Restriction of judge’s discretion when transferring mitigating circumstances into the status of exceptional ones according to Article 64 of the Criminal Code of the Russian Federation

The analysis of the current version of Article 64 of the Russian Criminal Code given in the article allows the authors to conclude that failed legislative regulation of exceptional mitigation of punishment gave rise to a phenomenon of broad judge discretion. In practice any circumstances accepted by the court as mitigating can be transferred into the status of exceptional without any motivation and serve as the reason for the punishment more lenient than the law provides for this crime. And even after establishing exceptional circumstances application of Article 64 of the Russian Criminal Code is the right but not the duty of the court. Moreover, the legislator admits applying exceptional mitigation with any aggravating circumstances available. The law gives a halfway solution to the issue of categories of convicts against whom exceptional mitigation cannot be applied. The authors give the data of investigating 310 sentences where Article 64 of the Russian Criminal Code was applied and 108 surveys conducted among judges on the problems of practice and legislative regulation of exceptional mitigation. The results of the mentioned research enable the authors to frame their suggestions for improvement of using the current criminal legislation and identify the directions of its changes. According to these directions a theoretical model of Article 64 of the Russian Criminal Code is provided.