Stage Execution of the sentence has important socio-legal importance, since it completes justice to criminal matters.
The execution of the sentence is the final stage of law enforcement criminal procedure, which suits the peculiar result of the entire mechanism for the functioning of the criminal justice of the state. The effectiveness of the implementation of many principles depends on the effectiveness of sentencing state power: legislative, executive, judicial.
The execution stage includes criminal procedural activities of the Court:
- a) on the appeal of sentence and other court decisions on criminal cases for execution (Art. 390, 393 of the Code of Criminal Procedure);
- b) on the direct execution of exclusive sentences or sentences, exempting the defendant from punishment in part of its immediate release from custody in the courtroom (Article 311 of the Code of Criminal Procedure);
- c) on monitoring the progress of the sentence (art. 392-394k);
- d) to resolve issues related to the privileges of the sentence (Article 395-401 of the Code of Criminal Procedure).
The court's activities are inextricably linked to the adequacy function: it is an integral part of the criminal proceedings based on unified principles, is strictly regulated by the norms of federal criminal procedure legislation and is aimed at achieving the general objectives of criminal proceedings. This stage, completing criminal proceedingsis mandatory for each criminal case discussed in court session.
About implementation judicial authority In the execution stage, the court hearing is characterized by the court hearing (Article 396,399 of the Code of Criminal Procedure) with the involvement of various participants in the process (convicted, prosecutor, a representative of the institution acting, if necessary, a civil plaintiff, a civil respondent). No other state bodies have the right to assume the permission feature of the issues referred to in the Law, which are prerogative of only the court.
Subjects of procedural activities in the process under consideration may be a prosecutor, convicted, other participants judicial trial, Representatives of institutions and bodies acting.
The prosecutor in accordance with his authority supervises the execution of laws in the execution of punishment, including through participation in court sessions when resolving the court issues related to the execution of the sentence.
Condemned and other participants in the trial (civil plaintiff, civil respondent) can participate in court sessions when considering issues related to the execution of the sentence, in order to protect their rights and legitimate interests (Art. 399 CPC).
Institutions and bodies executing criminal punishments according to the rules of the PEC and other normative acts of a criminal and executive nature carry out the actual execution of the sentence. In this part, their activities are not included in procedural stage Executions of the sentence, it is associated with the implementation of related, but other criminal and executive relations.
In cases provided for by the Criminal Procedure Law (Part 1 of Article 399 of the Code of Criminal Procedure), these bodies, as well as the internal affairs bodies at the place of detention of the convict shall be sent to the court, on the basis of which issues related to the execution of the sentence.
Representatives of the institution or body of the Criminal Executive System participate in court sessions related to bringing the sentence to execution (Part 2 of Article 399 of the Code of Criminal Procedure), and, therefore, also become subjects of criminal procedure relations, expressing their opinion on issues requiring judicial permit .
The variety and versatility of the issues of the sentence of the sentence determines the differences in the nature of the procedural actions of the court.
The first group of action is "procedural-administrative" - \u200b\u200bincludes the functions of the court to address the sentence to execute and compulsory verification by the court of leading a sentence, definition or resolution by authorized by the authorities. Judicial control In the execution of criminal penalties, in detailed in detail in Art. 20 PEC. The court, firstly, controls the execution of punishments by the court sentence, as well as in solving a number of issues related to the appeal to execution (part 1 of Art. 20 PEC), and secondly, considers complaints of convicted and other persons to the actions of the administration institutions and authorities performing punishment (part 2 of Art. 20 PEC).
A number of questions arising in this stage are administratively organizational in nature, and therefore is regulated by various departmental instructions and is considered within the framework of the course "Organization of Courts", as well as courses of criminal law and enforcement proceedings.
The second group of judicial actions is associated with the procedural establishment, research and assessment of various facts in its content, not related to the circumstances of the crime itself and made due to its committing a sentence, which has entered into legal force, but arising from legal relations to fulfill this sentence and directly stipulated by the material (MC, PEC) and procedural (Article 397, 400 of the Code of Criminal Procedure) by law.
The third group of actions of the Court are connected with its forced invasion in the stage under consideration in the sentence, due to the need for permission of all kinds of doubts and ambiguities arising from its execution, including the rules for applying a changed criminal law. At the same time, the resolution of such, and equally all other questions should not affect the essence of the sentence and to entrust the deterioration of the provision of the convicted person.
Thus, under the execution of the sentence, the court and other subjects of criminal proceedings on the appeal of a sentence for execution, controlling its execution, as well as directly consideration by the court of issues related to the privilege of the sentence, is understood.
The value of the criminal procedure under consideration is determined by the tasks facing it arising from Art. 6 COO: timely and accurate implementation of all decisions taken by the court in the sentence; carrying out control over the appeal of the sentence to execution; introduction of relevant changes based on the material and procedural law in order and conditions for serving the sentence of convicts; Permits of inaccuracies and ambiguities identified in the verdict in its execution and therefore makes it difficult to legitimate implementation.
Execution of sentence - This is an independent and final stage of the criminal proceedings, which implements those power regulations of the Court, which are set forth in the sentence entered into legal force. This court activity is regulated by procedural regulations, is based on the unified principles of the criminal process and is aimed at achieving criminal proceedings. The verdict of the court of first instance enters into legal force after the expiration of its appeal in appeal or cassation, if he was not appealed by the parties.The verdict of the appellate court enters into legal force after the expiration of its appeal in cassation, if he was not appealed by the parties.
In the case of filing a complaint or submission in cassation, the sentence, if it is not canceled by the court of cassation, enters into force on the day of the cassation definition. If several persons are convicted in the criminal case, and the verdict appealed not all, then the sentence enters into force in relation to all convicts also on the day of the cassation definition.
Thus, the execution of the sentence is the activities of the Court and other authorities of the law and officials on the practical implementation of the prescriptions of the sentence that entered into legal force. The execution of the indictment, as a rule, includes three stages - the appeal of the sentence to execution, bringing it into execution and extent in time the process of practical execution of punishment. The appeal of the sentence to execution is the responsibility of the court, its decision.[ ]
The sentence refers to the execution by the court of first instance no later than three daysfrom the date of his entry into force or return of the criminal case from the court of appeal or cassation (Article 390 of the Code of Criminal Procedure).
The definitions and decisions of the Court come into force on the same rules as the verdict, except for the two exceptions:
· the definition or judgment of the court, not subject to appeal in the cassation, enters into force and appeals to execution immediately.Not subject to appealing of the definition or resolution issued during the trial: on the procedure for researching evidence; about satisfying or rejecting the petitions of the participants in the court proceedings; On measures to ensure order in the courtroom, with the exception of definitions or decisions on imposing monetary recovery (Part 5 of Art. 355 CPC).
· determination or decision of a court on termination of a criminal case, adopted during litigation criminal case subject to immediate execution In that part of his part, which concerns the liberation of the accused or defendant from custody.
In accordance with Art. 392. Code of Criminal Procedurewho entered into force the verdict, the definition or order of the court is obligatory for all state authorities, organs local governments, organizations, officials, public associations, citizens and are subject to strict performance throughout Russian Federation. The non-execution of the sentence, the definitions, judgment of the Court entails the responsibility provided for by Art. 315 of the Criminal Code of the Russian Federation.
The criminal procedure provides that the appeal to the execution of the sentence, the definitions and decisions is assigned to the court, who considered the criminal case at the first instance. Wherein:
1) a copy of the indictment is sent by the judge or chairman of the court for the establishment or authority entrusted with the execution of punishment;
2) the court of appeal is obliged to inform the institution or the authority, which entrusts the execution of punishment, the results of the appeal consideration of the criminal case against a person contained in custody;
3) in the event of a sentence of the court of the first or appellate instance, when considering a criminal case, a copy of the court of cassation is also attached to the copies of the verdict.
The establishment or body that is entrusted with punishment is entrusted, the court immediately informs the conviction, about his execution, as well as about the place of serving the sentence of convicts.
According to Art. 394 Code of Criminal Procedure, after entry into force of the sentence, which convicted, contained in custody, sentenced to arrest or imprisonment, the administration of its place of detention informs the seven of the convict on where he is sent to serving the sentence.About addressing the sentence to execution in case of satisfaction civil law The civil plaintiff and the civil respondent are notified. In addition, in accordance with Art. 395 Code of Criminal Procedure, prior to the conversion of a sentence to execution, the presiding law in a criminal case or the Chairman of the Court provides at the request of the condemned relatives contained in custody, the possibility of a meeting with the convicted person.
Baryichin A. .. Large legal encyclopedic wordsBUT Ry. - M.: Book World, 2004. - P. 219.
The term "verification of the sentence" is used in a wide and narrow sense of the word. In the "First case, they are expressed by the activities of correctional institutions, the administrative bodies of the state, labor collectives on the actual implementation of the measures provided for by the verdict of the court measures of criminal punishment and re-education of the convicted person. This activity is regulated by the norms of the criminal executive, labor, administrative and other branches of law and is not criminal procedural.
In the narrow sense of the word, the execution of the sentence is, the final stage of the criminal proceedings in which the court and other subjects of the criminal proceedings are carried out by the criminal procedural law, and other subjects of the criminal proceedings for the execution of the sentence, control over its execution, as well as direct resolving issues related to With the execution of the sentence.
As an independent stage of the criminal process, the stage of execution of the sentence has all the signs that allocate this stage in the criminal process into a separate stage. Here are solved specific, specific for this stage, tasks arising from the general problems of criminal proceedings. They are aimed at ensuring the implementation of the sentence prescriptions, to adjust the punishment appointed by the court in the event of objective obstacles to its execution, to control over the execution of the sentence. The circle of participants in this stage is also specific. Procedural issues arising from the execution of the sentence are permitted individually for the judge of the district (urban) court at the place of resolution or the execution of the sentence, or at the place of residence of the convicted person. Art. 402 Code of Code determines which court in the stage of execution of the sentence allows one or another question.
Participants in this stage are a convicted, EGO defender, civil plaintiff, prosecutor, judicial executive representatives of the body by serving a sentence, a medical commission, who gave conclusion, public organizations (the Supervisory Commission, the Commission on Minors at the local executive and administrative authority), labor collectives.
In addition, the execution stage has its procedural form. The activities of the judge in this stage are one of the forms of administration of justice and is carried out mainly through court sessions.
This stage is the only stage that does not perform control functions relative to the previous stage and does not create prerequisites for the start of other stages.
The stage of execution of the sentence begins from the time of the entry into force of the sentence, as well as the definition or judgment of the court. These decisions are acquired legal force automatically: 1) after ten days from the day of the proclamation of the sentence, as well as to be appealing or protesting the definition (decree), if they were not appealed or appealed in cassation; 2) on the day of consideration of the case in the cassation instance, if it did not cancel the court decision; 3) the verdict, determination, the court decision, not subject to cassation appeal or protest, come into force from the moment they are proclaiming (Article 399 of the Code of Criminal Procedure).
· Appeal to execution;
· Direct execution by the court of some sentences;
· Court control over the execution of sentences;
· Resolution issues related to the execution of the sentence;
· Cancel or change of compulsory safety and treatment measures.
The appeal of the sentencing of the definition and judgment of the court to execute is a mandatory effect on the entry into force of the indictment with the appointment of punishment, as well as the definitions or judgment of the Court, which is carried out by the court who adopted the decisions.
The court, the sentence, in a 3-day, period from the date of his entry into force or return of the case from the court of cassation, sends a body to the authority to serve the sentence, a copy of the sentence and a written order about its execution. In case of a sentencing in the cassation or supervisory instance, copies of the relevant definitions or decrees are made to the sentence. Copies of these documents are bonded by the signature of the judge and the stamp of the court. If there are several convicts in the case, the copies of these documents are sent to each of them.
The law does not regulate the form and content of the aforementioned order of the court. According to the current practice, it indicates the place and time of its compilation, to whom it is sent, information about the convicted person, what a sentence is appointed to him, as it is changed in the cassation and proposal to bring the verdict to fulfillment, what to inform the court and the seven convicts.
The authority to which the court sends the above documents is determined in accordance with the criminal executive legislation and depends on the specified sentence. So, if a sentence of the court was sentenceded in the form of imprisonment, and the convict is in custody, the above documents are sent to the remand insulator. If the convict is on freedom, for example, under a subscription of a non-recognition, the documents are sent to the internal affairs authority to conclude it into custody and directions to the remand insulator. If in this case a pensioner was convicted, a copy of the sentence is sent to the pension body. When prescribing a sentence associated with the ban to occupy certain positions or engage in certain activities, a copy of the sentence is sent to the administration of enterprises, institutions, organizations at the place of work of the convicted person, as well as the internal affairs authority to control the execution of this penalties; A copy of the sentence associated with correction and education of conditionally convicted, as well as in connection with the appointment of correctional work, is sent to the inspection of correctional work; If the execution of the sentence is delayed, as well as in other cases - public organizations, labor collectives, branches of the prevention of internal affairs bodies. So, condemning a minor to a punishment that is not related to the deprivation of freedom, the court notifies the body that is responsible for serving the sentence, and imposes on it to control the behavior of the convicted person (part 2 of Art. 439 of the Code of Criminal Procedure).
The entry of the sentence (definitions, judgment of the court) into legal force means the emergence of a number of properties.
Among them, specialists in the field of criminal proceedings identify irrefutableness, exclusiveness, societuity, and prevalence and execution.
Efficiency of the sentence is the impossibility of its revision in the order of appeals and cassation industries.
Disprove the prescriptions (requirements) of the sentence entered into legal force only in exceptional order, i.e. in order judicial supervision or renewing a criminal case due to new or newly discovered circumstances provided for in chapters 48 (Art. 402-412) and 49 (Article 413-419 of the Code of Criminal Procedure).
The exclusiveness of the sentence is the impossibility of excitement, 1; investigations, judicial review and permission of the criminal; Cases regarding the person who has entered into force the verdict on the same charges.
Community of sentence is the obligation and strictness of the execution of its prescriptions by all government agencies, local governments, public associations, officials, other physical and lawyers throughout the Russian Federation (Article 392 of the Code of Criminal Procedure).
The non-execution of the sentence, the definitions or ruling of the court entails criminal liability provided for by Art. 315 of the Criminal Code of the Russian Federation.
The privacy of the sentence is the obligation of the conclusions of the court on established persons and facts contained in the judgment of the criminal case, for other vessels and other law enforcement bodies, considering and allowing the same actual circumstances regarding the same persons (Article 90 of the Code of Criminal Procedure ).
The court sentence in a criminal case is obligatory for the court who considers the case of civil law consequences (inaction) of a person in respect of whom the court sentence was made on issues whether this act had a place and was made by this person (Art. 61 Civil Procedure Code of the Russian Federation).
The execution of the sentence is the possibility of addressing the sentence to execution, as a rule, only after its entry into force.
The legitimate force of the sentence has subjective and objective limits.
Subjective limits of the sentence that entered into force,
are determined by the circle of persons specified in the prescriptions judicial decision (sentence).
Objective limits of the sentence, which entered into legal force,
restricted by the court of legal relations and the actual circumstances of the criminal case.
Questions arising and resolved under the execution of the sentence
In the criminal procedure stage of the execution of the sentence, a sufficiently large number of questions are allowed.
Questions to be resolved by the court under the execution of the sentence can be divided into two main groups:
1) issues subject to resolution in accordance with the requirements of criminal, criminal procedure and criminal laws;
2) Questions to be resolved in connection with the availability of doubts and ambiguities arising from the content of court decisions and arising when a sentence is executed.
These issues subject to consideration and permission in the execution stage are set forth in Art. 397 Code of Criminal Procedure.
The court considers and allows the following issues related to the execution of the sentence:
1) on compensation for harm to a rehabilitated person and the restoration of his labor, pension, housing and other rights in accordance with Part 5 of Art. 135 and part 1 Art. 138 Code of Criminal Procedure;
2) on the replacement of punishment by the convicted person in the case of malicious evasion From his serving:
a) fine - in accordance with Art. 46 of the Criminal Code of the Russian Federation;
b) mandatory work - In accordance with Art. 49 of the Criminal Code of the Russian Federation;
c) correctional work - in accordance with Art. 50 of the Criminal Code of the Russian Federation;
d) restrictions on freedom - in accordance with Art. 53 of the Criminal Code of the Russian Federation;
3) about the change of type correctional institutionappointed by the sentence of the court to the face convicted of imprisonment in accordance with Art. 78 and 140 PEC RF;
4) on the conditionally early release from serving the sentence in accordance with Art. 79 of the Criminal Code.
When analyzing this issue, it should be borne in mind that the Court is obliged to consider the petition of the convicted person on conditionally early release even when it is in the detention facility in connection with the involvement of it criminal responsibility in another criminal case;
4.1) on the abolition of landlord-early release - in accordance with Art. 79 of the Criminal Code of the Russian Federation;
5) on the replacement of an indispensable part of the punishment by a softer point of punishment in accordance with Art. 80 of the Criminal Code of the Russian Federation;
6) on the exemption from punishment due to the illness of the convicted person in accordance with Art. 81 of the Criminal Code of the Russian Federation.
The list of diseases and the procedure for medical examination of convicts for imprisonment and submitting them to exemption from serving a sentence due to severe illness are made in applications to the order of the Ministry of Health and Justice of the Russian Federation on exemption from serving the sentence of convicts for imprisonment due to severe bo -Lesign.
Several later, the leaders of these ministries signed an order, which approved the "List of medical contraindications to serving a sentence in certain localities of the Russian Federation convicted to imprisonment";
7) on the abolition of conditional condemnation or to extend the trial period in accordance with Art. 74 of the Criminal Code of the Russian Federation;
8) on cancellation either about the addition of assigned duties assigned to convicts in accordance with Art. 73 of the Criminal Code of the Russian Federation;
9) on exemption from serving a sentence due to the expiration of the limitations of the limitation of the indictment in accordance with Art. 83 of the Criminal Code of the Russian Federation;
10) on the execution of the sentence in the presence of other unfulfilled sentences, if it is not solved in the last time of the decision of the sentence in accordance with Art. 70 of the Criminal Code of the Russian Federation;
11) On the standings of detention time, as well as the time of stay in a medical institution in accordance with Art. 72, 103 and 104 of the Criminal Code of the Russian Federation;
12) on the extension, about changing or terminating the use of compulsory medical measures in accordance with Art. 102 and 104 of the Criminal Code of the Russian Federation;
13) on the exemption from punishment or mitigating the punishment due to the publication of a criminal law having a reverse force in accordance with Art. 10 of the Criminal Code;
14) to reduce the size of the deduction from the wage convicted to correctional work in accordance with Art. 44 PEC RF in case of deterioration of his material situation;
15) On clarification of doubts and ambiguities arising from the execution of a court sentence.
In the execution of the sentence, only such doubts and ambiguities arising from the deficiencies of the sentence or the emergence of other circumstances, which do not affect the creatures of the sentence and do not entail the deterioration of the provision of the convicted or justified.
These questions can be divided into two groups.
The first group includes issues due to the deficiencies of the sentence:
a) on the use of amnesty act, if its application is mandatory, and the court did not enter the discussion of this issue;
b) on the abolition of the preventive measure in cases where, when appropriate or condemned, it is not indicated on the cancellation of punishment in the sentence of the court;
c) about the abolition of measures to ensure civil law or confiscation of property, if, when issuing an exclusive sentence or refusal to the claim or non-separation of confiscation, these measures are not canceled;
d) on the standings of the prior detention period on the period of serving the sentence, if such a test is not made by the verdict of the court or inaccuracy is allowed when calculating it;
e) on the standings of the departed sentence when prescribing a sentence of several sentences, if such a test was not made in the verdict of the court or the offset of this term was performed inaccurately;
(e) On the fate of material evidence, if the fate of these evidence is not solved by the court in the sentence;
g) on \u200b\u200bdetermining the size and distribution of criminal procedural costs, if these questions did not receive permission to sentence;
h) about the fate of juvenile children of the convict left without supervision, and transfer them to the care of relatives or other individuals or institutions in cases where the court did not solve these issues in case of sentencing;
and) on the release of property from arrest in cases where the arrest is imposed on the property for which the recovery is not allowed by law;
k) about the clarification of the position or type of activity, if in the verdict of the court when prescribing a penalties in the form of deprivation of the right to occupy certain positions or to engage in certain activities, a position or type of activity was not exactly determined;
l) on the elimination of errors made in the verdict when writing a surname, name, patronymic or other biographical data of the convicted person, as well as also and arithmetic errors, if they are obvious and correcting them cannot cause doubt.
The second group consists of issues arising after the sentencing due to changes in the circumstances and conditions by the time of its execution:
a) unparallement in the execution of the sentence in a certain part, if the act of amnesty or pardon is condemned completely freed from punishment;
b) clarification of the list of things and items to be arrested into compensation of various property penalties;
c) the return of retained amounts from convicted to correctional work, if the sentence was subsequently canceled by a higher court and the work was discontinued after a partial or complete departure of convicted correctional work, etc.;
16) on the release of minors with the use of compulsory measures of the educational impact provided for in Part 2 of Art. 92 of the Criminal Code;
17) On the abolition of the postponement of serving the punishment by pregnant women and women with young children, in accordance with Art. 82 of the Criminal Code of the Russian Federation;
18) The conclusion of the convicted person who hindered in order to evade the departure of the fine, compulsory and corrective work, restrictions on freedom, to the consideration of the issue specified in paragraph 2 of Art. 397 Code of Criminal Procedure, but not more than 30 days;
19) on the replacement of an unnecessary part of the punishment by a softer point of punishment or exemption from punishment in the form of restrictions on the military service of a military personnel dismissed with military service, in the manner prescribed by Art. 148 PEC RF;
20) on the transfer of a citizen (subject) of a foreign state, convicted of imprisonment by the court of the Russian Federation, for serving a sentence to a state, a citizen (subject) of which condemned is;
21) recognition, procedure and conditions for the execution of a court sentence foreign statewho was convicted by a citizen of the Russian Federation transmitted to the Russian Federation for serving the sentence.
The stage of execution of the sentence also addresses questions about the deferment of the execution of the sentence and the removal of criminal record.
According to Art. 398 Code of Criminal Procedure, the execution of a sentence of the conviction of the person to mandatory executive workThe restriction of freedom, arrest or imprisonment may be delayed by a court for a certain period in the presence of one of the following grounds:
1) a convict disease that prevents serving a sentence - before his recovery;
2) pregnancy convicted or having minor children - before reaching the young age of 14 years old, except for the convicts for imprisonment for a period of more than five years for grave and especially serious crimes against the person;
3) The grave consequences or the threat of their occurrence for convicted or its close relatives caused by fire, other natural disaster, severe illness or death of the only working family member, other exceptional circumstances, - for the period established by the court, but not more than six months.
The payment of the fine may be delayed or installing for up to three years, if the immediate payment is impossible.
Removing a criminal record - early, before repaying the criminal record, the elimination of the state of the conviction by the court at the petition of the person who has served punishment.
Procedural procedure for resolving issues related to the execution of the sentence
In accordance with Art. 396 Code of Criminal Procedure Questions arising in the execution stage are permitted:
- the court decided by the sentence. If the verdict is provided in the place that the jurisdiction of the court does not apply to the verdict, then the questions relating to its jurisdiction are permitted by the court of the same level (link), and in its absence at the point of execution of the sentence - a higher court. In this case, a copy of the court order at the end of the sentence is directed to the court, which has been sentenced;
- the court at the place of serving the sentence or at the place of application of compulsory medical measures;
- court at the place of residence of the convict;
- court at the place of detention of the convicted person;
- the court, whose jurisdiction refers to a perfect crime, taking into account his qualifications and place of the last residence of the convict.
Questions related to the execution of the sentence, the judge permits solely at the court hearing.
In accordance with Art. 399 Code of Criminal Procedure Issues related to the execution of the sentence are considered by the court:
1) at the request of the rehabilitated - in the case specified in paragraph 1 of Art. 397 Code of Criminal Procedure;
2) at the request of the convicted person - in the cases specified in paragraph 4, 6, 9, 11-15 of Art. 397 and part 1 and 2 tbsp. 398 Code of Criminal Procedure.
At the same time, it is necessary to keep in mind the decision of the Constitutional Court of the Russian Federation, according to which the lack of a petition for the convict on bringing a sentence in accordance with the new criminal law (Article 10 of the Criminal Code of the Russian Federation) does not exempt officials from the responsibility of initiating before the court considering this issue.
In addition, the solution Constitutional Court The Russian Federation has established that in the presence of a request of a convicted court, the court is obliged to ensure its participation in consideration and permitting the issue of the conditionally early release of the convicted one from serving the sentence to present its position and submit the necessary evidence;
3) on the presentation of the internal affairs authority at the place of detention of the convicted person - in the case indicated in paragraph 18 of Art. 397;
4) taking into account the requirements of Art. 469-472 CPC - in the cases specified in paragraph 20 and 21 of Art. 397;
5) on the presentation of government agencies or authorities performing a punishment - in all other cases specified in Art. 397;
6) at the request of a legitimate representative or close relatives of the convicted person, his defender or the presentation of the prosecutor, in cases indicated in Art. 398 Code of Criminal Procedure.
At the court hearing the representative of the institution acting, or state BodyAccording to which the issue associated with the execution of punishment is allowed.
If the question is subject to permission regarding the execution of a civil action, then a civil plaintiff and a civil respondent may be caused at the court hearing.
If a convict participants at the court hearing, he is entitled to get acquainted with the materials submitted by other participants in the court to the court, to participate in their research, to declare taps and petitions, to give explanations, to submit additionally different documents.
His rights condemned can be carried out personally or with the help of a defender (lawyer).
At the court hearing, the prosecutor is entitled to participate in the execution of the sentence.
The court session begins with its discovery and declarations subject to judicial review and permit.
Then the court hears the report of the representative state institution or a body that submitted an appropriate presentation or an explanation of the applicant.
After that, the court examines the submitted materials, headers the explanations of the persons who came to the court hearing, the opinion of the prosecutor, if he participates in the court hearing.
The court session is completed by the removal of the judge in the advisory room to make a judicial resolution.
With certain features, consideration of a petition for the removal of criminal record (Article 400 of the Code of Criminal Procedure) has been possessed.
The question of the removal of criminal record is permitted by the judge or the global judge in criminal cases referred to their jurisdiction.
Participation at the court session of the person in respect of which the petition for the removal of criminal record is considered.
The prosecutor is notified about the received petition, whose participation at the court session is not mandatory.
Consideration of the petition begins with the hearing of the explanation of the person who applied to the court with the petition, after which the materials presented were investigated and the opinions of persons invited and appeared at the court hearing are heard.
In case of refusal to remove the conviction, the re-application of this may be initiated before the court no earlier than the expiration of one year from the date of the decision of the judge on the refusal to satisfy the appropriate application.
The decision of the judge adopted at the stage of execution of the sentence enters legitimate force under the general rules established by the criminal procedure law.
According to Art. 401 Code of Criminal Procedure The judge, adopted in the execution stage, may be appealed by the participants in the criminal proceedings in the cassation procedure established by chapters 43 and 45 of the Code of Criminal Procedure of the Russian Federation.
Criminal Procedure: Execution of the sentence
Introduction 3.
Chapter 1. Concept, meaning and subjects of the stage
executions of sentence 5.
1.1. Configuration and value of the execution stage of the sentence 5
1.2.Subects stage of the execution of the sentence 12
Chapter 2. Manufacturing on consideration and resolution
issues related to the execution of sentences 13
Chapter 3. Questions permitted by the court in the execution of the sentence 21
Conclusion 27.
References 29.
Definition of SC in criminal matters Supreme Court RF 30.
Introduction
The list of questions resolved by the court under the execution of the sentence is given in the Criminal Code of the Russian Federation, the Criminal Procedure and Code of Criminal Procedure of the Russian Federation. Currently, such articles are about twenty-four. No other state bodies can take on the function of resolving these issues. It is prerogative only for ships. The diversity and the heterogeneity of the issues entail and differences in the nature of the actions of the judges necessary for their permission. The court's actions (judges) can be divided into three groups. The first group of action may be called "procedural - administrative". It should be attributed to the court's courts of two types: the actions of the court associated with the conversion of a sentence, which are to send an order to execute a sentence along with its copy of the authority to which the duty of bringing the sentence is entrusted; Compulsory tracking by the court in the execution of the sentence, definitions or decisions by these authorized bodies.
These court actions do not bear the nature of the procedural in pure form: the subject and method legal regulation, especially in the second case, not criminally procedural, and worn features, more peculiar administrative legal relations. The second actions are related to the establishment, research and assessment of various facts in its specific content, which is absolutely not related to the circumstances of the crime itself and the sentence itself, but directly indicated by the laws (Code of the Russian Federation, PEC, Code of Criminal Procedure), which should be solved in the stage Executions of the sentence. Such a legislator refers questions about the deferment of punishment, on conditionally - early release from punishment, on the transfer of a convicted one from the educational colony to a correctional colony and many others. The final procedural solution in these cases will be the judge's decision. The third group of actions is already associated with the "invasion" of the judge to the sentence itself. This is a permit under the execution stage of the sentence of any kind of doubt and ambiguities arising from its execution, including the application of a criminal law. The first group of judicial actions is actions carried out in non-procedural procedure. They are not accompanied by the adoption of procedurally significant decisions and do not require their procedural decoration by the judge by the court definition or otherwise. The order for the execution of the sentence is impossible to consider the final procedural document in the criminal process. Especially one cannot consider the procedural solutions those documents that appear in the order of Art. 394 and 395 of the Code of Criminal Procedure and rather do not apply to proceed
dreamings, and to office work in the courts. The actions of the second and third groups are actions carried out in the manner prescribed by criminal procedure law, and requiring a final procedure decision on the judge. It is expressed in an independent procedural document - in the judge's decision. And since, according to the results of a comprehensive, complete and objective study and permit essentially a question of a judge (court), the final procedural document In the form of a resolution or definition that meet the requirements of legality, validity and motivation, here it is possible to communicate with full right to send justice.
In addition, the actions of the second and third groups also have other attributes inherent in justice.
To such attributes (characteristic features) include:
for the activities of the Court, in solving these issues, a court session is characterized;
here are the expression of the principles of the criminal procedure: the implementation of justice only by the court, the independence of judges and the subordination of their only law, the publicity of the trial;
A wide range of participants in the process: a convicted, civil plaintiff, judge, prosecutor, etc.
Chapter 1. Concept, meaning and subjects of the stage of execution of the sentence.
1.1. The concept and value of the execution stage of the sentence
The execution of the sentence consists in implementing solutions contained in it. Various bodies and officials take part in this activity. However, the execution of the sentence as the stage of the criminal procedure includes only the activities of the court and other interested persons by the procedural law, according to: a) agreement of the sentence for execution; b) the direct execution of exclusive sentences or sentences, exempting the defendant from punishment in terms of immediate release of him from custody; c) control over the sentencing by execution; d) resolution issues related to the execution of the sentence.
This court activity is regulated by procedural norms, is based on the unified principles of the criminal process and is aimed at achieving common tasks of criminal proceedings. The activities of the court on the execution of the sentence represents an integral part of the criminal process, is one of its stages. The value of this stage of the criminal process is determined by challenges in front of it: in a timely manner to implement all decisions taken in the sentence; carry out control over the appeal of the sentence to execution; make appropriate changes in order and conditions for serving convicted penalties; Allow all kinds of doubts and ambiguities arising from the execution of the sentence.
The peculiarity of the execution stage is that if in other stages, the initial and final moments and the sequence of procedural actions are clearly defined, the execution of the sentence is a continuous stage. It begins with the entry of the sentence into legal force, after which it is a mandatory effect of his appeal to execution, i.e. The actual execution of the sentence begins. The emergence of the stage of the execution of the sentence (once or several times) depends on whether the need for procedural resolution of the issues provided for by Art. 396, 404 CPC. Thus, in the execution of the sentence judicial activity It may occur several times, stop and re-arise. Features procedural order The execution stages are also manifested in the following general provisions: The obligation of sentences, definitions and decisions of the courts (judges), entered into force, for all state and public enterprises, institutions and organizations, officials and citizens throughout Russia (Art. 392 of the Code of Criminal Procedure); The timeliness of the sentencing is carried out; consideration of materials under the execution stage of the courts specified in the law (Article 396 of the Code of Criminal Procedure); consideration of materials on the presentation of bodies for the execution of punishment, observation commissions; The invariance of the sentence and the inadmissibility of changes in it and additions affecting its being. The Criminal Procedure provides for only those necessary procedural actions that require a court decision in this stage. The order of serving the sentence and the actual side of the execution of the sentence lie on the bodies of the penitentiary system. At the same time, state bodies, which entrusted the execution of the sentence, are involved in the scope of criminal procedure relations (for example, in Art. 399 of the Code, it is indicated that issues related to the execution of the sentence are considered by the court, in particular, on the submission of a institution or authority, acting). In the execution of the sentence, it may be necessary to take several court decisions (for example, the execution of the sentence in the presence of other unfulfilled sentences and conditionally early liberation), and in other cases such decisions are not required at all (serving the appointed penalties completely). Questions that arise under the execution of the sentence are not a verification of its legality and validity, and they relate only to issues of execution of the court sentence. The entry of a sentence into legal force is the basis for its execution. If the sentence is not appealing to the parties, it enters into legal force after the expiration of the ten-day period allotted on appeal and cassation appeal (Art. 356 of the Code of Criminal Procedure). The sentence of the World Judge may be appealed in appeal, and if the deadlines have expired, it enters into legal force. If the verdict was appealed on appeal and the court decision, the appeal, was filed appealSuch a decision of the global judge comes into force after the decision is made by the cassation instance. When it changes appeal Court The sentence of the magistrate or his abolition and the submission of a new sentence of the appeal verdict comes into force upon expiration of its appeal, unless the complaint is submitted to the cassation instance. In case of adoption by the court of first instance, the decision to restore the missed deadline for the appeal or cassation appeal, the entry into force of the court's sentence is postponed before the decision of the appeal or cassation instance. The date of the cassation decision of the decision is a day of sentencing to force. If the sentence is canceled and the criminal case is aimed at a new judicial consideration, the date of entry into force will be the day when the term for a cassation appeal, or the day of the criminal case in the cassation instance after its new consideration, if a cassation appeal took place.
The sentence is a single judicial document and enters into legal force at the same time for all convicts, if several people took place in a criminal case, despite the fact that he may be not all of them. The execution of the sentence is entrusted to the court of first instance. After the sentence entry into force, it should be executed within three days. The same period for the execution of the sentence was provided by the court of first instance after the return of the criminal case from the appellate or cassation instance. The procedure for the entry into force of decisions and court definitions has its own specifics. Articles 323 and 354 of the Code of Criminal Procedure are provided for the same deadlines for the appeal of the definitions (decrees) of the court, as in appealing the sentence. This means that the definition (decree) of the court of the first or appellate instance enters into force and is executed after the expiration of its appeal in cassation. If the legality of the definition (resolution) was checked in a cassation order, then the day of the cassation determination is the day of the entry of the definition (decree) into legal force. It should be borne in mind that the law lists cases when the definitions of the court are not subject to appeal (part 5 of Art. 325, Part 5 of Art. 348, Art. 352, Part 5 of Art. 355 CPC). Under these circumstances, the definition (resolution) enters into legal force immediately, i.e. It should be started by execution immediately after his announcement of his exit of judges from the deliberative room or after the decision of the court at the court hearing, when the law provides for the possibility of making such decisions without removing judges to the accommodation room. In accordance with Part 3 of Art. 391 Code definition (decree) of the court on the termination of a criminal case, adopted during the court session, is subject to immediate execution in the part that concerns the liberation of the accused or defendant from custody. The revision of the cassation determination is possible in the order of ch. 48, 49 Code, however, it should be borne in mind that on the grounds worsening the position of the accused or defendant, the revision of the cassation definition is not allowed (art. 405 of the Code of Criminal Procedure), unless new or newly discovered circumstances are established (Art. 413 of the Code). The entry of the sentence (definition, decree) of the Court to legal effect means the obligation of its execution by all persons and bodies, regardless of departmental or other affiliation. The execution of these court decisions is assigned to those organs and persons who concern the execution itself. These may be government bodies, local governments, public associations, officials, other physical and legal entities. The strictness of the execution of a court decision means the execution of this solution in exact accordance with its text. For example, if a surname, name, patronymic of a person should be subjected to a tribute to the Court of Forced Drive, which should be delivered to the Court for this definition (for example, to clarify the place of stay exposed to the drive).
Criminal liability for the non-fulfillment of the sentence (definition, decree) of the court occurs when establishing maliciousness (after re-prescribing the court) non-fulfillment of a court decision or when taking measures that prevent its execution. Such responsibility may be subjected to representatives of power, civil servants, employees of local governments, state or municipal Institutions, commercial or other organization. Appeal to the execution of the sentence (definition, decisions) is entrusted to the court. The court, adopting the indicated decisions, sends certain documents to the authority directly by the executive sentence or other court decisions. For example, if the defendant is sentenced to serving a sentence in the form of deprivation of freedom really and is contained in the investigative insulator, then the court of first instance sends an order to execute the sentence of the administration of the investigative insulator, and if the convicted person was not detained, the head of the district (urban) department of the interior. Authorities and officials who are sent to the order of the execution of the sentence in various types of punishment are indicated in the PEC (Art. 16, 33, 34, 39, 48, 75). If the verdict or the definition of the magistrate was considered on appeal regarding the detention, the Court of Appeal is obliged to inform the institution or body to be entrusted with the execution of punishment, about the decision taken with respect to the person contained in custody. If the verdict of the court of the first or appellate instance undergoes a change in the cassation instance, then a copy of the definition of cassation must be attached to the execution of the sentence in addition to a sentence. In the execution of the sentence, in which several persons were convicted, an order of execution of a sentence and a copy of the sentence, and, if necessary, a copy of the definition of cassation must be directed to the authority executing a sentence for each convicted person.
The Code of Criminal Code does not indicate the deadlines during which the institution or body to be entrusted with punishment should notify the court on the execution of punishment and the place of serving the sentence of the convict. In part 5 tbsp. 393 Code of Code is indicated on the immediate notice of execution, and in part 6 of the same article - on the notice of the place of serving the sentence. In these cases, it should be processed from the common time set by the PEC. In art. 75 PECs it is indicated that convicts for imprisonment are sent to serving a sentence no later than 10 days from the date of receipt by the administration of the investigative insulator notification of the sentence of the sentence into legal force. Consequently, immediately after the execution of the court order on the execution of the conviction, the administration of the investigative insulator should notify the court on the execution of the sentence in the part of the penalties appointed and report, which institution is convicted to send a sentence. A copy of the exclusive sentence, in addition to the persons specified in Art. 312 UPC, at the request of the justified can be directed at the place of its work, study or place of residence. Definitions (decisions) of the court on their entry into force are subject to execution according to the rules of the execution of the sentence.
In addition to the court, the verdict, the administration of the investigative insulator should inform the place of serving the sentence of one of his close relatives. If the convicted person has no close relatives, other relatives are notified. The concepts of a close relative and relative are given in Art. 5 CPC. The notice is made on the choice of the convicted person (part 2 of Art. 75 PEC). In addition, the Administration of the institution or body that acting a punishment is obliged to send a sentence to the place of interest to the place of sentence, no matter from the date of arrival, to send a notice to one of the condemned relatives, again according to his choice (Art. 17 PEC). The order of the direction of convicts for serving a sentence into correctional and educational institutions is determined in accordance with the norms of the criminal and executive legislation of the Central Law of the Ministry of Justice of the Russian Federation. If the sentence resolved the question of satisfaction of a civil action, this is notified by the civil plaintiff and a civil respondent. At the same time, a copy of the sentence is sent to the elder bailiff of the district (interdistrict) division of bailiffs of the management of justice to the subject of the Russian Federation. In accordance with Art. 9 of the Federal Law of July 21, 1997. N119-FZ "On Enforcement Proceedings" bailiff-Filler for three days from the date of receipt to it is initiated executive production. It should be borne in mind that the court's verdict in terms of the execution of a civil claim may be presented for execution within three years since the sentence entry into force (Article 14 of the title). After the proclaiming of the sentence and before his execution close relatives (relatives) a date with the convict may be provided. The order for permission to date is given by the presiding party in a criminal case or chairman of the court, which must be convinced of the role of a person who is allowed.
A relative (a close relative) should apply with a written petition for the permission of a date. Permission is issued by the court, fastens with the signature officer, as a rule, the judge or chairman of the court, and the stamp of the court. It seems that such a date can be resolved and the judge or the head of the court, which is considered in cassation, especially when the convicted, contained in custody, is stealing to the court of cassation to participate in the consideration of the criminal case, and relatives live at the location of the court of cassation or We arrived at the court of cassation instance and participated or attended with the cassation consideration of the case. OPC The number of dates in the specified period does not determine, however, the convicted person applies to the action of Art. 18 of the Federal Law of July 15, 1995 N 103-FZ "On the detention of suspected and accused of committing crimes", according to which it can have no more than two dates per month.
1.2.Subjects stage execution stage
The subjects of the procedural activity at this stage of the process may be a prosecutor, convicted, other participants in the trial, administrative authorities and representatives of the public. The prosecutor oversees the observance of laws in the execution of punishment and other measures of the forced nature appointed by the court. The convicted and other participants in the court proceedings can participate in court sessions when considering issues related to the execution of the sentence, in order to protect their rights and legitimate interests. Administrative authorities Perforce the sentence practically. In this part, their activities are not included in the step of execution of the sentence. However, in cases provided for by the Criminal Procedure Law, representatives of these bodies participate in court sessions in solving issues related to the privileges of the sentence, and therefore become subjects of criminal procedure relations. Activities, the public on the initiation of the court possible under the law of petitions (for example, on precluded early, early release, the replacement of not the subsequent part of the punishment of a softer punishment, etc.) and the participation of its representatives at the court session is included in the execution of the sentence.
Chapter 2. Procedure for consideration and resolving issues related to the execution of the sentence
The issues considered by the courts in the order of the execution of the sentence are indicated in Art. 397 CPC. The jurisdiction of the permitted issues is determined on the basis of the principles of territoriality and the category of issues themselves. Questions related to the execution of the sentence are permitted at the court session of the judge alone. At the court session is the protocol.
The first group of issues is not subject to the punishment in the form of imprisonment, although a number of moments are associated with the restriction of freedom of convict (replacement of a fine arrest, replacing correctional work by arrest or deprivation of freedom, etc.). The Code of Criminal Procedure (Ch. 18) provides for a new institution - rehabilitation, in connection with the court who has been sentenced to solve issues related to reimbursement of harm to rehabilitated and restoring its rights (paragraph 1 of Article 397 of the Code of Criminal Procedure). The same court entrusted the obligation to consider issues related to the time of detention of detention (clause 11 of Article 397 of the Code of Criminal Procedure), a decrease in the amount of deductions from wages When convicted of accused to correctional work (paragraph 14 of Art. 397 of the Code of Criminal Procedure).
In judicial practice, there are cases of execution of a sentence in a place that the jurisdiction of the court does not apply to the sentence. In this case, according to Part 2 of Art. 396 Code of Criminal Procedure, the questions specified in Part 1 of this article are permitted by the court of the same level at the end of the sentence or a higher court. A copy of this resolution should be sent to the court, the sentence. Another group of issues related to improving the situation of the convicted person in terms of execution of punishment is solved by the court at the place of serving the sentence of convicts. These issues are associated with parole (clause 4 of Article 397 of the Code of Criminal Procedure), a change in the type of correctional institution (clause 3 of Article 397 of the Code), the replacement of non-subsequent part of the punishment by a softer point of punishment (clause 5 of Article 397 of the Code of Criminal Procedure , exemption from punishment or softening punishment by virtue of Art. 10 of the Criminal Code (paragraph 13 of Art. 397 of the Code of Criminal Procedure), the conclusion of the convicted person who hindered in order to evade the disposal of the sentence not related to the deprivation of freedom (paragraph 18 of Art. 397 of the Code of Criminal Procedure), the replacement of the non-serving part of the punishment exemption from the punishment of the serviceman (paragraph 19 of Art. 397 of the Code of Criminal Procedure).
In connection with Federal law from December 8, 2003. The N162-FZ changes and additions in the Criminal Code, according to which the replacement of punishment, which is not associated with imprisonment, from the serving of which convicted evade itself is replaced in the manner prescribed by the relevant articles of the Criminal Code and the PEC, changed and Art. 397 CPC. In sub. "A" - "G" of paragraph 2 of Art. The 397 Code of Criminal Procedure currently contains a reference to the courts of questions of the replacement of punishment, from whose disposal is shied out by the convict, according to the rules established by the norms of the Criminal Code. Excluding from paragraph 4 of Art. 397 Code of Criminal Procedure for consideration by the courts of cases about the abolition of conditionally and early liberation from serving the sentence, the legislator supplemented Art. 397 New clause 4.1, which determined that the abolition of conditionally and early liberation should be solved in accordance with Art. 79 CC. Early early release should take place (in the previous edition of Art. 79 of the Criminal Code was indicated - "can be released", i.e. the decision of the issue depended on the administration of the institution), if the court will be recognized that the person does not need a person for his correction Complete disposal of punishment appointed by the court. QUESTIONS Cancellation of landlords should be considered independently, in connection with which supplements were taken to Art. 397 CPC (p. 4.1). In addition, in Art. 79 of the Criminal Code made clarifications regarding the decision of the conditionally early liberation of persons sentenced to life imprisonment. Conditional and early release to such persons is applied after serving at least 25 years of imprisonment and, provided that the convict for the previous three years has not been malicious violations of the established procedure for serving the sentence. The person who has committed a new grievous or particularly serious crime in the period of serving the life imprisonment, the emerging early release is not subject to (part 5, Article 79 of the Criminal Code. In h. 4 tbsp. The 396 Code of Criminal Procedure has a list of issues that can be considered by the court at the place of residence of the convict. These are questions related to the execution of a sentence against the person who has appointed punishment to which it is necessary to consider conditional (Art. 73 of the Criminal Procedure): on the abolition of conditionally early liberation (clause 4.1 of Art. 397 of the Code of Criminal Procedure), on the abolition of conditional condemnation or extension of the probation . 7, Art. 397 of the Code of Criminal Procedure), on the cancellation or addition of duties assigned to the convicted person (paragraph 8 of Art. 397 of the Code of Criminal Procedure) and the cancellation of the sentence (paragraph 17 of Art. 397 of the Code of PCC).
According to paragraph 3 of Art. 397 Code of Criminal Procedure, the court in connection with the execution of the sentence solves the issue of changing the type of correctional institution appointed by the court sentence convicted to imprisonment, in accordance with Art. 78, 140 PEC. It should be borne in mind that under the change in the type of correctional institution also means the translation of the person who has reached an eighteen-year-old age, from the educational colony in correctional under the conditions provided for by Art. 140 PEC. In solving issues related to the exemption from the punishment of the convicted person in connection with the disease (clause 6 of Article 397 of the Code of Criminal Procedure), the issues of exemption from serving the punishment of persons who received disability during the period of serving the sentence, which prevents further punishment (for example, in the form of correctional or mandatory work, restrictions on freedom, etc.).
The court decides on the explanation of doubts and ambiguities arising from the execution of the sentence (paragraph 15 of Art. 397 of the Code of Criminal Procedure), i.e., without affecting the essence of the sentence, eliminates the emerging difficulties in its execution (for example, eliminates an arithmetic error made when counting time Starting a sentence of convicts in custody as a preventive measure before the resolution of the sentence). When solving the court of questions about the release of a minor with the use of forced measures of educational impact (clause 16 of article 397 of the Code of Criminal Procedure), it should be refer to Article 92 of the Criminal Code, which indicates that minor to a minorconvicted for committing a crime small or middle severityInstead of criminal punishment, forced measures of the educational effects provided for in Part 2 of Art were can be applied. 90 of the Criminal Code, and when it condemns it to imprisonment for the crime of moderate severity or for a serious crime, a minor can be exempted from punishment and placed in a special educational institution (a closed type of education management body). In accordance with Part 3, 4 Art. 92 Course Stay of a minor in the specified institution may be discontinued if it is established that it does not need to further apply this measure or can be extended if it is necessary to complete the general education or professional training of a minor. In addition, it should be remembered that Art. 92 of the Criminal Code is complemented by Part 5, which lists articles of the special part of the Criminal Code about the crimes related to the category of serious, with respect to which it is not possible to exemplate from punishment in the order of Part 2 of Art. 92 CC.
In art. 397 CPC contains a general list of issues that are resolved in the execution of the sentence. The order of their permission is established by Art. 399 Code of Criminal Procedure, according to which issues of rehabilitation (clause 1 of Article 397 of the Code of Criminal Procedure) are resolved by the request of the rehabilitated, the questions specified in paragraph 4, 6, 9, 11-15 of Art. 397 and part 1, 2 tbsp. 398 Code of Criminal Procedure, - by the petition of the convicted person, the issues provided for in paragraph 20, 21 of Art. 397 Code of Criminal Procedure - taking into account the requirements of Article 469-472 Code of Criminal Procedure, issues related to the detention of a convicted person who hidden in order to avoid punishment in the form of a fine, mandatory work, correctional work or restrictions on freedom - on the presentation of the internal affairs authority The place of detention of the convicted person (according to the general rules, such detention can not exceed 48 hours, but it can be extended by the court in the necessary cases for a period of no more than 30 days (paragraph 18 of Art. 397 of the Code of Criminal Procedure)), all other issues specified in Art. 397 Code of Criminal Procedure, - on the presentation of the institution or the authority acting. At the same time, the procedure for resolving issues of delaying the execution of the sentence (Article 398) and the removal of criminal record (Article 400) is highlighted in the norms of individual articles of the Code, which is associated with the peculiarities of their permission. Article 398 of the Code of Criminal Procedure defined the procedure for delaying the execution of the sentence in the condemnation of a person to mandatory work, correctional work, the restriction of freedom, arrest and imprisonment.
Unlike Art. 81 of the Criminal Code, which provides for the release of a convicted person from punishment due to severe illness, in paragraph 1 of Part 1 of Art. 398 Code of Criminal Code of the sentence is simply a disease that prevents serving a sentence that must be confirmed by the relevant medical conclusion. If a disease is found, which prevents from serving the punishment, in persons serving the punishment in places in prison, the joint order of the Ministry of Health of the Russian Federation and the Ministry of Justice of the Russian Federation dated August 9, 2001 N311 / 242 "On the release from serving the sentence of convicts for imprisonment in Communication with severe illness, "in the remaining cases, the expert opinion of specialists should be submitted that the disease detected by the convicted person is an obstacle to the further serving of punishment. The procedure for liberation from punishment on illness is also regulated by the Decree of the Government of the Russian Federation of February 6, 2004 N 54 "On the medical examination of the convicts submitted to the exemption from serving a sentence in connection with the disease", which approved the rules for medical examination of convicts and a list of diseases that impede the serving of punishment . In art. 82 of the Criminal Code provides for the possibility of delaying the execution of the sentence by convicted pregnant women and women with children under the age of 14, except for the convicts for imprisonment for more than five years for grave and especially serious crimes against the person. Based on the text Art. 398 OPC Such a delay can be applied to women convicted of both imprisonment and other types of punishment specified in Part 1 of this article.
The possibility of delaying the legislator also binds with the grave consequences or the threat of their occurrence for the convicted or its close relatives caused by the circumstances, which are indicated in paragraph 3 of Part 1 of Art. 398 Code of Code, which should be established by the court and confirmed by the appropriate appropriate official documents.
The deadline for delaying the execution of the sentence depends on the basis of its application. So, the delay in the disease is provided before recovered by the convicted person, on pregnancy or with the presence of young children - until the youngest child of age is 14 years old, in the presence of grave consequences - up to six months. In h. 2 tbsp. 398 OPC Separately stipulated the possibility of a delay or installment of the execution of punishment in the form of a fine. The execution of this type of punishment by the court may be delayed or declared for up to three years. Meanwhile, in part 3 of Art. 46 of the Criminal Code indicate that the fine is like criminal penalty It may be appointed by a court with installments by certain parts for up to three years. The deferment of the payment of the fine does not indicate the material law. Part 3 Art. The 398 Code of Code limits the circle of persons who can apply to the court with a petition for the deferment of the execution of the sentence. Such persons are convicted, his legal representative, close relatives, defender or the prosecutor. It seems that if those listed in part 1 of Art. 398 Code of Code The circumstances will be established by the court before the resolution of the sentence, the delay of the execution of the sentence can be provided directly as a sentence. At the same time, deferred motives must be set forth in the descriptive-motivative part of the sentence, and the decision on a delay is in its operative part.
Part 2 Art. The 399 Code of Code determines the circle of persons who can participate in the court session in solving issues related to the execution of the sentence. The participation of the prosecutor at the same time is optional. The convict is entitled to declare a petition for his participation in consideration of a particular issue, but the decision makes a court that is entitled to satisfy the petition or refuse to satisfy it, motivating its refusal in the ruling. A convicts participating in the court session may be granted the right to meet the materials of the case, to declare the participants of the process and other petitions, to give explanations, to submit additional materials, use the services of a defender.
The order of the court session and the decision of the decision is regulated by the 7th century. 399 CPC. Judge when resolving those specified in Art. 397, 398 CPC issues organizes and conducts a process, asks clarifying questions (all materials of the case in the court session reports the party applied to the presentation or petition), listens to the explanations of the persons who appeared in the process, examines the submitted materials, listen to the opinion of the prosecutor (subject to its participation In the meeting), after which it takes a ruling. The question of the removal of criminal record is regulated by Art. 400 CPC.
With a petition for removal of criminal record in accordance with Part 5 of Art. 86 of the Criminal Code of the Court can only be accessed by the sentenced to the expiration of its repayment. Appeal with such a petition by other persons or organizations by law is not provided. The defendant assumes the need to represent the necessary materials indicating its impeccable behavior. At its request, the court may request the necessary materials if the convicted person does not have the ability to submit them to independently. When preparing materials and petitions to court, a person who has served a punishment may, at his request, use the services of a lawyer, until concluding a representative office agreement at the court hearing, but the petition itself can only be submitted by a person who has served punishment. The specified petition can be considered as federal and the global judge in criminal cases referred to its jurisdiction, at the place of residence of the person who applied to the petition. The law has established a mandatory participation in the court session of the person who applied to the petition. About the received petition is notified by the prosecutor, which has the right to participate in the court session. Other persons may be invited to the court session if the court considers it necessary to listen to them at the court hearing. In Part 4 of Article 400 of the Code of Criminal Procedure established the procedure for consideration of such a petition. According to the results of his consideration, the judge makes a decree. Code of Criminal Procedure (Part 5 of Article 400) provides for the possibility of re-appealing to court with a petition for removal of criminal record, if the initial petition is rejected. Repeated application with the petition is possible at the expiration of one year from the date of the decision to refuse to satisfy the petition.
In accordance with general Principle Appeals of any decisions of the court associated with violations of the rights and freedoms of citizens (Article 123 of the Code of Criminal Procedure), the judge's decisions made in the order of execution of the sentence can also be appealed in cassation. It should be borne in mind that the decision of the magistrate in this case appeals on appeal.
The procedure for appealing such decisions is governed by the rules established by Chapter.43, 45 of the Code of Criminal Procedure.
Chapter 3. Questions permitted by the court when performing
sentence
Article 397 of the Code of Criminal Procedure Groups issues permitted under the execution of the sentence, and depending on whether the judge of which court consider it (the sentenced, at the place of serving the sentence or the place of work of the convicted, at the place of residence of the convict). By general rule The verdict is enforced immediately on his entry into force. Defigure execution of the sentence. The sentencing execution delay is an exception to this rule and is allowed only in cases provided for by laws. The delay of the sentence is possible when the face is condemned to the deprivation of freedom or correctional work at one of the following grounds: 1) severe illness of a convicted person who prevents the serving of punishment - before his recovery; 2) pregnancy or the presence of a convicted woman of children under the age of eight years - until the youngest child is achieved, except for the convicts for imprisonment for a period of over five years for grave and especially serious crimes against the personality; 3) When an immediate punishment can entail serious consequences for the convicted or his family due to a fire or other natural disasters, a serious illness, the death of a single able-bodied family member or other exceptional circumstances - for the period established by the court, but not more than three months. The law admits a delay in the execution of the sentence against the convicted person for any crime. However, solving this issue, the court takes into account the personality of the convicted and the nature of the crime committed. The question of delaying the execution of the sentence, the court decides on the petition of the convicted person legal representativesClose relatives, defender or by the presentation of the prosecutor. In solving the issue of granting a delay in connection with severe illness, the court must establish not only the fact of the disease, but also that it prevents the serving of punishment. This circumstance is confirmed by the certificate medical institution Or the conclusion of an expert. According to recovery, the sentence is subject to immediate execution. The presence of pregnancy or young children should be confirmed by a certificate of a medical institution or a child's birth certificate. In addition, it is necessary to establish that children are dependent and educated. A sense to a fine is obliged to pay it within 30 days from the date of sentence entry into force. If the convicted person does not have the opportunity to pay a fine one, the court at the request of the convicted person and the conclusion of a bailiff may delay or build a fine for a period of up to one year. In the deferment of the payment of the fine, the execution of the sentence is transferred to the time specified by the court and the amount of the fine at the occurrence of the term is fully paid, and when installments, it is carried out in parts during specified by the court term. Exemption from punishment and softening the punishment due to the publication of a criminal law. In accordance with Art. 10 of the Criminal Code of the Russian Federation, the criminal law, eliminating the crime of act, mitigating the punishment or otherwise, the improving position of the person who committed the crime has inverse, that is, it applies to persons who have made appropriate acts before the entry into force of such a law, including those who offer punishment or departing, but having a criminal record. It follows from this that if such a criminal law will be adopted in the execution of the sentence, then the judge on the application of a convicted person either on the presentation of the prosecutor, the authority, the execution of punishment, or the penitentist, decides, the issue of the release of the person from punishment or mitigate the punishment.
Exemption from punishment due to illness, parole. The convict may be exempted from punishment due, with a disease, in two grounds: if he has a mental disorder during his serving, depriving him to realize the actual nature of his actions (inaction) or lead them; If he fell ill with a severe illness that prevents serving a sentence. The convict who had a mental disorder, indicating his insanity, is exempt from the further serving of the sentence of the judge based on the submission of the authority of the authority to the execution of punishment and the conclusion medical commission. If the mental disorder of the convict is a danger to him and others, the court may appoint; He is forced medical measures. Solving this question regarding persons with severe (not mental) disease, the judge takes into account its character, the moment of the offensive and finds out whether this disease prevents the further punishment. In addition, the severity is taken into account perfect crime, the personality of the convict, his past convictions, the degree of correction, etc. in the case when convicted to correctional work will be in installed manner It was recognized as a disabled person of the first or second group, the judge frees it from punishment on the submission of the body by the execution of punishment, and on the conclusion of a medical and labor expert commission. Conditional early release can only be applied to the convicted person who departed stipulated by law Part of the punishment, approximate behavior proved its correction and does not need to be further serving this punishment (Art. 79 of the Criminal Code). A person serving imprisonment for a crime of a small or moderate severity, the court, taking into account his behavior, can be replaced by a softer point of punishment. In this case, the person can be fully or partially freed from the additional type of punishment. These issues are considered by the judge at the place of serving the convicted penalty. The basis for their consideration is the submission of a specialized state body, which monitors the behavior of convicts, and in relation to the military personnel - the presentation of the command of the military unit, or the institution. The judge makes a reasoned decree, a copy of which is sent to court, Decided, and in a criminalist inspection at the place of residence, elected convicted. In case of refusal of the judge in the condition and early release or replacement of the non-subsequent part of the punishment, it is possible to re-enter the court on any of these issues, not earlier than six months from the day, when the court decision was made on the refusal (Art. 175 PEC).
Changes in the conditions of the detention of persons convicted of imprisonment during serving the sentence. The conditions of the content of convicts within one correctional institution vary by decision of its chief, and the type of correctional institution - by the court decision. Translation of the prisoner from prison to a correctional colony, from a correctional colony of common and strict regime The colony-settlement and the opposite is made by the judge on the submission of the administration of a correctional institution agreed with the criminalist inspection at the place of serving the sentence of the convicted person (Art. 78 PEC). In case of refusal to change the convicted type of a correctional institution, this issue may be considered re-, but not earlier than six months from the day when the refusal was resolved.
Replacing correctional work, fine, mandatory work and restrictions on freedom by other types of punishment. If convicted to correctional work is maliciously evaded from serving this punishment, the court on the presentation of a criminalist inspection may replace it with an unnecessary part of the restriction of freedom, arrest or imprisonment at the rate of one day of restriction of freedom in one day of correctional work, one day of arrest in two days of correctional work or one day of imprisonment in three days of correctional work (Art. 50 of the Criminal Code of the Russian Federation).
The face that has not paid a penalty in set time And hiding its income and property from forced recovery is recognized as maliciously evading the payment of fine. For such persons, the bailiff sends an idea of \u200b\u200bthe replacement of a fine by another point of punishment. The judge can replace the penalty with the mandatory work of correctional work or arrest, respectively, the size of the prescribed fine within the limits provided for by the criminal law for these types of sentences (Article 46 of the Criminal Code of the Russian Federation, Article 32 of the Russian Federation). In the case of malicious evasion of the convicted of obligatory, the court replaces them, on the presentation of a criminalist inspection, restricting freedom or arrest. At the same time, the departing time of mandatory work is counted within the limitation of freedom or arrest at the rate of one day of restriction of freedom or arrest for eight hours of mandatory work (Art. 49 of the Criminal Code of the Russian Federation). In the presence of data that condemned to the restriction of freedom is maliciously evaded from serving this punishment, i.e., selfless good reasons Leaves the territory of the correctional center, it is replaced by imprisonment for the period of limitation of freedom appointed by the court sentence. At the same time, the departure of the restriction of freedom is counted on the period of imprisonment at the rate of the day per day (art. 53 of the Criminal Code).
Execution of the sentence in the presence of other unfulfilled sentences. In the event that there are several unfulfilled sentences against the convicted person, which was not known to the court, the judge of this or the trial of the sentence, at the end of the sentence, is obliged to apply to a convicted penalty for all these sentences, guided by Art. 69-71 of the Criminal Code of the Russian Federation. If a total time Punishment may exceed three years in prison, this issue is considered by the court as part of the judge and two people's assessors. Resolution of all kinds of doubts and ambiguities arising from the privilege of the sentence. In each sentence, all the questions specified in the Code of Criminal Procedure should be solved and set out so that there are no difficulties in its execution. The court in the execution stage is not entitled to change the content of the sentence and correct it essentially. However, if there is any ambiguity or errors in the verdict, the solution of which does not affect the essence of the sentence and does not worsen the provision of the convicted person, the court, the sentence, must eliminate the doubts. These questions include: the use of amnesty act, if it is mandatory and the court under the sentence did not enter the discussion of this issue; Cancellation of preventive measures in cases where the defendant is acquitted or convicted with exemption from punishment, but in the sentence of the court, the preventive measure is not canceled; Cancellation of civil lawsuit or property confiscation if issued the acquittal Or in a lawsuit, either confiscation was not applied, but the sentence measures were not canceled; the offset of a preliminary conclusion, if he is not a sentence of the court, either perfectly; The fate of material evidence, when it is not solved by the verdict of the court, etc. In addition, the courts in the execution of the sentence can eliminate other ambiguities arising after the sentencing due to changes in the circumstances and conditions for the time of its execution. In particular, such issues include: the appeal of confiscation on the additionally detected property of the convicted, acquired before the sentencing and subject to confiscation; Clarification of the list of things and items to be confiscated by the court sentence, if the sentence is made to the confiscation of the part of the property owned by the convicted person; Returning withheld amounts from convicted to correctional work, if the sentence is subsequently canceled by a higher court and the work has been discontinued after partial or full of deductible correctional work, etc. If doubts, ambiguities found in the execution of the sentence relate to its being, that is, They affect the questions of guilt and punishment, then their correction is possible only in order of judicial supervision by canceling or changing the sentence.
Conclusion
Execution of the sentence is the final stage of the criminal process. At this stage, various issues related to the procedure for bringing the sentence according to their nature, with some gaps and instigances of the sentence itself, as well as in solving the judge of other problems directly provided for by the criminal, criminal and executive and criminal procedural laws. CHAPTER 46 Code of Criminal Procedure regulates issues related to the appeal of sentences, definitions and regulations. Sentences of ships enter into legal force after the expiration of a 10-day term of appeal in a cassation or appeal order, if they were not appealed by the parties. In the case when the verdict was appealed, it enters into force on the day of the cassation definition, if the cassation leaves a sentence in force. Immediately enter into force the definition and decree of cassation and supervisory instances.
Appeal to the execution of the sentence is assigned to the court of first instance. Within 3 days from the date of entry into force or return of a criminal case from an appeal or cassation instance, the court of first instance sends a copy of the sentence to the institution or the authority to be entrusted with punishment. Punishment in the form of a fine and confiscation of property is executed by the bailiff - the performer. Punishment in the form of mandatory work, correctional work, deprivation of the right to hold certain positions or to engage in certain activities is performed by criminal - executive inspection; She also monitors the convicts conditionally and for women who are given the delay of the execution of the sentence. If the face is convicted of arrest or imprisonment and is in custody - the verdict is sent to the place of detention of convicts in custody. If the convict by the time of the sentence entry into force is not in custody, a copy of the sentence is sent to the internal affairs body for its premises into a detention facility and directions to the place of serving the sentence. If the face is condemned to restricting freedom - it is sent to the place of serving the punishment by independently either in custody (this question is solved by the court in the sentence). Under the conviction of the face to arrest or deprivation of freedom, the administration of the place of detention informs one of the close relatives of the convicted person on where it is sent to serving the sentence. Prior to the conversion of a sentence to the execution of close relatives of the convicted person upon their request, a date is given.
Article 396 of the Code of Criminal Procedure solves the issue of competence of ships that resolve issues related to the execution of the sentence. The general principal approach is associated with the consideration of the relevant issues at the place of serving by convicted penalties. Article 397 of the Code of Criminal Procedure lists all the issues that the Court considers in connection with the execution of the sentence. In addition, the law allows the court to clarify doubts and ambiguities that arose in the execution of the sentence. The list of such ambiguities is given in the decision of the Plenum of the Supreme Court of the USSR of December 22, 1964 No. 18 "On some procedural issues arising in judicial practice in the execution of sentences." In art. 398 Code Code explains the conditions under which the court may provide a delay in serving the sentence. In art. 399 Code of Criminal Procedure is regulated by the procedure for resolving issues related to the execution of the sentence. It has been established that issues related to the execution of the sentence are discussed by the court for the provision of an institution or an authority acting. At the same time, in some cases, the initiative can show himself condemned. But the petition of the convicted person is directed not directly to the court, but the administration of the institution or the authority acting, which, before contacting the court, should hold a certain preparatory work. In addition, in certain cases, the Administration may not agree with the convicted one.
In art. 400 Code of Criminal Procedure is defined by the procedure for consideration of applications for criminal removal. A cassation complaint may be submitted to the court decision submitted on the issues under consideration within 10 days.
Bibliography
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Definition of SC in criminal cases of the Supreme Court of the Russian Federation
"When repeated conditional condemnation for a crime committed
before making the first sentence, the rules of Part 5 of Art. 69 of the Criminal Code of the Russian Federation
do not apply. Each sentence is performed independently. "
(Extraction)
According to the sentence of the Petrozavodsk city court on February 23, 2000, Salyaev (previously convicted on December 16, 1999 under paragraph "in" Part 2 of Art. 161, Part 1 of Art. 267 of the Criminal Code of the Russian Federation to three years and six months of imprisonment conditionally with For a trial period of three years), it was condemned by paragraph. "B" Part 2 of Art. 158 of the Criminal Code of the Russian Federation with the use of Art. 73 of the Criminal Code of the Russian Federation to two years of imprisonment conditionally with a trial period of two years, by virtue of Part 5 of Art. 69 of the Criminal Code of the Russian Federation through partial addition of punishments appointed under two sentencing. Four years of imprisonment was determined. In accordance with Art. 73 of the Criminal Code of the Russian Federation, this punishment is recognized as conditional with a trial period of three years.
He is found guilty that on November 4, 1997 secretly kidnapped the property of Akimenko in the amount of 1767 rubles. And the property of landareva in the amount of 750 rubles.
The Presidium of the Supreme Court of the Republic of Karelia May 30, 2001 left without satisfying the protest of the prosecutor of this republic on the change of sentence, the exclusion of instructions on the appointment of Salaev Penalties according to the rules of Part 5 of Art. 69 of the Criminal Code and the performance of both sentences on their own.
Judicial board in criminal cases of the Supreme Court of the Russian Federation on September 13, 2001 Protest of the Deputy General Prosecutor The Russian Federation, made on the same basis, satisfied, indicating the following.
As the first and the second sentence, Salayev sentenced to imprisonment conditionally. The second crime was committed before the first sentence.
The Presidium of the Supreme Court of the Republic of Karelia pointed out in the ruling that in the presence of a totality of crime, the court is obliged to fulfill the requirements of Art. 69 of the Criminal Code of the Russian Federation, and the criminal law does not contain a ban on the addition of conditional penalties in a combination of crimes.
However, the conclusion about the possibility of addition of conditional punishment is erroneous.
Rules of Part 5 of Art. 69 of the Criminal Code of the Russian Federation apply under the conviction of the person in both sentences to real punishment.
In paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 11, 1999 "On the practice of appointment by the courts of criminal penalties" explained: if the conditionally convicted person it will be established that it is perpetrators in another crime committed before the sentence of the first case , Rules of Art. 69 of the Criminal Code of the Russian Federation are not applied, since in Art. 74 of the Criminal Code of the Russian Federation is given an exhaustive list of circumstances, on the basis of which the condemnation of conditional condemnation is possible. In such cases, the sentences on the first and second case are performed independently.
Taking into account the sentenced sentenced from February 23, 2000, in relation to Salaeva changed, an indication of the appointment of punishment for the totality of crimes under the rules of Part 5 of Art is excluded. 69 of the Criminal Code, this sentence and sentence of December 16, 1999 were determined to fulfill independently, the Resolution of the Presidium of the Supreme Court of the Republic of Karelia.
Criminal process. Textbook. Under the general ed. A.S. Coblikova. Norma Infra, M., 2006
Scientific and practical allowance for the use of the Code of Criminal Procedure of the Russian Federation (ed. D.Yu.N., Prof., Chairman of the Supreme Court RFV.M. Lebedeva - "Norma", 2004
Scientific and practical allowance for the use of the Code of Criminal Procedure of the Russian Federation (ed. D.Yu.N., Prof., Chairman of the Supreme Court RFV.M. Lebedeva - "Norma", 2004
Criminal process. Textbook. Under the general ed. A.S. Coblikova. Norma Infra, M., 2006
Criminal process. Textbook. Under the general ed. A.S. Coblikova. Norma Infra, M., 2006
Scientific and practical allowance for the use of the Code of Criminal Procedure of the Russian Federation (ed. D.Yu.N., Prof., Chairman of the Supreme Court RFV.M. Lebedeva - "Norma", 2004
Criminal process. Textbook. Under the general ed. A.S. Coblikova. Norma Infra, M., 2006