the court is critical, since his testimony in this part is refuted by the presence of objective evidence that does not cause doubt in the court, and is regarded as a desire to help a person he knows, with whom he is on good friendly terms

The position of Kiryakov A.N. on the non-admission of guilt in the crime committed by him, testifies to the freedom of choice of the defendant for defense, delegated to him by the Constitution of the Russian Federation.

Defense in support of the position of innocence Kiryakova A.N. cites paragraph 6 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 9, 2008 No. 25 “On judicial practice in cases of crimes related to violation of traffic rules and the operation of vehicles, as well as their unlawful possession without the purpose of theft”, according to who, when deciding whether the driver is guilty or not guilty of committing a traffic accident due to exceeding the speed of the vehicle, one should proceed from the requirements of clause 10.1 of the Rules, in accordance with which the driver must drive it at a speed not exceeding the established limit, taking into account the traffic intensity, features and condition of the vehicle and cargo, road and meteorological conditions, in particular visibility in the direction of travel.

Based on this, in the event of a traffic hazard that the driver is able to detect, he must take measures to reduce speed until the vehicle stops. Criminal liability under Article 264 of the Criminal Code of the Russian Federation occurs if the driver had the technical ability to avoid a traffic accident and a causal relationship has been established between his actions and the consequences.

Thus, the court concludes that the said judgment not only does not justify A.N. Kiryakov, but, on the contrary, only confirms his guilt, since, according to the evidence collected in the criminal case, it was A.N. Kiryakov. was driving at (more than twice) the speed limit in a built-up area, and had the technical ability to prevent a collision by applying the brakes, while driving at a speed limit of 60 km/h.

Consequently, between the inconsistencies of the actions of Kiryakov A.N. the requirements of paragraphs 10. and 10.2 of the Rules of the road, a traffic accident and causing Abdullin R.A. serious harm to health there is a direct causal relationship.

Judgments defense to the effect that Kiryakov A.n. did not have the technical ability to prevent a collision by applying emergency braking, do not correspond to reality. These judgments are completely refuted by the evidence collected in the criminal case, in particular by the conclusion of an autotechnical expert.

Citing as an argument of innocence Kiryakova A.N. clarifications contained in paragraph 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 9, 2008 No. 25 “On judicial practice in cases of crimes related to violation of traffic rules and the operation of vehicles, as well as their unlawful possession without the purpose of theft”, The defense unreasonably makes a judgment that the actions of the driver Abdullin R.A. became the cause of the road accident.

This judgment is subjective and is not based on the actual circumstances of the traffic accident and on the evidence collected in the criminal case, confirming the guilt of Kiryakov A.N. in the commission of a crime under Article.264 h.1 of the Criminal Code of the Russian Federation.
The actions of the driver Abdullin R.A. a proper legal assessment was given, a decision was made to refuse to initiate a criminal case.

Thus, the court finds it an established fact that the cause of this traffic accident was the actions of the driver A.N.
Kov A.N. with a speed limit of 60 km / h in the settlement and the application of braking measures in the place where he actually applied them, he had the technical ability to prevent a collision with the VAZ-21099 car, which is confirmed by the conclusions of the experts set out in the conclusions made as in during the course of the preliminary investigation, as well as during the judicial investigation. Violation by the driver Abdullin R.A. the requirements of paragraphs 8.1, 8.5 and 8.11 of the traffic rules of the Russian Federation inevitably did not entail the onset of a traffic accident, since when the driver Kiryakov A.N. of the requirements of the Rules of the Road relating to it, the very fact of a collision was excluded.

At the same time, the conclusions of the expert in conclusion K!!1278 / 4-1/43 do not refute the conclusions of the experts set out in the conclusions No. 1-41 of January 28, 2013 and No. 1-184 of March 12, 2013, since they confirm the fact of violation "VAZ-211 03" of the requirements of paragraphs 10.1, part 2 and 10.2 of the Rules of the Road.

When sentencing, the court, in accordance with Articles 6, 43 and 60 of the Criminal Code of the Russian Federation, takes into account the nature and degree of public danger of the crime, the specific circumstances of the case, the identity of the defendant, mitigating circumstances, the impact of the punishment imposed on his correction.

Kiryakov A.N. previously not convicted, committed a crime classified by criminal law in accordance with Article 15 part 2 of the Criminal Code of the Russian Federation, to the category of minor gravity through negligence, has a permanent place of residence, where it is characterized positively by neighbors in everyday life, is engaged in socially useful work, where also with the positive side is characterized by the employer, and also positively characterized by Andrievskikh M.A., is not registered in specialized medical institutions (narcological and psychiatric dispensaries).

The court considers the circumstances listed above to be mitigating.

As data characterizing the personality, the court takes into account the fact that the defendant was subjected to measures of administrative and legal influence for violating the rules of the road, including the speed limit. (Volume No. 1 pp. 142-143).

No aggravating circumstances have been established.

The sanction of Article 264, part 1 of the Criminal Code of the Russian Federation provides for the restriction of liberty, forced labor with deprivation of the right to drive a vehicle, arrest, which has not been applied to date, and imprisonment with deprivation of the right to drive a transport vehicle, as punishment.
means or without it.

By virtue of the restrictions established by Article 56, Part 1 of the Criminal Code of the Russian Federation, as amended by the Federal Law of December 7, 2011, No. 420-FZ, the court considers it possible in this case, from among the applicable ones, to impose a punishment in the form of restriction of freedom.

There are no grounds for applying the provisions of Article 64 of the Criminal Code of the Russian Federation and for the appointment of a more lenient type of punishment.

Considering the nature and degree of public danger of the crime committed, as well as data on the personality of the defendant, the court, in accordance with Art. the said right.

There are no grounds for changing the category of crime in accordance with Article 15, part 6 of the Criminal Code of the Russian Federation, as amended by the Federal Law of December 7, 2011, No. 420-FZ, to a less severe court, since Kiryakov A.N. convicted for committing a crime classified by criminal law, in accordance with Article 15, part 2 of the Criminal Code of the Russian Federation, to the category of minor gravity.

Resolving the claims of the victim Abdullin R.A. for compensation for non-pecuniary damage, in the amount of 300,000 rubles, the court finds the requirements subject to partial satisfaction.

In accordance with Article 151 of the Civil Code of the Russian Federation, if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

By virtue of Art. 1100 of the Civil Code of the Russian Federation, compensation for moral damage is carried out regardless of the fault of the tortfeasor in cases where the harm caused to the life or health of a citizen is a source of increased danger.

The court found that on the day of the traffic accident on August 24, 2013, Kiryakov A.GN. drove his car "VAZ-21103", state registration plate E277NV174, that is, he was the owner of a source of increased danger in the concept of the owner of a source of increased danger, reflected in Art. 1079 of the Civil Code of the Russian Federation, and therefore, by virtue of Article 1100 of the Civil Code of the Russian Federation, is liable for compensation for moral damage, regardless of guilt.

The victim Abdullin R.A., a young capable person leading an active lifestyle, as a result of the criminal actions of the defendant, suffered a complex of bodily injuries, which were qualified by a forensic medical expert as serious bodily harm, as a result, he spent a long time in a hospital where an abdominal operation was performed, opened the abdominal cavity with the removal of the spleen, and then was forced to be treated on an outpatient basis, having now lost the opportunity to carry out the type of labor activity he had chosen, and the consequences of an accident still affect his health.

Of course, the infliction of these bodily injuries with the loss of an internal organ by dietary nutrition, the inability to lead a former lifestyle, attend work, is accompanied by moral suffering.

In accordance with Art. 1101, paragraph 2 of the Civil Code of the Russian Federation, the amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the tortfeasor in cases where guilt is the basis for compensation for harm. When determining the amount of compensation for harm, the requirements of reasonableness of justice must be taken into account.

The nature of physical and moral suffering is assessed by the court, taking into account the actual circumstances under which the moral harm was inflicted, and the individual characteristics of the victim, as well as the degree of guilt of the tortfeasor.

Since the serious harm to the health of Abdullin R.A. caused as a result of a collision of vehicles, which are sources of increased danger, Kiryakov A.N. 1079 of the Civil Code of the Russian Federation grounds for compensation for moral damage.

Based on the actual circumstances of this incident, taking into account the nature of the moral suffering of the victim, as well as the requirements of reasonableness and justice, according to Art. 1101 of the Russian Federation, the court considers it necessary to determine monetary compensation for non-pecuniary damage to the victim R.A. Abdullin. in the amount of 150,000 rubles.

In satisfaction of the rest of the claims related to compensation for non-pecuniary damage, the court considers it necessary to refuse.

In view of the foregoing and guided by Articles 29, 296, 307-309 of the Criminal Procedure Code of the Russian Federation, the court
sentenced:

Andrey Nikolaevich KIRYAKOV found guilty of committing a crime under Art. 264 part 1 of the Criminal Code of the Russian Federation, and to sentence him in the form of restriction of freedom for a period of 2

(two) years, establishing for him restrictions on changing his place of residence, place of work and leaving the territory of Chelyabinsk without the consent of a specialized state body that oversees serving sentences of convicts in the form of restriction of freedom, and imposing a duty 2 (two) times a month appear for registration with the specified state body.

On the basis of Article 47, part 3 of the Criminal Code of the Russian Federation, to deprive Kiryakov A.N. the right to drive a vehicle for a period of 2 (two) years.

Preventive measure Kiryakovu A.N. in the form of a written undertaking not to leave and proper behavior after the entry into force of the sentence to cancel.

Satisfy the civil claim of the victim Abdullin Rudamil Aksanovich in part, recovering 150,000 (one hundred and fifty thousand) rubles from Andrey Nikolaevich Kiryakov in his favor.

The verdict can be appealed on appeal to the Judicial Collegium for Criminal Cases of the Chelyabinsk Regional Court within 10 days from the date of its announcement, and by the convicted (detained) - within the same period from the date of delivery of a copy of the verdict to him, with the filing of an appeal and presentation through the Kurchatovskiy District Court of Chelyabinsk.

If an appeal is filed, the convict has the right to petition for his participation in the consideration of the criminal case by the court of appeal, which must be indicated in the appeal.

In the event of filing an appeal or appeals by other participants in the proceedings affecting the interests of the convicted person, a petition for participation in the consideration of the criminal case by the court of appeal is filed by the convicted person within 10 days from the date of delivery of a copy of the appeal or appeals to him.

GENERALIZATION
judicial practice of consideration of criminal cases, on crimes provided for by Article 264.1 of the Criminal Code of the Russian Federation for 2015

The assistant of the justice of the peace of the judicial district within the administrative-territorial boundaries of the entire city of Yasnoy, Orenburg region, in accordance with the work plan of the judicial district for the second half of 2016, summarized the judicial practice of considering criminal cases on crimes under Art. 264.1 of the Criminal Code of the Russian Federation for 2015.
The purpose of the generalization is to study the practice of considering criminal cases on crimes under Art. 264.1 of the Criminal Code of the Russian Federation.
Federal Law No. 528-FZ of December 31, 2014 “On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Strengthening Responsibility for Offenses in the Field of Road Safety” introduced Art. 264.1, providing for responsibility for driving a car, tram or other mechanical vehicle by a person in a state of intoxication, subjected to administrative punishment for driving a vehicle in a state of intoxication or for failure to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication, or having a criminal record for committing a crime under the second, fourth or sixth part of Art. 264 of the Criminal Code of the Russian Federation or this article.
Sanction Art. 264. 1 of the Criminal Code of the Russian Federation provides for a fine in the amount of two hundred thousand to three hundred thousand rubles or in the amount of wages or other income for a period of one to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years, or mandatory works for a term of up to four hundred and eighty hours with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or forced labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
On July 31, 2015, the Supreme Court of the Russian Federation gave an explanation on the application of the provisions of this norm of the criminal law in relation to persons who have an administrative penalty imposed before July 1, 2015 for these offenses.
Attention is drawn to the fact that in order to bring to criminal liability under Art. 264.1 of the Criminal Code of the Russian Federation, it is necessary that the period during which a person is considered subjected to administrative punishment (1 year) does not expire for a previous offense, and a new offense as a basis for criminal liability must be committed after 06/30/2015.
According to the position of the Supreme Court of the Russian Federation, a repeated violation of administrative law (Article 12.8 of the Code of Administrative Offenses of the Russian Federation “Driving a vehicle while intoxicated”, Article 12.26 of the Code of Administrative Offenses of the Russian Federation “Failure to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication”) after 07/01/2015 is criminal act, since the person who committed it must be aware that he is committing a violation.
In 2015, the justice of the peace of the judicial district within the administrative-territorial boundaries of the entire city of Yasnoy, Orenburg Region, considered 7 criminal cases. During the specified period, 7 persons were sentenced to the following penalties: imprisonment - 1, fine - 1, compulsory work - 5. All convicted persons are males.
In a special order, 6 criminal cases were considered, the inquiry on them was carried out in an abbreviated form. One criminal case against a person who committed an act prohibited by criminal law was considered in a general manner.
So, when considering a criminal case against the defendant K., a circumstance mitigating the punishment of the defendant in accordance with paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, the magistrate recognized the presence of young children in the guilty, a circumstance mitigating the punishment of the defendant in accordance with Part 2 of Art. 61 of the Criminal Code of the Russian Federation, the court recognized the full admission of guilt, repentance for the crime committed and appointed K. punishment in the form of compulsory work.

When resolving the issue of sentencing in each particular case, the justice of the peace discusses the possibility of assigning an alternative type of punishment to the defendant.

When considering a criminal case against S. aggravating circumstance in accordance with paragraph. «a» h.1 Article. 63 of the Criminal Code of the Russian Federation, the magistrate recognized the presence in his actions of recidivism of crimes. At the time of the commission of the crime, S. is tried for committing intentional crimes, the convictions at the time of the commission of the crime in the manner prescribed by law were not withdrawn and not extinguished.

The nature and degree of public danger of the deed, data characterizing the identity of the defendant who is not engaged in socially useful work, the presence of recidivism in his actions, the insufficient corrective effect of the previous punishment, the commission of a new crime during the period of unexpunged and unexpunged convictions for committing intentional crimes within one year after the actual serving of the sentence, testified to the stability of S.'s unlawful views, his propensity to commit crimes, the criminal orientation of his personality and his unwillingness to embark on the path of correction. These circumstances in their totality increased the social danger of both the committed crime and the personality of the defendant and allowed the justice of the peace to conclude that the imposition of a punishment other than imprisonment would not contribute to the correction of the convict and the prevention of the commission of new crimes. The justice of the peace considered the punishment in the form of deprivation of liberty to meet the principle of fairness and proportionality of punishment. The presented materials on the state of health did not prevent them from actually serving their sentence in the form of deprivation of liberty.

When considering a criminal case against the defendant A. circumstances, mitigating punishment Magistrate, in accordance with Part. 2 Article. 61 of the Criminal Code of the Russian Federation recognized remorse for his deed, an admission of guilt. Aggravating circumstances A. in accordance with Article. 63 of the Criminal Code of the Russian Federation, the justice of the peace has not been established. When sentencing, the justice of the peace took into account the satisfactory characteristics of the place of residence of the defendant, positive at the place of his work. A. had no criminal record, committed a crime of minor gravity, was not registered with a psychiatrist and narcologist, and had no disability. Taking into account the nature and degree of public danger of the committed crime, the identity of the defendant, his admission of guilt, repentance for his deed, the commission of a minor crime, the absence of serious consequences in the case, the presence of a permanent place of work and income, his financial situation, the justice of the peace came to the conclusion that the possibility of appointing A. punishment under the sanctions of Art. 264.1 of the Criminal Code of the Russian Federation, which is not related to his isolation from society, and considered the imposition of a fine on him necessary and sufficient to achieve the goal of correcting the defendant, preventing him from committing new crimes, and considers that the specified punishment complies with the principle of justice and individualization of punishment. Grounds for the application of Art. 64 of the Criminal Code of the Russian Federation, the justice of the peace did not see.
Due to the fact that Art. 264.1 of the Criminal Code of the Russian Federation, along with the main punishment, provides for the application to the guilty person of an additional punishment in the form of deprivation of the right to engage in certain activities related to driving vehicles, the justice of the peace, in all cases, imposed an additional punishment.

So, when considering a criminal case against defendant K., the justice of the peace imposed on him an additional punishment with deprivation of the right to engage in activities related to driving vehicles for a period of 2, two years, six months.

Particular definitions (decisions) when considering criminal cases on crimes under Art. 264.1 of the Criminal Code of the Russian Federation for 2015 the justice of the peace was not carried out.

Appeal

Two judgments were appealed to the court of appeal. The sentences were left unchanged.

Conclusions:

1. When considering criminal cases of this category, the justice of the peace observes the norms of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation.
2. When imposing a penalty of liberty, a justice of the peace shall take into account mitigating and aggravating circumstances, other circumstances affecting the measure of punishment. In each case, the magistrate considered the issue of assigning an alternative form of punishment.

Assistant judge V.A. Zalbasharova

P R I G O V O R
In the name of the Russian Federation

April 07, 2014 Moscow
Golovinsky District Court of Moscow, composed of presiding judge Arnaut D.Yu.,
under Secretary Vasin V.V.,
with the participation of the public prosecutor - assistant to the Golovinsky inter-district prosecutor of the city of Moscow Kuznetsov A.A.,
defendant Bochkarev FULL NAME9,
defense counsel - lawyer Khashiev A.V.,
who submitted certificate No. and order No.,
as well as the victim Sklezneva A.S.,
Having considered the materials of the criminal case against Bochkarev FULL NAME9,<данные изъяты>accused of committing a crime under part 2 of article 264 of the Criminal Code of the Russian Federation,

INST A N O V&L:
Bochkarev D.V., being in a state of intoxication and driving a car, violated the rules of the road, which negligently entailed infliction of grievous bodily harm to a person, namely:

On September 14, 2013, at about 01:20 a.m., a more precise time was not established by the investigation, he (D.V. Bochkarev), being in a state of intoxication, driving a technically sound Opel Vectra car, registration number No., followed Sklezneva A. with passengers. FROM. and Kondratieva E.D. along the 3rd lane of the Leningradskoye Highway in Moscow in the direction from the Third Ring Road towards the Moscow Ring Road, and approached the area of ​​100, where a technically sound Honda Accord car, registration number No. driven by driver Goncharov V .Yu., as well as in the 1st lane at the edge of the carriageway, there was a parked car Opel Astra No. registration plate No. He (Bochkarev D.V.) moved to the right into lane 2.

At the same time, he (Bochkarev D.V.) did not observe the necessary precautions, was not attentive to the traffic situation and other road users; drove a car while intoxicated, endangering traffic safety; exceeded the speed established on this section of the road - 80 km / h, which he chose without taking into account his condition, as well as the nature and organization of traffic on this section of the road, and which did not provide him with the possibility of constant control over the movement of the vehicle; before changing the direction of the maneuver - to the right, he was not convinced that the maneuver he was making would be safe and would not interfere with other traffic participants; when changing lanes to the right, did not give way to a vehicle moving along the same way without changing direction; in the event of a danger to traffic that he could detect, he did not take possible measures to reduce speed up to stopping the vehicle, thereby violating the requirements of paragraphs 1.3, 1.5, 2.7, 8.1, 8.4, 10.1 and 10.2 of the Rules of the Road of the Russian Federation, knowingly putting himself in conditions under which he was not able to ensure traffic safety, as a result of which, in the 2nd lane, he collided with a Honda Accord car, registration plate No., then hit a metal fence located at the left border of the carriageway, and then hit a parked 1 lane at the edge of the carriageway car Opel Astra No. registration plate No., causing by negligence to the passenger Sklezneva A.S. according to the conclusion of the medical forensic examination No. dated December 23, 2013, bodily injuries that are related to grievous bodily harm that caused a significant permanent loss of general disability by at least one third (permanent loss of general disability over 30% (percent)) regardless of the outcome and provision (failure to provide) medical care.

Defendant Bochkarev D.V., with the consent of the victim and the public prosecutor, after consulting with the defense counsel, declared his voluntary and conscious consent to the charge against him of committing a crime belonging to the category of crimes of medium gravity, realizing the consequences of a sentence without a trial, petitioned for it.

The court, after hearing the opinion of the participants in the process, who agreed with the defendant's petition, considers it possible to pass a sentence without a trial, since Bochkarev D.The. accused of committing a crime under Part 2 of Art. 264 of the Criminal Code of the Russian Federation, the punishment for which, provided for by the Criminal Code of the Russian Federation, does not exceed four years in prison.

Having studied the materials of the case, evaluating the results of the court session with the participation of the parties, the court came to the conclusion that the defendant's accusation that he, being in a state of intoxication and driving a car, violated the rules of the road, which negligently entailed infliction of grievous bodily harm, with which Bochkarev D.The. agreed to, reasonably and is confirmed by the evidence collected in the case, which gives reason to qualify his actions under Part 2 of Art. 264 of the Criminal Code of the Russian Federation.

When appointing the defendant Bochkarev D.The. punishment, the court takes into account the provisions of h. 7 Article. 316 of the Criminal Procedure Code of the Russian Federation, the opinion of the victim, who asked not to impose a punishment associated with real deprivation of liberty, takes into account the nature and degree of public danger of the crime committed by him, which belongs to the category of crimes of medium gravity, and also takes into account other data about the identity of the defendant, who fully admitted his guilty and repented of his deed, positively characterized by the place of residence has a dependent minor child, recognizing all these circumstances mitigating punishment. Circumstances, aggravating the punishment of the defendant Bochkarevu D.The., provided for by Article. 63 of the Criminal Code of the Russian Federation, the court did not establish. Taking into account the actual circumstances of the crime committed, the court does not consider it possible to change the category of the crime to a less serious one. Taking into account the above, and considering the impact of the sentence imposed on the correction of the convict and the living conditions of his family, the court concludes that correction Bochkareva D.The. it is possible to carry out without isolation from society, applying when sentencing Art. 73 of the Criminal Code of the Russian Federation.

Civil action victim Sklezneva A.C. for the recovery from the defendant Bochkarev D.The. in respect of non-pecuniary damage 150,000 rubles and 150,000 rubles of expenses associated with the cost of treatment, the court considers subject to partial satisfaction. Regardless of the fault of the tortfeasor, compensation for moral damage is carried out if the harm to the life or health of a citizen is caused by a source of increased danger (Article 1100 of the Civil Code of the Russian Federation). By virtue of paragraph 1 of Article 151 of the Civil Code of the Russian Federation, if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on violator's duty of monetary, compensation for the said harm. The amount of non-pecuniary damage in the amount of 150 000 rubles the court considers commensurate caused by the victim Sklezneva A.C. moral and physical suffering, taking into account the nature of the injuries received by the victim, as well as the financial situation of the defendant.

In terms of the claims made by the victim for the recovery of pecuniary damage, the court recognizes the civil plaintiff Sklezneva A.C. the right to satisfy a civil claim by submitting the issue of the amount of compensation for a civil claim for consideration in civil proceedings, since according to these requirements it is necessary to make additional calculations that require the adjournment of the trial.
Based on the aforesaid and guided by Article. 316 Code of Criminal Procedure of the Russian Federation, court

P I G O V O R I L:
recognize Bochkarev FULL NAME9 guilty of committing a crime, under Part.2 Article.264 of the Criminal Code, and sentence him to imprisonment for a period of two years, with deprivation Bochkarev D.The. the right to drive vehicles for a period of three years.

On the basis of Article.73 of the Criminal Code of the Russian Federation appointed Bochkarev D.The. punishment in the form of deprivation of liberty should not be carried out, but considered conditional, with a probationary period of two years.

Oblige Bochkareva D.The. during the probationary period, do not change the place of residence without notifying the body in charge of the execution of punishment, and during the probationary period, register once a month with the bodies in charge of the execution of punishment.
A preventive measure in the form of a written undertaking not to leave and proper behavior Bochkarev D.The. cancel upon entry into force of the judgment.
The claims of the victim Sklezneva A.C. partially satisfy. To recover from Denis Vladimirovich Bochkarev in favor of the victim Sklezneva Anastasia Sergeevna in respect of non-pecuniary damage 150,000 rubles, the rest of the claims made by the victim, the court recognizes the civil plaintiff Sklezneva A.S. the right to satisfy a civil claim by submitting the issue of the amount of compensation for a civil claim for consideration in civil proceedings.
The verdict can be appealed on appeal to the Moscow City Court within 10 days from the date of its announcement, in compliance with the requirements of Article.317 Code of Criminal Procedure. If an appeal is filed, the convict has the right to petition for his participation in the consideration of the criminal case by the court of appeal.

REVIEW Based on the results of studying the practice of sentencing by the courts of the region for crimes provided for by Article 264 of the Criminal Code of the Russian Federation, for the period 2012-2014.

1. General Provisions

Ensuring road safety is one of the most important tasks facing the state. The urgency of this problem, due to the rapid growth of the country's and region's vehicle fleet, the condition of roads that are not able to pass the increased number of vehicles, increases from year to year. In this regard, the observance by drivers of the Rules of the Road, the suppression of related violations, is especially important. In accordance with the work plan of the Penza Regional Court, the practice of sentencing by the regional courts for crimes under Article 264 of the Criminal Code of the Russian Federation for the period 2012-2014 was analyzed. The purpose of this generalization is to study and analyze the emerging practice of sentencing in criminal cases of the category under study, reflecting its most characteristic moments, analyzing shortcomings in the activities of courts, making proposals for their elimination, improving law enforcement practice, analysis of appellate, cassation and supervisory practice of the regional court. The relevance of the study is also confirmed by the statistics of the Ministry of Internal Affairs of Russia for the Penza region, according to which for 12 months of 2014, 2,265 road accidents were registered on the roads of the region, in which 3,026 people were injured, 255 died. In 2013, 2,423 road traffic accidents were registered. incidents. 3,105 people were injured in road accidents, 276 people died. For 12 months of 2012, 2,239 traffic accidents were registered. 2,920 people were injured in road accidents, 295 people died. 2

2. Legal basis for sentencing

Issues related to the imposition and execution of punishment are regulated by the General Part of the Criminal Code of the Russian Federation, directly by sections 3, 4, 5 of the Criminal Code of the Russian Federation, section 14 (chapters 46, 47) of the Code of Criminal Procedure of the Russian Federation, the interpretation of which is contained in: Decree of the Plenum of the Supreme Court of the Russian Federation dated 01/11/2007 N 2 (as amended on 12/03/2013) "On the practice of imposing criminal penalties by the Courts of the Russian Federation"; Decree of the Plenum of the Supreme Court of the Russian Federation of October 29, 2009 N 20 (as amended on December 23, 2010) “On some issues of judicial practice in the appointment and execution of criminal punishment”; Decree of the Plenum of the Supreme Court of the Russian Federation of December 9, 2008 N 25 (as amended on December 23, 2010) “On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles, as well as their unlawful possession without the purpose of theft”; Decree of the Plenum of the Supreme Court of the Russian Federation of April 29, 1996 N 1 (as amended on April 16, 2013) “On the Judgment”; Decree of the Plenum of the Supreme Court of the Russian Federation of December 5, 2006 N 60 (as amended on June 5, 2012) “On the application by courts of a special procedure for the trial of criminal cases”; Decree of the Plenum of the Supreme Court of the Russian Federation of May 29, 2014 N 9 “On the practice of appointing and changing types of correctional institutions by courts”; Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 2011 N 21 (as amended on February 9, 2012) "On the practice of application by courts of legislation on the execution of a sentence."

3. Statistics

4. The practice of sentencing for crimes under Article 264 of the Criminal Code of the Russian Federation

Sentencing is one of the most important stages in the application of the criminal law, a key stage in the administration of justice in criminal cases and one of the main institutions of criminal law.

In accordance with the rules provided for by Articles of Chapter 10 of the Criminal Code of the Russian Federation, a person found guilty of committing a crime is subject to a guilty verdict of the court as a measure of criminal law in the form of a criminal punishment of a certain type and amount. Article 60 of the Criminal Code of the Russian Federation contains the general principles of sentencing, which are a set of basic requirements that the court should be guided by when determining the type and amount of punishment. The general rules for sentencing should be applied in each specific case when sentencing the guilty. Article 6 of the Criminal Code of the Russian Federation enshrines the principle of justice, according to which punishment and other measures of a criminal law nature must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. The punishment is imposed on the basis of the nature and degree of social danger of the crime committed, the identity of the perpetrator, the totality of circumstances mitigating and aggravating the punishment, and also taking into account the influence of the punishment imposed on the correction of the convicted person and on the living conditions of his family.

According to the clarifications contained in the resolution of the Plenum of the Supreme Court of the Russian Federation “On Certain Issues of Judicial Practice in the Imposition and Execution of Criminal Punishment”, the nature of the public danger of a crime is determined in accordance with the law, taking into account the object of the offense, the form of guilt and the category of crime. The degree of public danger of the crime is determined depending on the specific circumstances of the offense, in particular, on the amount of harm and the severity of the consequences, the degree of implementation of the criminal intent, the method of committing the crime, the role of the defendant in the crime committed in complicity, the presence in the deed of circumstances that entail a more severe punishment in in accordance with the sanctions of the articles of the Special Part of the Criminal Code of the Russian Federation. Information about the identity of the perpetrator includes both data that have legal significance depending on the composition of the crime committed or the specifics of criminal liability and punishment established by law for certain categories of persons, as well as other information characterizing the identity of the defendant that the court has at its disposal when passing the sentence. These may, in particular, include data on the family and property status of the defendant, his state of health, behavior at home, whether he has dependent minor children, other disabled persons (wife, parents, close relatives).

An analysis of court decisions showed that, as a rule, when sentencing persons who committed crimes under Article 264 of the Criminal Code of the Russian Federation, the courts took into account the general rules for sentencing.

For example, by the verdict of the Zheleznodorozhny District Court of Penza dated December 29, 2014 A.A.A. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to 1 year of restriction of freedom, with the establishment of restrictions and obligations. When assigning the type and amount of punishment, the court took into account that A.A.A. brought to criminal responsibility for the first time, committed a crime of minor gravity, through negligence, is not registered with a psychiatrist and narcologist, is characterized satisfactorily by the district police officer at the place of residence, positively characterized at the place of work, the victim did not insist on severe punishment. Circumstances mitigating punishment A.A.A., the court found remorse for the deed, confession of guilt, the presence of a dependent minor child, measures taken to partially repay the non-pecuniary damage to the victim. No aggravating circumstances were found by the court. Subject to the provisions of h. 1 Article. 56 of the Criminal Code of the Russian Federation the court appointed A.A.A. restriction of freedom - as the mildest and only possible type of punishment for imposing, provided for by the sanction of Part 1 of Art. 264 of the Criminal Code of the Russian Federation. When determining the amount of punishment, the court took into account the provisions of Part 5 of Art. 62 of the Criminal Code of the Russian Federation. At the same time, taking into account the provisions of Art. 47 of the Criminal Code of the Russian Federation, positive characterizing the data in relation to the defendant, his position as a person who is the only breadwinner in the family, since his wife is on parental leave, the court found it possible not to deprive A.A.A. the right to drive a vehicle, since the deprivation of this right can significantly affect the living conditions of his family, since his earnings are directly related to driving vehicles, and being a driver is his only source of income. The court considered that the punishment in the form of restriction of freedom is fair, sufficient and proportionate to the deed, and will contribute to the achievement of the goals of punishment and the correction of the defendant.

However, the study found that not all courts impose punishment, taking into account the above requirements of the law. In particular, there have been cases of unfair sentences passed by the courts, both due to excessive leniency and severity of punishment. These facts entailed a change in the sentences of the district courts.

For example, the appeal ruling of the Judicial Collegium for Criminal Cases of the Penza Regional Court of April 17, 2013 changed the sentence of the Kondolsky District Court of the Penza Region of January 31, 2013, by which S.S.A. convicted under Part 4 of Art. 264 of the Criminal Code of the Russian Federation to 1 year 6 months of imprisonment with serving a sentence in a colony-settlement, with deprivation of the right to drive a vehicle for 1 year 3 months. The Judicial Board considered the verdict to be changed in the direction of worsening the situation of the convicted person due to the unfairness of the verdict due to its excessive leniency. In support of its decision, the panel of judges indicated that the court, when sentencing C.C.A. the requirements of Article 6 of the Criminal Code of the Russian Federation are not fully taken into account, since the sentence imposed on the convict in the form of deprivation of liberty, as well as the additional punishment in the form of deprivation of the right to drive a vehicle, do not correspond to his personality, the nature and degree of public danger of the crime committed, the circumstances of its commission. The verdict of the district court changed, C.C.A. sentenced under Part 4 of Art. 264 of the Criminal Code of the Russian Federation in the form of imprisonment for a period of 3 years with deprivation of the right to drive a vehicle for a period of 3 years. The cassation ruling of the Judicial Collegium for Criminal Cases of the Penza Regional Court of October 17, 2012 changed the sentence of the Penza District Court of the Penza Region of August 15, 2012, by which M.S.The. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to 1 year of restriction of freedom with the establishment of restrictions and obligations. The Judicial Board found the sentence subject to change due to its unfairness due to excessive severity. In support of its conclusions, the court of cassation pointed out that when considering the criminal case, the court did not establish data on the identity of the convict, his marital status: M.C.The. married, has dependent two young daughters, which is confirmed by documents attached to the materials of the criminal case by the court of cassation at the request of the convict, and on the basis of paragraph “d” part 1 of Art. 61 of the Criminal Code of the Russian Federation is a mitigating circumstance. The punishment imposed on the convict does not fully correspond to his personality, was appointed without taking into account the extenuating circumstances and the impact on the living conditions of his family. The verdict of the district court was changed, the punishment under Part 1 of Art. 264 of the Criminal Code of the Russian Federation reduced to 11 months of restriction of freedom.

Article 60 of the Criminal Code of the Russian Federation establishes the general principles of sentencing, including the need to take into account the existing mitigating and aggravating circumstances in the case. However, the courts do not always take into account the requirements of the General Part of the Criminal Code of the Russian Federation, for example, in situations where the presence of mitigating circumstances and the absence of aggravating circumstances are established in the case, the maximum punishment provided for by the sanction of the relevant article of the Criminal Code of the Russian Federation cannot be imposed on the guilty person. If in a criminal case, when imposing a punishment on a guilty person, the court establishes one or more circumstances mitigating the punishment, but imposes the maximum punishment provided for this crime, then such a sentence will be clearly unfair.

For example, the cassation ruling of the Judicial Collegium for Criminal Cases of the Penza Regional Court dated October 17, 2012 changed the sentence of the Leninsky District Court of Penza dated August 27, 2012, by which Zh.V.A. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to 2 years of restriction of freedom with deprivation of the right to drive a vehicle for 3 years. The verdict was delivered in a special order of the trial. The panel of judges found this court verdict subject to change in terms of the sentence imposed. So, appointing Zh.V.A. punishment, the court pointed to the absence of aggravating circumstances and the presence of mitigating circumstances, however, the punishment, both primary and additional, imposed the maximum, provided for in the consideration of this case in a special manner, that is, in fact, imposed a punishment without taking into account mitigating circumstances. Under such circumstances, the verdict of the district court was changed, the size of the main punishment was reduced to 1 year 10 months of restriction of freedom, additional - up to 2 years 6 months of deprivation of the right to drive a vehicle.

Part 1 of Article 61 of the Criminal Code of the Russian Federation contains circumstances mitigating punishment. This list is not exhaustive, so the court has the right to recognize any other circumstances as mitigating, justifying the decision. An analysis of judicial practice showed that, as a rule, mitigating circumstances were recognized as: full admission of guilt in a crime committed, active contribution to the disclosure and investigation of a crime, remorse for what they had done, compensation for damage to the victim, the presence of a disease, committing a crime and bringing to criminal responsibility for the first time, positive characteristics.

According to Articles 299 and 307 of the Criminal Procedure Code of the Russian Federation, when passing a sentence, the court is obliged to resolve the issue of the presence or absence of circumstances aggravating and mitigating the punishment of the defendant. Based on these requirements of the criminal procedure law, it is necessary to indicate in the verdict what circumstances affecting the degree and nature of the defendant's responsibility were proved during the criminal case, as well as to motivate the presence of circumstances mitigating or aggravating the punishment.

When sentencing in criminal cases of this category, there were cases when these provisions of the law were not fully complied with when passing the sentence.

Thus, by the appeal decision of the Judicial Collegium for Criminal Cases of the Penza Regional Court of April 16, 2014, the sentence of the Mokshansky District Court of the Penza Region of January 31, 2013, which convicted P.V.A. according to part 6 of Art. 264 of the Criminal Code of the Russian Federation to punishment in the form of imprisonment for 8 years with deprivation of the right to drive a vehicle for 3 years, to be served in a colony-settlement. The reason for the annulment of the verdict was the fact that the lawyer acted against the will of the client, did not fulfill his duties related to representing P.V.A.’s interests in the court session, thereby depriving him of the right to an effective defense and bringing his position to the court on the criminal case under consideration. case, that is, a violation of the right to defense guaranteed by the Constitution of the Russian Federation. In addition, the higher court pointed out that in the descriptive and motivational part of the verdict, as mitigating circumstances, the judge found the guilty person to apologize, take measures to make amends for the material damage and compensation for moral damage. However, citing then the provisions of paragraph “k” of Part 2 of Art. 61 of the Criminal Code of the Russian Federation, the court made an unmotivated conclusion that there were no mitigating circumstances, without giving any justification for this conclusion, which is unacceptable, since it directly affects the sentencing. The verdict of the district court was canceled, the criminal case was sent for a new trial.

Among the mitigating circumstances provided for in Part 1 of Art. 61 of the Criminal Code of the Russian Federation, the circumstances established by paragraphs “i” and “k” are of particular importance, since the criminal law connects the application of the provisions of Part 1 of Art. 62 of the Criminal Code of the Russian Federation on imposing a sentence of no more than two-thirds of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation. Clause "and" part 1 of Art. 61 of the Criminal Code of the Russian Federation, as one of the extenuating circumstances, provides for surrender. Within the meaning of the law, surrender as a circumstance mitigating punishment is taken into account in cases where a person voluntarily informed law enforcement agencies orally or in writing about a crime committed by him, when these agencies did not have information about his involvement in the commission of a crime. When deciding whether there was such a mitigating circumstance as surrender, the courts must check whether the reporting of a crime was voluntary and whether this was due to the fact that the person was detained as a suspect and confirmed his participation in the commission crimes. At the same time, it should be borne in mind that a message about a crime may be contained in the explanations given by a person about the crime, in the report of an employee of the investigating body with information that a particular person reported a crime, etc. However, in the practice of considering criminal cases of this category, there was a case when the court did not pay sufficient attention to the study of information indicating how the preliminary investigation bodies became aware of the crime committed, which led to an unfair sentence.

So, by the appeal decision of the Judicial Collegium for Criminal Cases of the Penza Regional Court of December 24, 2014, the sentence of the Shemysheysky District Court of the Penza Region of September 5, 2014 was changed, by which I.A.The. convicted under Part 2 of Art. 264 of the Criminal Code of the Russian Federation. The Tribunal stated in its ruling that: As evidence of the guilt of the convict, the court correctly took into account the testimony of witnesses who are police officers, whom AND.A.The. gave explanations about the accident, affirmatively stating that he was driving a car at the time of the incident, while these circumstances were not known to the police officers. According to the panel of judges, the trial court unreasonably did not recognize this statement AND.A.The. about the traffic accident committed by him with a confession and did not take it into account as a mitigating circumstance. Under such circumstances, the verdict of the district court was changed, the punishment for the convict was reduced and assigned with the application of Part 1 of Art. 62 of the Criminal Code of the Russian Federation.

Clause “k” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, as one of the extenuating circumstances, provides for voluntary compensation for property damage and non-pecuniary damage. The courts should take into account that sentencing according to the rules of Part 1 of Art. 62 of the Criminal Code of the Russian Federation requires full compensation for both property and moral damage caused as a result of the crime committed. In the practice of considering cases of this category, a case was noted when the court incorrectly applied the indicated norms of the law when imposing a sentence.

Thus, by the appeal decision of the Judicial Collegium for Criminal Cases of the Penza Regional Court of September 24, 2014, the verdict of the Shemysheysky District Court of the Penza Region of August 5, 2014 was changed, by which A.R.Sh. convicted under Part 3 of Art. 264 of the Criminal Code of the Russian Federation, with the application of Part 1 of Art. 62 of the Criminal Code of the Russian Federation, to 3 years 3 months in prison in a colony-settlement with deprivation of the right to drive vehicles for a period of 3 years. The Judicial Board considered the court's verdict subject to change, since the court's conclusion on the application of A.R.Sh. provisions h. 1 Article. 62 of the Criminal Code of the Russian Federation is not based on the law. During the trial, it was established that the convict compensated partially for non-pecuniary damage, in connection with which, the provisions of Part 1 of Art. 62 of the Criminal Code of the Russian Federation applied by the court unreasonably. The panel of judges excluded from the verdict of the district court the indication on the appointment of A.R.Sh. punishment subject to the provisions of h. 1 Article. 62 of the Criminal Code of the Russian Federation. By virtue of h. 1 Article. 62 of the Criminal Code of the Russian Federation in the presence of mitigating circumstances, provided for in paragraphs "and" and (or) "k" h. 1 Article. 61 of the Criminal Code of the Russian Federation, and in the absence of aggravating circumstances, the term of punishment cannot exceed two thirds of the maximum term of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation.

In accordance with Part 5 of Art. 62 of the Criminal Code of the Russian Federation and part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation, the term or amount of punishment imposed on a person whose criminal case has been considered in a special order cannot exceed two thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed. However, courts do not always comply with this requirement of the law.

So, by the appeal decision of the Judicial Collegium for Criminal Cases of the Penza Regional Court of November 27, 2013, the sentence of the Penza District Court of the Penza Region of October 3, 2013 was changed, by which K.P.V. convicted under Part 3 of Art. 264 of the Criminal Code of the Russian Federation to 2 years 6 months in prison with deprivation of the right to drive a vehicle for 3 years, on the basis of Art. 73 of the Criminal Code appointed K.P.V. sentence in the form of imprisonment decided to be considered conditional with a probationary period of 4 years. This criminal case was considered in a special order. Motivating its decision, the Court of Appeal indicated the following. When sentencing K.P.V., the court took into account the full confession of guilt, repentance for the deed, active contribution to the disclosure and investigation of the crime, the presence of a dependent minor child, the state of health of K.P.V., the absence of aggravating circumstances, and sentenced him using h. 5 Article. 62 of the Criminal Code of the Russian Federation and part 7 of Art. 316 Code of Criminal Procedure in the form of 2 years 6 months in prison with deprivation of the right to drive a vehicle for 3 years, but at the same time, the court when sentencing K.P.The. not taken into account the provisions of h. 1 Article. 62 of the Criminal Code of the Russian Federation, according to which, in the presence of extenuating circumstances, provided for by paragraph.n. "and" and (or) "to" part 1 of Art. 61 of the Criminal Code of the Russian Federation, and in the absence of aggravating circumstances, the term or amount of punishment may not exceed two-thirds of the maximum term or amount of the most severe type of punishment. Thus it is punishment subject to the provisions of h. 1 and h. 5 Article. 62 of the Criminal Code of the Russian Federation, part 7 of Art. 316 of the Code of Criminal Procedure of the Russian Federation in the form of imprisonment should be no more than 2 years and 2 months in prison. The verdict of the district court changed, punishment K.P.The. appointed with the use of hours. 1 and hours. 5 Article. 62 of the Criminal Code of the Russian Federation in the form of 2 years 1 month in prison.

In accordance with Art. 64 of the Criminal Code of the Russian Federation, in the presence of exceptional circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the crime, as well as with active assistance in solving this crime, punishment may be imposed below the lower limit provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation, or the court may impose a milder type of punishment than provided for by this article, or not apply an additional type of punishment provided for as mandatory. It has been summarized that, according to Art. 264 of the Criminal Code of the Russian Federation in most cases of sentencing using Art. 64 of the Criminal Code of the Russian Federation, the courts did not apply an additional type of punishment in the form of deprivation of the right to drive a vehicle. This circumstance is due to the fact that work as a driver was the only source of income for the support of the family of the defendant.

For example, by the verdict of the Kuznetsk District Court of the Penza Region dated October 7, 2013, E.V.A. convicted under Part 3 of Art. 264 of the Criminal Code of the Russian Federation, with the application of Part 1 and Part 5 of Art. 62, art. 64 of the Criminal Code of the Russian Federation to 2 years of imprisonment conditionally with a probationary period of 1 year 6 months. When sentencing the defendant E.V.A., the court took into account the nature and degree of social danger of the crime committed, the identity of the defendant, the presence of mitigating and the absence of aggravating circumstances in the case, the impact of the sentence imposed on the correction of the convict and on the living conditions of his family. EVE. committed a negligent crime of moderate gravity, no previous convictions, not registered with a narcologist and psychiatrist, at the place of residence according to the report of the UUP OMVD of Russia for the Penza region, positively characterized by the residents of the house and at the place of work, was not brought to administrative responsibility. Circumstances mitigating the punishment of E.V.A., according to paragraph “k” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, the court recognized voluntary compensation for property damage caused as a result of the crime. In accordance with Part 2 of Art. 61 of the Criminal Code of the Russian Federation, the court took into account as circumstances mitigating punishment, the full recognition of E.V.A. his guilt, his remorse for what he had done. In addition, the court took into account the opinion of the victim, who did not insist on severe punishment, which was also attributed by the court to the circumstances mitigating the punishment of the defendant. Aggravated E.V.A. the circumstances of the case have not been established. In connection with the presence of E.V.A. circumstance mitigating punishment, provided for n. «k» h.1 Article.61 of the Criminal Code and the absence of aggravating circumstances, the court sentenced him to punishment using the rules h. 1 Article. 62 of the Criminal Code of the Russian Federation. When sentencing E.The.A. the court took into account the requirements h. 5 Article. 62 of the Criminal Code of the Russian Federation. Taking into account the circumstances of the case, the personality of the defendant, his property status and the living conditions of his family, the opinion of the victim, who does not insist on severe punishment, the court considered that the achievement of the goals of punishment is possible with the appointment of E.V.A. punishment not associated with real deprivation of liberty, but in the conditions of exercising control over it. Considering that E.V.A. fully admitted his guilt, repented of his deed, positively characterized by place of residence and work, brought to criminal responsibility for the first time, took measures to compensate for damage, committed a crime while sober, in addition, driving a vehicle is a profession for the defendant and the only source of income, and, recognizing this combination of circumstances, mitigating punishment, exceptional, given the absence of circumstances, aggravating punishment, the court considered it possible to apply to the defendant the provision of Article. 64 of the Criminal Code of the Russian Federation and not to impose an additional type of punishment deprivation of the right to drive a vehicle, provided for as mandatory under Part 3 of Art. 264 of the Criminal Code of the Russian Federation.

In accordance with Art. 64 of the Criminal Code of the Russian Federation, when imposing a more lenient punishment than provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation for a crime committed, the court, substantiating its decision in the descriptive and motivational part of the sentence, must indicate which particular mitigating circumstances or their combination are recognized as exceptional and significantly reducing the degree public danger of crime. Within the meaning of the law, if mitigating circumstances are taken into account by the court when sentencing according to the rules of Art. 62 of the Criminal Code of the Russian Federation, they in themselves cannot be re-counted when applying Art. 64 of the Criminal Code of the Russian Federation. An analysis of the verdicts of the district courts of the region showed that in all cases of sentencing with the application of Art. 64 of the Criminal Code of the Russian Federation, the courts justified their decision with indication of specific mitigating circumstances, which were recognized as exceptional and significantly reducing the degree of public danger of the crime. The punishment imposed in the manner prescribed by Art. 64 of the Criminal Code of the Russian Federation, cannot be less than the lower limit determined for the relevant types of punishments in the articles of the General Part of the Criminal Code of the Russian Federation. For example, a term of imprisonment determined for a convict in accordance with Art. 56 of the Criminal Code of the Russian Federation should not be less than two months, the amount of the fine, calculated in monetary terms, by virtue of Art. 46 of the Criminal Code of the Russian Federation cannot be less than 5,000 rubles.

Thus, by the verdict of the Pervomaisky District Court of the city of Penza dated August 12, 2013 A.M.L. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to a fine of 5,000 rubles. The court took into account the financial situation of the defendant and her family, as well as the fact that she was brought to justice for the first time for committing a crime of minor gravity and in accordance with the requirements of Art. The court took these circumstances to the exceptional and found it necessary to sentence the defendant A.M.L. with the application of Art. 64 of the Criminal Code, assigning a milder form of punishment than provided for h. 1 Article. 264 of the Criminal Code of the Russian Federation, in the form of a fine in the minimum amount. For the same reasons, the court did not find grounds for applying additional punishment in the form of deprivation of the right to drive vehicles.

When imposing punishment, the courts should keep in mind that Art. 64 of the Criminal Code of the Russian Federation does not provide for the possibility of determining a milder type of regime of a correctional institution than that established by Art. 58 of the Criminal Code of the Russian Federation for serving a sentence of imprisonment. In accordance with Art. 73 of the Criminal Code of the Russian Federation, if, after imposing correctional labor or imprisonment for up to eight years, the court comes to the conclusion that it is possible to correct the convict without actually serving the sentence, it decides to consider the imposed sentence conditional. When imposing a suspended sentence, the court takes into account the nature and degree of public danger of the crime committed, the identity of the perpetrator, including mitigating and aggravating circumstances. Thus, when imposing a sentence of conditional imprisonment, the courts took into account the full recognition of the guilt of the defendant, repentance for the deed, compensation for material damage and moral damage, the presence of dependent young children, positive characteristics, the identity of the defendant, his attitude to the deed and behavior after the crime. as well as the opinion of the victims.

For example, by the verdict of the Luninsky District Court of the Penza Region dated December 13, 2012, P.E.B. convicted under Part 2 of Art. 264 of the Criminal Code of the Russian Federation with the application of Part 1 and Part 5 of Art. 62 of the Criminal Code of the Russian Federation to 1 year 6 months in prison, with deprivation of the right to drive vehicles for a period of 3 years. Based on Art. 73 of the Criminal Code of the Russian Federation, the main punishment in the form of deprivation of liberty is decided to be considered suspended. The court at the appointment of P.E.B. the type and amount of punishment took into account the nature and degree of public danger of the crime committed by him, data about his personality, mitigating circumstances. defendant P.E.B. committed a crime of moderate gravity, at the place of residence is characterized positively, there were no complaints, but he was brought to administrative responsibility. As mitigating circumstances, the court recognized the full admission of guilt and remorse for the deed, compensation for material damage and non-pecuniary damage. No aggravating circumstances have been established. Taking into account the nature of the crime, the specific circumstances of the case, information about the personality of P.E.B., his positive characteristics, marital status, repentance, the absence of aggravating circumstances and the presence of extenuating circumstances, the opinion of the legal representative of the victim, who asks him not to punish severely, also being the nature of the violations, the court found it necessary to appoint P.E.B. punishment without isolating him from society, in the form of a suspended sentence, with the imposition of duties on him and with the deprivation of the right to drive vehicles, with the application of Art. 62 part 1 and part 5 of the Criminal Code of the Russian Federation.

In accordance with Part 4 of Art. 73 of the Criminal Code of the Russian Federation, additional punishments may be imposed on probation, but only the main punishment can be recognized as conditional. Additional punishments are actually carried out, which should be indicated in the operative part of the sentence. However, there are cases when the courts recognize both the main and additional punishment as conditional.

For example, the cassation ruling of the Judicial Collegium for Criminal Cases of the Penza Regional Court of April 11, 2012 annulled the sentence of the Bessonovsky District Court of the Penza Region of December 14, 2012, by which D.A.P. convicted under Part 3 of Art. 264 of the Criminal Code of the Russian Federation to 3 years in prison with deprivation of the right to drive a vehicle for 3 years. Based on Art. 73 of the Criminal Code of the Russian Federation (as indicated in the verdict), it was decided to consider the imposed sentence as suspended with a probationary period of 1 year 6 months. The Judicial Board indicated that the court, recognizing D.A.P. guilty of committing a crime, under Part. 3 Article. 264 of the Criminal Code of the Russian Federation, having sentenced him to imprisonment with deprivation of the right to drive a vehicle, unreasonably applied Art. 73 of the Criminal Code of the Russian Federation and to an additional type of punishment. Under such circumstances, the verdict was declared illegal and canceled, the criminal case was sent for a new trial.

The study found that when sentencing in the form of real imprisonment for crimes under Art. 264 of the Criminal Code of the Russian Federation, the courts proceeded from the general principles of sentencing set out in Art. 60 of the Criminal Code of the Russian Federation. When sentencing, the nature and degree of social danger of the crime, the identity of the perpetrator, circumstances mitigating punishment, as well as the impact of the sentence imposed on the correction of the convicted person and the living conditions of his family were taken into account. Punishment in the form of real imprisonment, from among those provided for the commission of crimes under Art. 264 of the Criminal Code of the Russian Federation, was appointed if a less severe type of punishment could not ensure the achievement of the goals of punishment. Thus, in the presence of alternative types of punishment in the sanction of Article 264 of the Criminal Code of the Russian Federation, real imprisonment was assigned to persons who committed a gross violation of traffic rules, drove a car while intoxicated, committed earlier administrative offenses in the field of traffic, did not take measures to compensate for harm, disappeared from the scene of the accident, were deprived of the right to drive a vehicle.

For example, by the verdict of the Shemysheysky District Court of the Penza Region dated December 11, 2014 A.D.V. convicted under Part 2 of Art. 264 of the Criminal Code of the Russian Federation with the application of Art. 62 of the Criminal Code of the Russian Federation to 1 year 6 months in prison with deprivation of the right to drive a vehicle for 3 years to be served in a colony-settlement. The court appointed A.D.The. punishment associated with isolation from society, on the grounds that at the time of the crime he was driving a car while in a high degree of intoxication, he had previously been repeatedly brought to administrative responsibility for violating the Rules of the Road, including for exceeding the established speed. The court considered that the imposition of other types of punishments, except for deprivation of liberty, would not achieve the purpose of punishment - the correction of the convicted person and the prevention of his committing new crimes. The imposition of punishment in the form of real deprivation of liberty in the sentences of the courts is motivated, the judgments contain judgments, according to which the court came to the conclusion that it is impossible to correct these persons without isolation from society.

A feature of the sanction, Part 1, Art. 264 of the Criminal Code of the Russian Federation is that it does not provide for the possibility of imposing an additional punishment in the form of deprivation of the right to drive a vehicle along with the main punishment in the form of restriction of freedom. However, in accordance with Part 3 of Art. 47 of the Criminal Code of the Russian Federation, deprivation of the right to engage in certain activities may be imposed as an additional type of punishment and in cases where it is not provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation as a punishment for the corresponding crime, if, taking into account the nature and degree of public danger of the crime committed and the personality of the guilty person, the court recognizes that it is impossible for him to retain the right to occupy certain positions or engage in certain activities. Therefore, when imposing a punishment in the form of restriction of freedom along with an additional punishment in the form of deprivation of the right to drive a vehicle, the courts should refer in the sentence to the provisions of Part 3 of Art. 47 of the Criminal Code of the Russian Federation, motivating his decision.

Thus, by the verdict of the Belinsky District Court of the Penza Region dated December 24, 2014, M.D.V. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation with the application of Part 1 of Art. 62 of the Criminal Code of the Russian Federation and part 5 of Art. 62 of the Criminal Code of the Russian Federation to 1 year of restriction of freedom. Based on part 3 of Art. 47 of the Criminal Code of the Russian Federation M.D.V. deprived of the right to drive vehicles for a period of 1 year. In determining the type and amount of punishment for the defendant, the court took into account the nature and degree of social danger of the crime committed, which is classified as a crime of minor gravity; the identity of the defendant M.D.V., characterized positively, the state of health of close relatives of the defendant, the circumstances of the commission of the crime, the circumstances mitigating and aggravating the punishment of the defendant, as well as the impact of the imposed punishment on the correction of the convict. Circumstances mitigating the punishment of the defendant M.D.V., the court recognized: sincere remorse for what he had done, his admission of his guilt, active contribution to the disclosure and investigation of the crime. Circumstances aggravating the punishment of the defendant M.D.V. were not established in the case. Taking into account the foregoing, as well as the opinion of the public prosecutor, the victim, who asked not to severely punish the defendant, the defense side about the punishment, the court considered it necessary to appoint the defendant M.D.V the only possible punishment at the moment under Part 1 of Art. 264 of the Criminal Code of the Russian Federation in the form of restriction of freedom within the sanction of this article. Taking into account the fact that M.D.V., while driving a motor vehicle at the time of the traffic accident, grossly violated the traffic rules of the Russian Federation, and also taking into account the nature and degree of public danger committed by M.D.The. crimes, the identity of the perpetrator, and the fact that he was repeatedly brought to administrative responsibility for offenses in the field of traffic, the court found it impossible to save for M.D.The. the right to drive vehicles, and found it necessary to deprive him of this right for a certain period, in accordance with Part. 3 Article. 47 of the Criminal Code of the Russian Federation, since the imposition of additional punishment will contribute to the achievement of the goals of punishment - the correction of the convict and the prevention of his commission of new crimes.

The verdict of the Kamensky City Court of the Penza Region dated December 8, 2014 V.V.A. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation with the application of Part 1 and Part 5 of Art. 62 of the Criminal Code of the Russian Federation to 1 year of restriction of liberty, with deprivation, in accordance with Part. 3 Article. 47 of the Criminal Code of the Russian Federation, the right to drive a vehicle for a period of 1 year. In the appeal submission, the Deputy Prosecutor of the Penza Region, without contesting the proof of guilt and the correctness of the legal qualification of the deed by V.V.A., raises the issue of changing the sentence due to the incorrect application of the criminal law by the court when imposing punishment, expressed in violation of the requirements of the General Part of the Criminal Code of the Russian Federation, pointing out, that based on the provisions of h. 3 Article. 47 of the Criminal Code when appointing V.V.A. according to part 1 of Art. 264 of the Criminal Code of the Russian Federation, the main punishment in the form of restriction of freedom, deprivation of the right to drive a vehicle could not be determined as an additional punishment, since the sanction of this article already provides for deprivation of the right to drive a vehicle as an additional punishment to imprisonment. However, the Judicial Collegium for Criminal Cases of the Penza Regional Court did not find grounds for excluding additional punishment from the verdict and did not agree with the arguments of the appeal submission on the prohibition of the application of the norms of Part 3 of Art. 47 of the Criminal Code of the Russian Federation due to the presence in the sanctions of Part 1 of Art. 264 of the Criminal Code of the Russian Federation additional punishment in the form of deprivation of the right to drive a vehicle in relation to other types of basic punishments, since the criminal law does not contain such a ban. By an appeal ruling of February 11, 2015, the verdict of the district court was left unchanged, and the appeal submission was not satisfied.

The study found that in practice, when imposing additional punishment under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, courts make mistakes that lead to a change in sentences.

For example, by a decision of the Presidium of the Penza Regional Court of January 15, 2014, the sentence of the Bessonovsky District Court of October 31, 2014 in respect of S.M.A., convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to 1 year of restriction of freedom with deprivation of the right to drive vehicles for a period of 1 year. Changing the verdict of the district court, the court of cassation indicated that the sanction of Part 1 of Art. 264 of the Criminal Code of the Russian Federation does not provide for the possibility of imposing an additional punishment in the form of deprivation of the right to drive a vehicle along with the main punishment in the form of restriction of freedom, and the court, by imposing an additional punishment on the convict in the form of deprivation of the right to drive a vehicle without reference to Part 3 of Art. 47 of the Criminal Code of the Russian Federation and without motivating his decision, violated the requirements of the law. Under such circumstances, the presidium excluded from the verdict an indication of the appointment of S.M.A. additional punishment in the form of deprivation of the right to drive vehicles for a period of 1 year.

The generalization established that the courts did not impose an additional punishment in the form of deprivation of the right to drive vehicles, when the profession of a driver was the only source of income for the defendant and his family, the defendant had not previously been held administratively liable for violating the traffic rules of the Russian Federation, voluntarily compensated for material damage and non-pecuniary damage, caused by the crime, committed the crime for the first time.

When deciding a guilty verdict for a violation by a person of the rules of the road, which entailed the consequences indicated in Part.h. 2 - 6 art. 264 of the Criminal Code of the Russian Federation, the appointment of an additional punishment to the guilty person in the form of deprivation of the right to drive a vehicle is mandatory. However, in judicial practice there were cases when, for these crimes, the courts did not impose additional punishment in the form of deprivation of the right to drive a vehicle. Such decisions of the courts were due to the fact that the work of a driver for the defendants was the only professional activity and the only source of income for supporting the family. Given this circumstance, as well as the identity of the perpetrator and the presence of extenuating circumstances, the courts on the basis of Art. 64 of the Criminal Code of the Russian Federation did not apply additional punishment to the defendants in the form of deprivation of the right to drive a vehicle.

In the course of the trial, the court must determine whether the person was deprived of the right to drive a vehicle in connection with this traffic accident in accordance with Art. 12.8 of the Code of Administrative Offenses of the Russian Federation for the very fact of driving while intoxicated. If for these actions a person was deprived of the right to drive a vehicle, the term of deprivation of the right to drive a vehicle served by him shall be counted in the period of additional punishment imposed in a criminal case in the form of deprivation of the right to drive a vehicle, with the grounds for the decision being given in the verdict.

Due to the fact that Art. 264 of the Criminal Code of the Russian Federation provides for the possibility of applying to the guilty additional punishment in the form of deprivation of the right to drive a vehicle, the courts should keep in mind that, based on Art. 47 of the Criminal Code of the Russian Federation, the specified additional punishment can be imposed both on a person who, in the manner prescribed by law, was issued an appropriate certificate, and on a person who drove a vehicle without an appropriate permit.

As a result of the analysis of the court decisions of the district courts, it was found that, in most cases, the courts impose an additional punishment in the form of deprivation of the right to drive a vehicle to the guilty who have committed crimes under Art. 264 of the Criminal Code of the Russian Federation, without having such a right. In connection with the changes in Part 1 of Art. 56 of the Criminal Code of the Russian Federation, introduced by the Federal Law of December 7, 2011 No. 420-FZ, a sentence of deprivation of liberty may be imposed on a convicted person who has committed a crime of minor gravity for the first time, only if there are aggravating circumstances provided for in Article 63 of the Criminal Code of the Russian Federation, with the exception of crimes provided for in part the first article 228, the first part of article 231 and article 233 of the Criminal Code of the Russian Federation, or 20 only if the relevant article of the Special Part of the Criminal Code of the Russian Federation provides for deprivation of liberty as the only type of punishment. However, the regional courts did not always comply with this requirement of the law.

Thus, by the verdict of the Spassky District Court of the Penza Region dated February 21, 2012, Kh.V.V. convicted under Part 1 of Art. 264 of the Criminal Code of the Russian Federation to 10 months of imprisonment on probation with a probationary period of 10 months. The cassation ruling of the Judicial Collegium for Criminal Cases of the Penza Regional Court dated April 18, 2012 changed the court's verdict due to the incorrect application of the criminal law in sentencing. In accordance with Part 2 of Art. 15 of the Criminal Code of the Russian Federation a crime under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, refers to the category of crimes of minor gravity, which is committed by the convict for the first time. aggravating circumstances under Art. 63 of the Criminal Code of the Russian Federation, it was not established in his actions. In addition to imprisonment, the sanction of Part 1 of Art. 264 of the Criminal Code of the Russian Federation provides for other types of punishments, therefore, punishment in the form of imprisonment in this case, including conditionally, cannot be imposed. The Judicial Board appointed H.The.The. punishment for hours. 1 Article. 264 of the Criminal Code of the Russian Federation in the form of corrective labor at the main place of work for a period of 6 months with a deduction of 5% from wages to the state. The punishment was imposed with the application of Art. 73 of the Criminal Code of the Russian Federation conditional with a probationary period of 6 months.

The practice of terminating criminal cases of this category showed that most criminal cases were terminated by the courts in connection with reconciliation with the victim. However, it must be borne in mind here that the termination of a criminal case upon reconciliation of the parties is a right, and not an obligation, of the court. When deciding to terminate the criminal case in connection with the reconciliation of the person who committed the crime with the victim, it is necessary to comprehensively investigate the nature and degree of public danger of the deed, data on the identity of the defendant, other circumstances of the case (whether the proper person was recognized as the victim, his financial situation, whether it turned out to be pressure on the victim for the purpose of reconciliation, what actions were taken by the perpetrator in order to make amends for the harm caused by the crime, etc.). When making a decision, one should assess whether it corresponds to the goals and objectives of protecting the rights and legitimate interests of the individual, society and the state. In this regard, it is also necessary to establish whether the provisions of Art. 76 of the Criminal Code of the Russian Federation, the grounds according to which a person who has committed a crime of small or medium gravity for the first time can be exempted from criminal liability, if he has reconciled with the victim and made amends for the harm caused to him.

5. Final provisions

Based on the results of the generalization of the judicial practice of sentencing in criminal cases on the commission of crimes under Article 264 of the Criminal Code of the Russian Federation, it can be concluded that the regional courts generally correctly apply the requirements of the law. The operative part of the verdicts contains fairly clear wording on issues related to sentencing. The courts indicate the type and amount of the main and additional punishments imposed on the defendant, the type of correctional institution in which the convicted person must serve the sentence, the duration of the probationary period in case of conditional conviction and the listing of duties that are assigned to the conditionally convicted person, the decision on the procedure for following the convict to the place serving a sentence if he is sentenced to serve a sentence of imprisonment in a colony-settlement. Deprivation of liberty is imposed in cases where the courts come to the conclusion that it is impossible to determine a different type of punishment, and these decisions are motivated in the verdict. However, some courts do not fully comply with the requirements of the criminal law on the individualization of punishment, mistakes are made related to taking into account mitigating circumstances. In this regard, when imposing punishment, the regional courts should more carefully comply with the requirements of the law and take into account the recommendations contained in the decisions of the Plenum of the Supreme Court of the Russian Federation. The results of the generalization are proposed to be discussed at the operational meetings of the judges of the region and used in the work.

Department of Analysis and Generalization of Judicial

practices of the Penza Regional Court

P R I G O V O R

In the name of the Russian Federation

Judge Kochubeevsky District Court of the Stavropol Territory Vipritsky H.The.

with the participation of the public prosecutor -senior assistant prosecutor Kochubeevsky districtShlyahova C.The.

defendant L. A.A.

defender - lawyer Panchenko V.P. who submitted certificate No. 658 and warrant No. 113154 dated March 24, 2009 of the Law Office No. 1 of the Kochubeevsky district

at the secretary of the court session Balatskaya C.S.

as well as the victim Kravtsova AND.The.

having examined in open court session in the courtroom the materials of the criminal case against

L. A. A., born on August 28, 1973, a native of Kyiv, Ukraine, a citizen of the Russian Federation, with a secondary education, having two dependent children, not working, liable for military service, living at the address: with. Kazminskoye ........ Kochubeevsky district of the Stavropol Territory, not convicted

accused of committing a crime under Part 1 of Article 264 of the Criminal Code of the Russian Federation,

u s t a n o v i l:

L.A.A. violated the rules of the road and the operation of vehicles, negligently entailed the infliction of grievous harm to human health.

The crime was committed under the following circumstances.

L.A.A. being obliged by virtue of clause 1.3 of the Rules of the Road of the Russian Federation to know and comply with the requirements of the Rules relating to him, not to create danger to traffic and not to cause harm, violated the requirements of the Rules of the Road and the operation of vehicles. As a result, he committed a traffic accident.

On January 02, 2009 at 05:00, driving a technically sound official car Ford Escort (state registration plate K 9 ... BT 26) belonging to V.V.A. the state technical inspection of which was not passed, moving along the Kochubeevskoe-Kazminskoe-Zavetnoe highway from the side of the village. Kochubeevsky in the direction of with. Kazminsky, did not ensure traffic safety, did not take comprehensive precautions, drove the car without taking into account road conditions at a speed that did not provide the possibility of constant control over the movement of the vehicle, for 8 km. + 680 m of this road lost control, allowed the car to skid, go beyond the carriageway to the right in the direction of travel, where the car hit a tree. From the scene L.A.A. left in a Ford Escort car, did not report the incident to the police.

Through their actions, L.A.A. violated the requirements of paragraphs 1.5, 2.5, 10.1 paragraph 1 of the traffic rules of the Russian Federation and paragraph 2 of the "Basic provisions for the admission of vehicles for operation" of the traffic rules of the Russian Federation.

As a result of violation of the requirements of the Rules of the Road and the operation of vehicles and the commission of a traffic accident to the passenger of the car "Ford Escort" g.r.n. K 9.. VT-26 K.I.V. closed fractures of the pelvic bones were caused with violation of the integrity of the pelvic ring, neck of the right humerus and scapula with dislocation of the right shoulder, rupture of the liver and bladder, qualified according to the conclusion of the forensic medical examination No. harm to health.

When familiarized with the materials of the criminal case accused L. A.A. filed a motion for a sentencing without a trial.

At the hearing the defendant L. A.A. he fully recognized his guilt in the act charged with him and supported his petition for the application of a special procedure for making a judicial decision, for passing a sentence without holding a trial in a general manner. He explained that he agreed with the accusation, was aware of the nature and consequences of the petition made to him and understood what the essence of the accusation and the special order of the trial was and what were its procedural consequences, the petition for the application of the special order was made voluntarily and after consultation with the defense counsel.

At the request of L.A.A. with the consent of the public prosecutor, the victim, the case is considered in a special manner without a trial. All the conditions for a sentencing without trial have been complied with. The defendant is aware of the nature and consequences of his petition, it was declared voluntarily and after consultation with the defense counsel. The public prosecutor and the victim do not object to the sentencing of L.A.A. without a trial.

In accordance with Article 314 of the Code of Criminal Procedure of the Russian Federation, the defendant has the right, with the consent of the public prosecutor and the victim, to declare his agreement with the charge brought against him and to petition for a verdict without a trial in criminal cases of crimes, the punishment for which, provided for by the Criminal Code of the Russian Federation, does not exceed 10 years of imprisonment. The sanction of article 264 part 1 of the Criminal Code of the Russian Federation provides for a maximum penalty of 3 years in prison.

The court qualifies the actions of L.A.A. under Part 1 of Article 264 of the Criminal Code of the Russian Federation - a violation by a person driving a car of the rules of the road, which negligently entailed the infliction of grievous harm to human health.

Considering that the accusation, with which the defendant agreed, is justified in full and confirmed by the evidence collected in the case, the court appoints L. A.A. punishment under the rules of Part 7 of Article 316 of the Criminal Procedure Code of the Russian Federation.

When choosing the type and measure of punishment defendant L. A.A. the court took into account the nature and degree of public danger of the deed, the motives and methods of committing criminal acts, other specific circumstances in the case, along with data on the identity of the defendant, as well as circumstances affecting the type and amount of punishment.

The court took into account his sincere repentance, a positive characterization of his personality, the fact that he committed a crime of moderate gravity, he has no previous convictions, he is not registered with a narcologist and a psychiatrist, the opinion of the victim, who does not insist on a strict measure of punishment and considers it possible to apply to him a suspended sentence, with deprivation of the right to drive vehicles

The circumstance mitigating the punishment of the defendant L. A. A. by virtue of Part 2 of Article 61 of the Criminal Code of the Russian Federation is that he has two minor children as dependents.

Circumstances aggravating punishment by virtue of Article.63 of the Criminal Code of the defendant L.A.A. not established by the court.

Guided by Article.Article. 314, 316 Code of Criminal Procedure of the Russian Federation, court

P I G O V O R I L:

L.A. A. found guilty of committing a crime under Part 1 of Article 264 of the Criminal Code of the Russian Federation and sentenced him to 1 (one) year in prison, with deprivation of the right to drive vehicles for a period of 1 (one) year.

On the basis of Article 73 of the Criminal Code of the Russian Federation, the punishment is considered suspended with a probationary period of 1 (one) year.

Oblige L.A.A. during the period of probation, monthly register with a specialized state body that carries out the correction of the convict, do not change the permanent place of residence without notifying the specialized state body that carries out the correction of the convicted person.

In accordance with Part 2 of Article 71 of the Criminal Code of the Russian Federation, deprivation of the right to drive vehicles, to perform independently.

Measure of restraint L.A.A. a written undertaking not to leave and proper behavior before the entry into force of the verdict - to be left unchanged.

Material evidence: Ford Escort car (state registration plate K 9 .. BT 26) - return according to ownership.

The verdict can be appealed in cassation to the Stavropol Regional Court within 10 days from the date of its announcement in compliance with the requirements of Article. 317 of the Code of Criminal Procedure of the Russian Federation, and convicts L.A.A. within the same period from the date of delivery of a copy of the judgment. In the case of filing a cassation appeal, the convict has the right to petition for his participation in the consideration of the criminal case by the court of cassation.

An appeal against the verdict is possible only in part: violation of the criminal procedural order, incorrect application of the criminal law, unfairness of the verdict.

Judge of the Kochubeevsky District Court N.V. Vipritsky