Art. 399 of the Code of Criminal Procedure with commentaries

In Art. 397, 399 of the Code of Criminal Procedure established a range of issues relating to the enforcement of the sentence and the procedure for their consideration. In addition to them, the Code provides for another article regulating this sphere. This art. 396 CCP. In part 5 of the rule it is established that all circumstances relating to the implementation of the sentence are dealt with by the judge alone in the meeting. Let's consider further art. 399 of the Code of Criminal Procedure (with comments of 2015).

General rules

The rule in question establishes that the circumstances that relate to the implementation of the sentence are studied by the court upon the petition of the rehabilitated. This provision is valid in the case provided for in paragraphs 1 st. 397, 399 of the Code of Criminal Procedure. Issues related to the implementation of the sentence can be dealt with at the request of the convicted person. This takes place in the cases defined in paragraphs 3-6, 9 and 11-15 of Art. 397 CCP, part 1 and 2 of Art. 398. The issues can be examined on the basis of a request from the MIS authority or the VD at the place of detention of the citizen. Such a situation occurs in the cases provided for in clauses 18 and 18.1 397 of the article.

The investigation of issues can be carried out taking into account the provisions of Art. 469-472. For this, the circumstances established in paragraphs 20 and 21 of the 397 article of the Code should take place. Questions can be considered on the recommendation of the body / institution that carries out the punishment in the situations defined in clause 12 of the said rule. This rule applies to persons who committed at the age of 18 liters. An encroachment on the sexual inviolability of a minor citizen (up to 14 years old) and recognized as suffering pedophilia, which does not exclude sanity.

The investigation of the circumstances relating to the enforcement of the sentence is carried out upon the submission of the institution and in the cases provided for in clauses 19, 17-17.2, 15, 10, 13, 12, 7-8.1, 4.2, 4.1, 2 397 of the Code. If the subject is serving a sentence under art. 81 PECs, the provisions provided for in clause 3-5 of this standard apply. Consideration of the circumstances relating to the implementation of the sentence is carried out in accordance with the provisions of Art. 432 in the case established by clause 16 397 of the Criminal Procedure Code.

Notification of persons

Specified in Part 1 of Art. граждане, органы/организации должны получить уведомление о месте, времени и дате заседания. 399 of the Code of Criminal Procedure, citizens, bodies / organizations should receive notification of the place, time and date of the meeting. The notice is sent no later than 14 days before the appointed day. In accordance with Part 2 of Art. , в суд вызывается представитель органа, направившего представление, или учреждения, которое исполняет наказание. 399 of the Code of Criminal Procedure , a representative of the body that sent the submission or the institution that executes the sentence is summoned to the court. If the issue is related to the implementation of the decision regarding the satisfaction of a civil claim, the relevant plaintiffs and defendants may be summoned.

The convicted person has the right to send an application for participation in the meeting. In this case, its immediate presence or the opportunity to express its position through means of videoconferencing should be ensured. The question of the form in which the convict's participation will be carried out is decided by the court. The application can be sent simultaneously with the application on issues related to the enforcement of the sentence, or within ten days after the person receives notification of the place, time and date of the meeting.

Attraction of the victim

The rules on which the victims are involved are stipulated in Part 2.1 of Art. 399 of the Code of Criminal Procedure. Victims have the right to participate in the meeting under certain conditions. In particular, they may be involved in the investigation of issues specified in clauses 19, 4, 5, 397 of the Criminal Procedure Code, as well as those related to the delay in the execution of punishment. At the same time, the materials of the case must contain the court's decision / ruling on notification of the victim, issued, in accordance with the provisions of Part 5 of Art. 313 of the Code.

Similar conditions apply to his legal representative. Such persons may participate in the examination directly or by means of videoconferencing. The victim (representative) is notified about the place, date and time of the meeting, the possibility to use communication systems not later than 14 days before the appointed date.

Questions about the form in which the victim / representative will participate in the examination should be decided by the court in the presence of a petition, declared within ten days from the receipt of the notification. Failure of persons who have been informed in due time about the place, time and date of the meeting does not interfere with its conduct.

Additionally

Art. определяет ряд прав для лиц, которые принимают участие в рассмотрении вопросов, касающихся исполнения наказания. 399 of the Code of Criminal Procedure defines a number of rights for persons who take part in the consideration of issues relating to the execution of punishment. It is, in particular, the convict and the victim (representative). The specified subjects can get acquainted with the materials presented to the court, participate in the process of their consideration, give explanations, declare challenges, petitions, provide documents.

In part 4 of Art. предусмотрена возможность осужденного реализовывать свои права через адвоката. 399 of the Code of Criminal Procedure provides for the possibility of a convict to exercise his rights through a lawyer. In addition, the prosecutor may participate in the meeting. Proceedings are initiated by the representative of the body / institution that submitted the submission, or the petitioner. After the speeches, the materials provided to the court are examined, explanations of citizens who appear for consideration, the opinion of the prosecutor are heard. At the end of the meeting, a resolution is issued.

Art. 399 of the Code of Criminal Procedure: comments

The issues related to the enforcement of the sentence are resolved in an open meeting. The exception is cases established by 241 articles (part 2) of the Code. The court clarifies to persons their duties, responsibilities, rights and ensures the possibility of their implementation.

Art. определяют общие и специальные правила рассмотрения вопросов. 396, 399 of the Code of Criminal Procedure define general and special rules for the consideration of issues. Initiative on the proceeding may come from the institution / body convicted (representative), competent structures of a foreign state, in accordance with international legal norms. In this case, the fifth part of the first part of Art. 399 of the Code of Criminal Procedure, which provides for the resolution of issues relating to the enforcement of a sentence on the recommendation of the organization that implements the punishment, does not prevent the departing person from sending an application for changing the place of detention.

In addition, the said citizen may request replacement of the unserved portion of the sanctions imposed on him with milder measures. The court, in turn, is obliged to consider the relevant petitions, in accordance with the procedure established by law.

An Important Moment

Considering Art. , следует отметить, что положения части первой нормы в конституционно-правовом их толковании, вытекающем из Постановления Конституционного Суда №16-П от 26.11.2002, не препятствует обращаться с ходатайством об отмене наказания и снятия судимости и условно-осужденным. 399 of the Code of Criminal Procedure of the Russian Federation with comments , it should be noted that the provisions of part one of the first rule in their constitutional and legal interpretation, which follows from the Constitutional Court Decision No. 16-P of November 26, 2002, do not preclude a petition for cancellation of punishment and removal of conviction and conditionally convicted persons .

In this case, the authority also has to consider the application on the merits. At the same time, it does not matter whether submission from the body controlling the person's behavior is received on this issue or not.

Exemption from punishment by illness

This assumption is provided for by Article 397 in paragraph 6. It is based on Art. 81 of the Code. According to the second paragraph of the first art. , данный вопрос решается по ходатайству осужденного. 399 of the Code of Criminal Procedure , this issue is resolved at the request of the convict. In this case, according to Art. 175 (part five) of the PEC, a request to release from serving a sentence due to the onset of a mental disorder can be submitted not only by the citizen himself, but also by his legal representative.

Proof of circumstances

The facts concerning the enforcement of the sentence and acting as the subject of study at the meeting should be justified by the institution / body or the convicted person. It depends on whose initiative was the basis for the proceedings. If the materials submitted to the court do not contain sufficient data to consider the submission or petition, in the course of preparation for the meeting they are returned for appropriate registration. Meanwhile, the limits of the activity of the instance in the study of circumstances are much wider than in the ordinary cases.

Taking into account the cramped position of the person serving a sentence in obtaining evidence, the court is charged with the obligation not only on his petition, but also on his own initiative to reclaim missing materials. In the absence of documents that must be provided by the administration of the authority or institution executing punishment, the authorized body can not refuse to accept the application from the convicted person, his lawyer or representative. The court must assist in the collection of information that can not be obtained by the entities.

Features of participation in the meeting

The meaning of the second part of Art. , все граждане, органы и учреждения, указанные в части первой, в том числе реабилитированный/осужденный, вправе присутствовать на разбирательстве, поскольку должны быть уведомлены о его дате, месте и времени. 399 of the Code of Criminal Procedure , all citizens, bodies and institutions specified in part one, including rehabilitated / convicted persons, are entitled to attend the proceedings, as they must be notified of its date, place and time. Participation in the meeting of a person serving a sentence depends on the availability of a petition from him.

At the same time, the court is required to provide its presence or to provide an opportunity to substantiate its position through videoconferencing. The Plenum of the Armed Forces explained in one of its resolutions that the issue concerning the replacement of the unexpired term of appointed mandatory / correctional labor or the restriction of freedom of imprisonment is decided in the presence of the entity in respect of which it is made.

Specificity of exemption from illness

When solving this issue, the court must check whether the disease is included in the list of pathologies that prevent the serving of punishment. In this case, the disease must be ascertained by a special medical commission or an ITU institution, and a conclusion is drawn up. The court, in addition, takes into account other circumstances that are relevant to the resolution of the submission / petition on the merits.

The authority can not refuse to accept a statement from the convicted person about the release sent directly to her, due to the absence of documents (imprisonment, extracts from the personal file). These papers should be provided by the administration of the body / institution that carries out the punishment, in case of a serious condition of the person.

The court must send a copy of the convicted person's application to the organization where the citizen is located, to immediately provide the necessary materials.

Amnesty and mitigation of punishment

When deciding on the issue of the release of a person or the replacement of sanctions by milder measures in connection with the adoption of a retrospective criminal law, the court motivates the decision only by circumstances established by the sentence that came into effect and imposed an appropriate measure of responsibility.

In this case, the correctness of the application of the rules of the Criminal Code is not subject to assessment. If, during consideration of a convicted person's application or submission of competent authorities / employees, it is determined that the adopted law will not improve a person's position, a decision is passed to refuse them. If the new normative act, which eliminates the crime of the committed act, mitigates the measure of responsibility, etc., is not applied by the court that passed the verdict, this issue can not be considered according to the rules of Art. 399 of the Code of Criminal Procedure.

Rights of the convict

A person who is serving a sentence can protect his interests with the help of a lawyer. A citizen admitted to participation in the case in this status, retains criminal procedural duties and rights in the next stages of production. It seems that the restriction of persons who are authorized to represent the interests of the convicted person at the stage of execution of sentence only by lawyers is unacceptable. Otherwise, it would be an unjustifiable infringement of the constitutional right to receive legal assistance.

The current criminal-executive law directly establishes the possibility of providing legal assistance to the subject who is serving a sentence. It can be provided not only by citizens who have the status of a lawyer, but also by other persons who have the right to implement jur. Services.