В ст.397, 399 Code of Criminal Procedure established a range of issues relating to the execution of the sentence and the procedure for their consideration. In addition to them, the Code provides another article regulating this area. This is Art. 396 Code of Criminal Procedure. In part 5 of the norm it is established that all circumstances relating to the implementation of the sentence are dealt with by the judge alone in the meeting. Consider further Art. 399 Code of Criminal Procedure (with comments in 2015).
In the considered norm it is established thatthe circumstances that relate to the implementation of the sentence are examined by the court at the request of the rehabilitated. This provision is valid in the case provided for in paragraphs first Art. 397, 399 Code of Criminal Procedure. Вопросы, касающиеся реализации приговора, могут to understand at the request of the convict. This takes place in the cases specified in paragraphs 3-6, 9 and 11-15 of Art. 397 Code of Criminal Procedure, Part 1 and 2 of Art. 398. Proceedings of questions may be carried out on the proposal of the UIS body or the PD at the place of detention of the citizen. Such a situation occurs in the cases provided for in clauses 18 and 18.1 of Article 397.
Proceedings can be carried out withsubject to the provisions of Art. 469-472. For this, the circumstances established in clauses 20 and 21 of 397 of the Article of the Code should take place. Questions may be considered on the proposal of the body / institution that executes the punishment, in situations defined by clause 12 of this norm. This rule applies to persons who have committed at the age of 18 liters. encroachment on sexual inviolability of a minor citizen (up to 14 years old) and recognized as suffering from pedophilia, which does not exclude sanity.
Proceedings related toimplementation of the sentence, carried out by the submission of the institution and in the cases provided for by paragraphs 19, 17-17.2, 15, 10, 13, 12, 7-8.1, 4.2, 4.1, 2 397 articles of the Code. If the subject is serving a sentence under art. 81 of the PEC, the provisions stipulated in p. 3-5 of the above norm apply. Consideration of the circumstances relating to the implementation of the sentence, is carried out in accordance with the provisions of Art. 432 in the case established by clause 16,397 of the Code of Criminal Procedure.
Listed in Part 1 of Art. 399 Code of Criminal Procedure Citizens, bodies / organizations should be notified about the place, time and date of the meeting. The notice is sent no later than 14 days before the appointed day. In accordance with the hours 2 tbsp. 399 Code of Criminal Procedure, a representative of the body is called to court,sent the submission, or institution that executes the punishment. If the question is related to the implementation of a decision regarding the satisfaction of a civil action, the relevant plaintiffs and respondents may be called.
The convict has the right to file a petition forparticipation in the meeting. In this case, his direct presence must be ensured or the opportunity to express his position through video conferencing should be provided. The question of the form in which the convicted person will take part is decided by the court. A petition may be sent simultaneously with the application on issues relating to the execution of the sentence, or within ten days from the moment the person receives notification of the place, time and date of the meeting.
The rules by which victims are involved are provided for in Part 2.1 Art. 399 Code of Criminal Procedure. Victims may participate in a meeting atcertain conditions. In particular, they may be brought to the consideration of the issues referred to in paragraphs 19, 4, 5, 397 of the Criminal Procedure Code article, as well as related to the delay in the execution of the sentence. At the same time, a definition / decision of the court on notification of the victim, made in accordance with the provisions of Part 5 of Art. 313 of the Code.
Similar conditions apply to hislegal representative. These persons can participate in the review directly or through video conferencing. The victim (representative) is informed about the place, date and time of the meeting, the possibility to use communication systems no later than 14 days before the appointed date.
Questions about the form in whichThe victim / representative will participate in the consideration, the court must decide if there is a petition made within ten days from the date of receipt of the notification. The non-appearance of persons duly notified of the place, time and date of the meeting does not prevent it from being held.
Art. 399 Code of Criminal Procedure defines a series of rights for individuals who takeparticipation in the consideration of matters relating to the execution of the sentence. This, in particular, about the convicted and the victim (representative). The specified subjects can get acquainted with the materials submitted to the court, participate in the process of their consideration, give explanations, declare objections, petitions, submit documents.
AT Part 4 of Art. 399 Code of Criminal Procedure the possibility of the convict is providedexercise your rights through a lawyer. In addition, the prosecutor may participate in the meeting. The proceedings shall be initiated by the representative of the authority / institution that submitted the submission, or the petitioner. After the speeches, the materials provided to the court are studied, explanations of citizens who have come to be considered, the opinion of the prosecutor are heard. At the end of the meeting a resolution is issued.
Разрешение вопросов, которые касаются исполнения sentence, carried out in open session. The exceptions are cases established by article 241 (part 2) of the Code. The court explains to persons their duties, responsibilities, rights and ensures the possibility of their implementation.
Art. 396, 399 Code of Criminal Procedure define general and special rulesconsideration of issues. The initiative of the proceedings may come from the institution / body convicted (representative), the competent structures of a foreign state, in accordance with international law. In this case, the fifth paragraph of the first part of Art. 399 Code of Criminal Procedure, providing for the resolution of issues relating to the execution of the sentence on the proposal of the organization implementing the punishment, does not prevent the serving persons from sending a petition to change the place of detention.
In addition, the indicated citizen may requestreplacing the unserved part of the imputed sanctions with softer measures. The court, in turn, is obliged to consider the relevant petitions, in the manner prescribed by law.
Considering Art. 399 Code of Criminal Procedure with commentsIt should be noted that the provisions of part onethe norms in their constitutional and legal interpretation, arising from Decree of the Constitutional Court No. 16-P of 11.26.2002, do not preclude the filing of an application for the abolition of punishment and the removal of a criminal conviction and conditionally convicted.
In this case, the authority is also obliged to consider the application on the merits. It does not matter if there was a submission from the body controlling the behavior of the person, on this issue or not.
This assumption is provided for by Article 397 in paragraph 6. It is based on Art. 81 of the Code. According to paragraph two of part one Art. 399 Code of Criminal Procedure, данный вопрос решается по ходатайству convict. At the same time, according to Art. 175 (part five) of the PEC, a request to release from serving a sentence due to the occurrence of a mental disorder can be filed not only by the citizen, but also by his legal representative.
Justify the facts regarding the execution of the sentenceand acting as a subject of study at a meeting, should an institution / body or a convicted person. It depends on whose initiative became the basis for the proceedings. If there is not enough data in the materials submitted to the court for the consideration of the petition or petition, they will be returned in the course of the preparation for the session for the corresponding formalization. Meanwhile, the limits of the activity of an instance when studying circumstances are much wider than in ordinary cases.
Taking into account the constrained position of the face,serving a sentence, in obtaining evidence, the court is charged with the duty not only on his petition, but also on his own initiative to reclaim the missing materials. In the absence of documents that should be provided by the administration of the body or institution that executes the punishment, the authorized body cannot refuse to accept the application from the convict, his lawyer or representative. The court should assist in the collection of information that cannot be obtained by the subjects.
According to the meaning of part two Art. 399 Code of Criminal Procedure, all citizens, authorities and institutions specified inParts of the first, including the rehabilitated / convicted person, are entitled to attend the proceedings, since they must be notified of its date, place and time. Participation in a meeting of a person serving a sentence depends on the availability of a petition from him.
In this case, the court is charged with the obligation to providehis presence or provide an opportunity to justify his position through video conferencing. The Plenary Session of the Supreme Court in one of its resolutions clarified that the issue of replacing the unserved term of the assigned compulsory / correctional work or restriction of liberty with imprisonment is decided in the presence of the subject in relation to which it is being carried out.
In addressing this issue, the court mustcheck whether the disease is included in the list of pathologies that prevent punishment from serving. In this case, the disease should be ascertained by a special medical commission or an ITU institution, on which a conclusion is drawn up. The court, in addition, takes into account other circumstances that are relevant to the resolution of the petition / petition on the merits.
Instance cannot refuse to accept the applicationfrom the convict for release, sent directly to her, due to the lack of documents (conclusion, extract from the personal file). These papers should be provided by the administration of the body / institution executing the punishment in the event of a severe condition of the person.
The court must send a copy of the convicted petition to the organization in which the citizen is located in order to immediately provide the necessary materials.
When deciding whether to release a person orthe replacement of sanctions by more lenient measures in connection with the adoption of a criminal law that has retroactive force, the court motivates the decision only by the circumstances established by the verdict, which came into effect and appointed the appropriate measure of responsibility.
In this case, the correctness of the application of the rules of the Criminal Code assessmentis not subject to. If during consideration of the petition of the convicted person or the presentation of the competent authorities / employees, it will be determined that the adopted law does not improve the situation of the person, a decision is made to refuse to satisfy them. If a new regulatory act eliminating the crime of the committed act, a mitigating measure of responsibility, etc., has not been applied by the court that passed the sentence, this issue cannot be considered according to the rules of art. 399 Code of Criminal Procedure.
A person who is serving a sentence may protectyour interests with the help of a lawyer. A citizen allowed to participate in a case in this status retains criminal procedural duties and rights in the next stages of the proceedings. It seems that the restriction of persons who are authorized to represent the interests of the convicted person at the stage of execution of the sentence only by lawyers is unacceptable. Otherwise, this would be an unjustified infringement of the constitutional right to receive legal assistance.
Current Penal Act rightestablishes the possibility of providing legal assistance to a subject serving a sentence. It can be provided not only by citizens who have the status of a lawyer, but also by other persons who have the right to exercise law. services.
