In Art. 397, 399 of the Code of Criminal Procedure of the Russian Federation, a range of issues has been established regarding the execution of the sentence and the procedure for their consideration. In addition to them, the Code provides for another article governing this area. This is art. 396 Code of Criminal Procedure. Part 5 of the norm establishes that all circumstances that relate to the implementation of the sentence are examined by the judge individually at the hearing. Consider further Art. 399 Code of Criminal Procedure (with comments of 2015).
General rules
In the considered norm, it is established that the circumstances relating 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 of the first article. 397, 399 of the Code of Criminal Procedure. Matters relating to the implementation of the sentence may be examined at the request of the convict. This takes place in the cases defined in paragraphs 3-6, 9 and 11-15 of Art. 397 Code of Criminal Procedure, part 1 and 2 of Art. 398. The consideration of issues may be carried out on the basis of a proposal from the UIS or VD authority at the place of detention of the citizen. Such a situation occurs in the cases provided for in paragraphs 18 and 18.1 of the 397th article.
The consideration of issues may be subject to the provisions of Art. 469-472. For this, the circumstances established in paragraphs 20 and 21,397 of the Code article must take place. Issues may be considered at the recommendation of the body / institution executing the punishment in situations specified in clause 12 of this norm. This rule applies to persons who have committed 18 years of age. encroachment on the sexual inviolability of a minor citizen (up to 14 years old) and recognized pedophilia sufferers, not excluding sanity.
The consideration of circumstances relating to the implementation of the sentence shall be carried out upon the recommendation of the institution and in the cases provided for in clauses 19, 17-17.2, 15, 10, 13, 12, 7-8.1, 4.2, 4.1, 2,397 of the Code. If the subject is serving a sentence under Art. 81 PEC, the provisions of paragraphs 3-5 of this norm apply. Consideration of circumstances relating to the implementation of the sentence is carried out in accordance with the provisions of Article. 432 in the case established by clause 16 397 of the article of the CPC.
Face Notification
Indicated in Part 1 of Art. 399 of the Code of Criminal Procedure of the Russian Federation, citizens, bodies / organizations should receive a notification of the place, time and date of the meeting. The notification shall be sent no later than 14 days before the appointed day. In accordance with Part 2 of Art. 399 of the Code of Criminal Procedure of the Russian Federation , a representative of the body that sent the submission or of the institution that executes the punishment is called to court. If the issue is related to the implementation of the decision regarding the satisfaction of a civil claim, the relevant plaintiffs and defendants may be called.
The convicted person has the right to send a request for participation in the meeting. In this case, its direct presence must be ensured or the opportunity to express its position by means of video-conferencing communication should be provided. The question of in what form the convict’s participation will be carried out is decided by the court. A petition may be sent simultaneously with a statement on matters related to the execution of the sentence, or within ten days from the moment a person receives a notice of the place, time and date of the meeting.
Involvement of the victim
The rules by which the victims are involved are provided for in part 2.1 of art. 399 Code of Criminal Procedure. Victims have the right to participate in the meeting under certain conditions. In particular, they may be involved in the proceedings of the issues referred to in paragraphs 19, 4, 5 397 of the article of the CPC, as well as those related to the postponement of the execution of sentences. In this case, the case file must contain a court ruling / ruling on the notification of the victim, issued in accordance with the provisions of Part 5 of Art. 313 of the Code.
Similar conditions apply to his legal representative. These persons may participate in the review directly or through video conferencing. The victim (representative) is notified of the place, date and time of the meeting, the ability to use communication systems no later than 14 days before the appointed date.
Questions about the form in which the victim / representative will participate in the consideration must be decided by the court if there is a petition filed within ten days from the receipt of the notice. The failure to appear of persons duly notified of the place, time and date of the meeting does not preclude its holding.
Additionally
Art. 399 of the Code of Criminal Procedure of the Russian Federation defines a number of rights for persons who take part in the consideration of issues related to the execution of sentences. Speech, in particular, about the convict and the victim (representative). These entities may familiarize themselves with the materials submitted to the court, participate in the process of their consideration, give explanations, declare challenges, petitions, and provide documents.
In h. 4 Article 399 of the Code of Criminal Procedure provides for the possibility of a convict to exercise his rights through a lawyer. In addition, the prosecutor may participate in the meeting. The proceedings are initiated by the representative of the authority / institution that submitted the submission or by the petitioner. After the speeches, the materials provided to the court are studied, the explanations of the citizens who came to the hearing, the opinion of the prosecutor are heard. At the end of the meeting, a decision is made.
Art. 399 Code of Criminal Procedure: comments
Resolution of issues related to the execution of the sentence is carried out in open session. The exception is cases established by 241 articles (part 2) of the Code. The court explains to persons their duties, responsibilities, rights and provides the possibility of their implementation.
Art. 396, 399 of the Code of Criminal Procedure determine general and special rules for the consideration of issues. Initiative for proceedings may come from the institution / body, the convicted (representative), competent structures of a foreign state, in accordance with international law. Moreover, paragraph five of the first part of Article 399 of the Code of Criminal Procedure of the Russian Federation, which provides for the resolution of issues related to the execution of a sentence on the proposal of an organization that implements punishment, does not prevent a serving person from sending a request to change the place of detention.
In addition, the indicated citizen may ask for the replacement of the unserved portion of the sanctions imputed to him with milder measures. The court, in turn, is obliged to consider the relevant applications in the manner prescribed by law.
Important point
Considering Art. 399 of the Code of Criminal Procedure of the Russian Federation with comments , it should be noted that the provisions of the first part in their constitutional legal interpretation, arising from the Decree of the Constitutional Court No. 16-P of 11.26.2002, do not interfere with the petition for the abolition of punishment and the removal of a criminal record and conditionally sentenced .
In this case, the court is also obliged to consider the merits of the application. It doesn’t matter if a submission has been received from the body controlling the person’s behavior on this issue or not.
Sickness exemption
This assumption is provided for in article 397 in paragraph 6. It is based on Art. 81 of the Code. According to paragraph two of the first part of Art. 399 of the Code of Criminal Procedure , this issue is decided at the request of the convict. Moreover, according to Art. 175 (part five) of the PEC, a request to be released from serving a sentence due to the onset of a mental disorder can be submitted not only by the citizen himself, but also by his legal representative.
Proof of circumstances
Justify the facts regarding the execution of the sentence and acting as the subject of study at the meeting should be the institution / body or the convicted person. It depends on whose initiative became the basis for the proceedings. If the materials received by the court do not have enough data to consider the submission or the petition, in preparation for the meeting they are returned for appropriate processing. Meanwhile, the limits of the activity of the authority in the study of circumstances are much wider than in ordinary cases.
Taking into account the constrained position of the person serving the sentence in obtaining evidence, the court is charged with the obligation not only at his request, but also on his own initiative to recover the missing materials. In the absence of documents that must be provided by the administration of the body or institution executing the punishment, the authorized instance cannot refuse to accept the application from the convict, his lawyer or representative. The court must assist in the collection of information that cannot be obtained by the entities.
Features of participation in the meeting
The meaning of the second part of Art. 399 of the Code of Criminal Procedure of the Russian Federation , all citizens, bodies and institutions referred to in the first part, including rehabilitated / convicted persons, 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 ensure its presence or to provide an opportunity to substantiate its position through video-conferencing. The Plenum of the Armed Forces in one of its decisions clarified that the issue of replacing the unexpired term of the prescribed compulsory / correctional labor or restriction of liberty with imprisonment is decided in the presence of the subject in respect of whom it is carried out.
The specifics of sick leave
In resolving this issue, the court must check whether the disease is included in the list of pathologies that impede the serving of sentences. In this case, the disease should be ascertained by a special medical commission or by the ITU institution, as a conclusion is drawn up. The court, in addition, takes into account other circumstances that are relevant to the resolution of the submission / application on the merits.
The institution cannot refuse to accept the application from the convict for release sent directly to her because of the lack of documents (conclusion, extract from personal file). The indicated papers must be provided by the administration of the body / institution executing the punishment in the event of a grave condition of the person.
The court must send a copy of the convict’s request to the organization where the citizen is located to immediately provide the necessary materials.
Amnesty and commutation of sentence
When deciding on the issue of releasing a person or replacing sanctions with milder measures in connection with the adoption of a criminal law with retroactive effect, the court motivates the decision only with the circumstances established by the sentence that entered into force and appointed the appropriate measure of responsibility.
Moreover, the correct application of the norms of the Criminal Code is not subject to assessment. If, when considering the convict’s application or the submission of the competent authorities / employees, it is determined that the adopted law will not improve the situation of the person, a decision is made to refuse to satisfy them. If the new normative act eliminating the crime of the committed act, mitigating the measure of responsibility, etc., is not applied by the court that passed the sentence, this issue cannot be considered according to the rules of Art. 399 Code of Criminal Procedure.
Rights of a convict
A person who is serving a sentence can defend his interests with the help of a lawyer. A citizen who is allowed to participate in the case in this status retains criminal procedural duties and rights in the following stages of proceedings. It seems that the restriction of persons who are authorized to represent the interests of the convicted person at the stage of the execution of the sentence only by lawyers is unacceptable. Otherwise, this would constitute an unjustified violation of the constitutional right to receive legal assistance.
The current criminal-executive law directly establishes the possibility of providing legal assistance to an entity 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 a legal entity. services.