St. 399 code of criminal procedure with commentaries

In article 397, 399 of the code includes a range of issues related to sentencing, and the procedure for their consideration. In addition, the Code provides for another article regulating this sphere. This is article 396 of the CPC. In part 5 of the regulations established that all the circumstances relating to the implementation of the verdict be heard by a single judge in the meeting. Consider the next article 399 of the code of criminal procedure (review 2015).

General rules

In this norm it is established that the circumstances relating to the implementation of the sentence being reviewed by a court at the request of rehabilitated. This also applies in the case stipulated in paragraphs first Article 397, 399 of the criminal procedure code of the Russian Federation. Issues relating to the implementation of the sentence, can understand the petition of the convict. In the cases specified in paragraphs 3-6, 9 and 11-15 of article 397 of the criminal procedure code, part 1 and 2 of article 398. The trial of the issues can be view on UIS or VD in the place of detention of the citizen. This situation occurs in the cases provided for in clauses 18 and 18.1 of article 397.

The Trial of the issues may be subject to the provisions of article 469-472. For this to take place the circumstances established in paragraph 20 and 21 of article 397 of the Code. The questions can be seen in the representation of the body/institution executing punishment, in the situations specified in clause 12 of the said rules. This rule applies to individuals who committed at the age of 18 L. sexual assault of a minor citizen (under 14 years) and recognized as suffering from pedophilia, not excluding sanity.

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The Trial of the circumstances relating to the implementation of the sentence shall be reporting companies and in the cases provided for in paragraphs 19, 17-17.2, 15, 10, 13, 12, 7-8.1, 4.2, 4.1, 2 397 articles of the Code. If the subject is serving a sentence under article 81 of the PEC, there are provisions stipulated by paragraph 3-5 of this provision. Consideration of the circumstances relating to the implementation of the sentence shall be in accordance with the provisions of article 432 in the case referred to in paragraph 16 of article 397 of the criminal procedure code.

Notice individuals

Listed in Part 1 of article 399 of the criminal procedure code of the Russian Federation citizens, organizations/entities to receive the notification about the venue, time and date of the meeting. The notice shall be sent not later than 14 days before the appointed day. In accordance with 2 of article 399 of the code of criminal procedure, the court calls the representative of the body making the submission or institution that takes the punishment. If the question is associated with the implementation of the decision in part satisfaction of a civil lawsuit, can be caused by the respective plaintiffs and the defendants.

The Convict has the right to submit the application for participation in the meeting. In this case it must be ensured its direct presence or the opportunity to Express their position by means of video conferencing. The question, in what form will be part of the convict shall be decided by the court. The petition may be sent simultaneously with the application for matters relating to the execution of the sentence, or within ten days of receipt by the person of notice of the place, time and date of the meeting.

The Involvement of the victim

The Rules by which victims are involved, is provided in the Part 2.1 of article 399 of the code. Victims may participate in the meeting under certain conditions. In particular, they can be brought to trial on the issues outlined in paragraph 19, 4, 5 of article 397 of the criminal procedure code, as well as related to suspended sentences. Thus in the case file must contain a determination/order of the court to notify victims, issued under the provisions of part 5 of article 313 of the Code.

Similar conditions apply in relation to his legal representative. These persons may participate in the consideration directly or through video conferencing. The victim (representative) shall be notified of the place, date and time of the meeting, opportunities to use the communication systems not later than 14 days before the scheduled date.

Questions about the form in which the victim/the representative will participate in the review must be resolved by the court in the presence of motions submitted within ten days of receipt of the notification. The failure of those timely notified of the place, time and date of the meeting, did not preclude its holding.

Details

Article. 399 the code determines the number of rights to persons who participate in consideration of matters related to the execution of the punishment. Speech, in particular, about the convicted and the victim (the representative). These subjects can get acquainted with the materials presented to the court, to participate in the process of their review, to give explanations, Lodge challenges and petitions, to provide the documents.

Part 4 of article 399 of the criminal procedure code of the Russian Federation the possibility of the convicted to exercise their rights through a lawyer. In addition, the meeting can participate Prosecutor. The trial begins the representative of the authority/institution who have made representations or the applicant. After the speeches, study materials, provided by the court, shall hear the explanations of citizens, present themselves for consideration, the opinion of the Prosecutor. At the end of the meeting decision is made.

St. 399 of the code: comments

Resolution of issues relating to the execution of the sentence, is carried out in the openmeeting. Except in the cases established by article 241 (2) of the Code. The court explains to the parties their obligation, responsibility, rights, and provides for their implementation.

Article. 396, 399 code of criminal procedure Define the General and special rules of consideration of issues. Initiative for proceedings may come from the institution/authority of the convicted person (the representative), the competent bodies of foreign States according to international law. The fifth paragraph of the first part of article 399 of the code of criminal procedure providing for the resolution of issues pertaining to the execution of the sentence to represent the organization that implements the punishment does not preclude serving individuals to submit a petition to change places of detention.

In addition, the citizen may request the replacement of the unserved part of the imputed sanctions more lenient measures. The court, in turn, is required to consider petitions in the manner prescribed by law.

Important

Considering Article 399 of the code with comments, it should be noted that the provisions of the first rule in constitutional and legal interpretation arising from the Decision of the constitutional Court No. 16-P dated 26.11.2002, does not prevent to petition for the abolition of penalties and overturned and conditionally condemned.

In this case, the court is obliged to consider the application on the merits. It does not matter, received a presentation from the authority controlling the conduct of a person, on this issue or not.

Exemption from punishment through illness

This assumption is provided for in article 397 in item 6. It is based on article 81 of the Code. According to the paragraph the second part one article 399 of the code of criminal procedure, the issue is addressed at the request of the convicted person. Thus, according to article 175 (part five) PEC statement with a request to release from punishment due to the onset of a mental disorder may be made only by a citizen, but his legal representative.

Proof circumstances

To Substantiate the facts concerning the execution of the sentence and acting as the subject matter of the meeting, should the institution/body or convicted. It depends on whose initiative was the basis for the proceedings. If the materials submitted to the court, there is not enough data to consider the submission or petition, in preparation for the meeting they are returned for proper registration. Meanwhile, outside of the activity instance in the study of the circumstances is much wider than in ordinary cases.

Taking into account the constrained situation of the persons imprisoned in obtaining evidence, the court is charged with the duty not only on his application, but also on its own initiative to request the missing materials. In the absence of documents that should provide the administration of the organ or the institution executing the punishment, the authorized authority may not refuse to accept the application from the convicted person, his lawyer or representative. The court must assist in collecting information that cannot be obtained subjects.

Features attend the meeting

For the meaning of the second part Article 399 of the code of criminal procedure, all citizens, organs and institutions mentioned in part one, including rehabilitated/convict has the right to attend the hearing, as must be notified of the date, place and time. Participation in the meeting of a person serving a sentence depends on the availability of the petition from him.

In this case the court is charged with the duty to ensure its presence or provide the opportunity to justify its position through video conferencing. The Plenum of the armed forces in one of its rulings clarified that the issue relating to the replacement of the unserved term assigned to mandatory corrective labor or restriction of liberty imprisonment is solved in the presence of the subject in respect of which it is made.

The Specifics of the liberation of illness

When addressing this issue the court must check whether the disease in the List of pathologies that impede the punishment. The illness must be diagnosed with a special medical Commission or institution of the ITU, which is documented in the conclusion. The court, in addition, takes into account other circumstances which are relevant to the resolution of the submission/petition on the merits.

The Court may not refuse to accept the application from the convicted person about the release, aimed directly to her, due to the lack of documents (reports, extracts from the personal file). These papers should provide the administration of the authority/institution executing punishment, in case of a severe condition of a person.

The Court must send a copy of the petition of the convicted person in the organization in which the citizen, for the immediate granting of the necessary materials.

Amnesty and commutation of sentence

When Deciding the question concerning the person's release or substitution of milder sanctions measures in connection with the adoption of the criminal law possessing retroactive, the court motivated the decision only in the circumstances established by a sentence came into effect and assigned the appropriate degree of responsibility.

The correctness of application of norms of the criminal code the verdict cannot be. Ifconsideration of the petition of the convicted person or submission to competent authorities/officials, it is determined that the adopted law will not improve the situation of the person, shall issue a decision on refusal in their satisfaction. If a new law eliminating criminality of the offense, a mitigating measure of responsibility, etc., not applied by the sentencing court, the matter cannot be considered under the rules of article 399 of the criminal procedure code of the Russian Federation.

Convict

A Person who is serving a sentence, can protect their interests through legal counsel. Citizen, admitted to participation in business in this state, maintains criminal procedure rights and responsibilities in the following stages of production. It seems that the restriction of persons who are authorized to represent the interests of the convict at the stage of enforcement only by lawyers, is unacceptable. Otherwise it would be an unjustifiable infringement of the constitutional right to receive legal assistance.

The Current criminal law expressly establishes the possibility of granting legal aid to the subject, who is serving a sentence. It can provide not only the citizens having the status of a lawyer, other persons having the right to exercise legal. services.