HRC member Eva Merkacheva proposed granting a deferment of serving sentences to guardians

The Investigative Committee supported the human rights activist

Judges will probably offer a deferment of serving a sentence until the child turns 14 years old not only to mothers, but also to guardians. This initiative was made by HRC member Eva Merkacheva at a meeting of the working group to discuss the draft resolution of the plenum of the Supreme Court on granting a deferment of serving a sentence.

The Investigative Committee of the Russian Federation adheres to the same position. In his opinion, the institution of deferment of serving a sentence is aimed at ensuring the interests of the family and minors, and therefore the imperative prohibition of its application to guardians and trustees of a child is questionable. But in the case of trustees, it will not be possible to defend the deferment: according to the law, these are those who have taken on the responsibilities of raising teenagers over 14 years of age.

The HRC also supported the Prosecutor General’s Office, which proposes to clarify the concept of “sole parent” (it is not defined in criminal law). Let us remind you that in addition to mothers, the deferment is granted to fathers who are the only parents. But this is not necessary in the case where the mother has died.

According to the GP, a situation may arise when the mother is declared incompetent, declared missing or deprived of parental rights, or her whereabouts have not been established.

In addition, the draft resolution of the plenum states that a woman who is a surrogate mother can also be granted a deferment from serving her sentence during pregnancy and only until the parents have completed the relevant documents for the child.

Legal scholars at Moscow State University believe that this amendment is not needed. In their opinion, a surrogate mother during pregnancy is no different in status from another pregnant woman; the criminal law does not differentiate between pregnant women based on whether they are a genetic mother or a surrogate; the fact of pregnancy is sufficient.

The indication that a deferment can be granted only until the documents are completed is also unnecessary. If a child, in accordance with the contract, is transferred to a married couple or a woman who, in accordance with family and medical legislation, has the right to use the services of a surrogate mother, then the surrogate mother loses the legal connection with the child born to her and cannot be considered as the parent of this child. In this case, the deferment granted to her is subject to cancellation, as in the case, for example, of deprivation of parental rights, death of a child and similar circumstances.

Merkacheva also asked to exclude the indication that the deferment could be canceled if the parent left the child to relatives or other persons.

The fact is that there are cases when a mother goes on a business trip or to solve some urgent matters, while a grandmother or aunt looks after the children. Until today, guardianship authorities and criminal enforcement inspectorates could demand the cancellation of the deferment in such situations. The Supreme Court agreed that this should not happen.