1. The issues specified in paragraphs 1, 2, 9, 10, 11, 14, 15, 16 and 20 of Article 397 and Article 398 of this Code are resolved by the court that passed the sentence, except for the cases provided for in part two of Article 135 of this Code.
2. If the sentence is carried out in a place where the jurisdiction of the court that passed the sentence does not apply, then the issues specified in part one of this article are resolved by a court of the same level, and in its absence in the place of execution of the sentence - by a higher court. In this case, a copy of the court decision at the place of execution of the sentence is sent to the court that passed the sentence.
3. The issues specified in paragraphs 3, 4, 4.2, 5, 6, 12, 13 and 19 of Article 397 of this Code are resolved by the court at the location of the institution executing the sentence in which the convicted person is serving his sentence in accordance with Article 81 of the Penal Code Code of the Russian Federation, or at the place of application of compulsory medical measures.
4. The issues specified in paragraphs 4.1, 7, 8, 8.1, 17, 17.1 and 17.2 of Article 397 of this Code are resolved by the court at the place of residence of the convicted person.
4.1. The issues specified in paragraphs 18 and 18.1 of Article 397 of this Code are resolved by the court at the place of detention of the convicted person.
5. The issues specified in paragraph 21 of Article 397 of this Code are considered by the court whose jurisdiction relates to the crime committed by the convicted person, taking into account his qualifications under the Criminal Code of the Russian Federation and the place of last residence of the convicted person in the Russian Federation.
6. Issues related to the execution of the sentence are resolved by the judge alone in a court hearing.
Commentary on Article 396 of the Code of Criminal Procedure of the Russian Federation
1. According to com. In this article, issues related to the execution of punishment and requiring judicial intervention are resolved by the courts: a) who passed the sentence, or b) at the place where the convicted person is serving the sentence, or c) at the place of residence of the convicted person, or d) at the place where compulsory measures of a medical nature were applied, or e ) authorized to consider cases of the same generic jurisdiction (part 5 of the article), depending on the nature of the issues arising during the execution of the punishment.
2. When using part 3 com. Articles should take into account the position of the Constitutional Court of the Russian Federation <1>. Part 1 of Article 363 of the Code of Criminal Procedure of the RSFSR - the same as the current part 3 com. article, - the court’s obligation to consider on the merits the request of a convicted person for his parole release, if the latter was kept not at the place where the sentence was served (or at the place where compulsory measures of a medical nature were applied), but in a pre-trial detention center in connection with proceedings in another criminal case was actually excluded . This norm was recognized as inconsistent with the Constitution of the Russian Federation in the part in which it prevented such a convict from going to court at the place of detention in the pre-trial detention center.
——————————— <1> See: Resolution of the Constitutional Court of the Russian Federation of November 26, 2002 in the case of verifying the constitutionality of the provisions of Art. Art. 77.1, 77.2, part 1 and 10 art. 175 of the Penal Code of the Russian Federation and Art. 363 of the Code of Criminal Procedure of the RSFSR in connection with the complaint of gr. A.A. Kizimova // RG. 05.12.2002. N 231.
Criminal Procedure Code of the Russian Federation:
Article 397. Issues to be considered by the court when executing a sentence
The court considers the following issues related to the execution of the sentence:
1) on compensation for harm to the rehabilitated person, restoration of his labor, pension, housing and other rights in accordance with part five of Article 135 and part one of Article 138 of this Code;
2) on the replacement of punishment in case of malicious evasion from serving it:
a) a fine - in accordance with Article 46 of the Criminal Code of the Russian Federation;
b) compulsory work - in accordance with Article 49 of the Criminal Code of the Russian Federation;
c) corrective labor - in accordance with Article 50 of the Criminal Code of the Russian Federation;
d) restrictions on freedom - in accordance with Article 53 of the Criminal Code of the Russian Federation;
2.1) on the replacement of forced labor with imprisonment in the event of a convicted person evading serving forced labor or recognizing a person sentenced to forced labor as a persistent violator of the order and conditions of serving forced labor in accordance with Article 53.1 of the Criminal Code of the Russian Federation;
3) on changing the type of correctional institution assigned by a court verdict to a person sentenced to imprisonment, in accordance with Articles 78 and 140 of the Criminal Executive Code of the Russian Federation;
4) on conditional early release from serving a sentence in accordance with Article 79 of the Criminal Code of the Russian Federation;
4.1) on the cancellation of parole - in accordance with Article 79 of the Criminal Code of the Russian Federation;
4.2) on the appointment of a forensic psychiatric examination in accordance with part two.1 of Article 102 of the Criminal Code of the Russian Federation;
5) on replacing the unserved part of the sentence with a milder type of punishment in accordance with Article 80 of the Criminal Code of the Russian Federation;
6) on release from punishment due to illness of the convicted person in accordance with Article 81 of the Criminal Code of the Russian Federation;
7) on the cancellation of a suspended sentence or on the extension of the probationary period in accordance with Article 74 of the Criminal Code of the Russian Federation;
on the cancellation or addition of the duties assigned to the convicted person in accordance with Article 73 of the Criminal Code of the Russian Federation;
8.1) on partial cancellation or addition of restrictions imposed on a person sentenced to a penalty of restriction of freedom in accordance with Article 53 of the Criminal Code of the Russian Federation;
9) on release from serving a sentence due to the expiration of the statute of limitations for a conviction in accordance with Article 83 of the Criminal Code of the Russian Federation;
10) on the execution of a sentence in the presence of other unexecuted sentences, if this is not decided in the latest sentence in accordance with Article 70 of the Criminal Code of the Russian Federation;
11) on counting the time of detention, as well as the time spent in a medical institution in accordance with Articles 72, 103 and 104 of the Criminal Code of the Russian Federation;
12) on the appointment, extension, change or termination of the application of compulsory measures of a medical nature in accordance with Articles 102 and 104 of the Criminal Code of the Russian Federation;
13) on release from punishment or on mitigation of punishment due to the publication of a criminal law with retroactive effect, in accordance with Article 10 of the Criminal Code of the Russian Federation;
14) on reducing the amount of deduction from the salary of a person sentenced to correctional labor in accordance with Article 44 of the Criminal Executive Code of the Russian Federation in the event of a deterioration in the financial situation of the convicted person;
15) on clarification of doubts and ambiguities arising during the execution of the sentence;
16) on the release from punishment of minors with the use of compulsory educational measures provided for in part two of Article 92 of the Criminal Code of the Russian Federation;
17) on the abolition of the deferment of serving a sentence for a convicted pregnant woman, a woman who has a child under the age of fourteen, a man who has a child under the age of fourteen and is a single parent, in accordance with Article 82 of the Criminal Code of the Russian Federation;
17.1) on reducing the period of deferment of serving a sentence for a convicted pregnant woman, a woman who has a child under the age of fourteen, a man who has a child under the age of fourteen and is a single parent, with the release of the convicted person from serving the sentence or the remainder of the sentence with the removal of the criminal record in in accordance with Article 82 of the Criminal Code of the Russian Federation;
17.2) on the cancellation of the deferment of serving a sentence for a convicted person in accordance with Article 82.1 of the Criminal Code of the Russian Federation;
18) on the detention of a convicted person who has escaped in order to evade serving a sentence in the form of a fine, compulsory labor, correctional labor or restriction of freedom, or a person sentenced to forced labor who has evaded receiving an order provided for in part two of Article 60.2 of the Criminal Executive Code of the Russian Federation , or who did not arrive at the place of serving the sentence within the period established in the order, before consideration of the issue specified in paragraph 2 or 2.1 of this article, but not more than 30 days;
18.1) on the detention of a person sentenced to imprisonment and serving a sentence in a colony-settlement, who has evaded receiving the order provided for in part one of Article 75.1 of the Criminal Executive Code of the Russian Federation, or who has not arrived at the place of serving the sentence within the period established in the order, but not for more than 30 days, as well as about sending him to a settlement colony under escort in the manner established by Articles 75 and the Criminal Executive Code of the Russian Federation, or about considering the issue specified in paragraph 3 of this article;
19) on the replacement of the unserved part of the sentence with a milder type of punishment or on the release from punishment in the form of a restriction on military service of a military serviceman dismissed from military service, in the manner established by Article 148 of the Criminal Executive Code of the Russian Federation;
20) on the transfer of a citizen of a foreign state sentenced to imprisonment by a court of the Russian Federation to serve the sentence to the state of which the convicted person is a citizen;
21) on the recognition, procedure and conditions for the execution of a sentence of a court of a foreign state, which convicted a citizen of the Russian Federation, transferred to the Russian Federation to serve the sentence.
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Issues related to the execution of the sentence
I). Substitution of punishment
- paragraph "a" paragraph 2 397 Code of Criminal Procedure
evading a fine
- paragraph "b" paragraph 2 397 Code of Criminal Procedure
evasion of compulsory work
- paragraph "c" paragraph 2 397 Code of Criminal Procedure
evasion of correctional labor
- paragraph "d" paragraph 2 397 Code of Criminal Procedure
evasion of restriction of freedom
II). Exemption from punishment
- clause 2.1 397 Code of Criminal Procedure
replacement of forced labor with imprisonment (
53.1 of the Criminal Code
)
— clause 3 397 Code of Criminal Procedure
changing the type of correctional institution
— clause 4 397 Code of Criminal Procedure
grant of parole
- clause 4.1 397 Code of Criminal Procedure
revocation of parole
— clause 5 397 Code of Criminal Procedure
replacing the type of punishment with a more lenient type (
80 of the Criminal Code
)
— clause 6 397 Code of Criminal Procedure
exemption from punishment due to illness
— clause 7 397 Code of Criminal Procedure
revocation, early removal of probation
— clause 8 397 Code of Criminal Procedure
cancellation, addition of duties of a conditionally convicted person
- clause 8.1 397 Code of Criminal Procedure
cancellation, addition of duties when restricting freedom
— clause 9 397 Code of Criminal Procedure
release after the statute of limitations has expired
III). Deferment of punishment
— clause 17 397 Code of Criminal Procedure
cancellation of deferment for women with children
— clause 17.1 397 Code of Criminal Procedure
termination of deferment for a woman with a child
— clause 17.2 397 Code of Criminal Procedure
cancellation of deferments for drug addicts
IV). Other questions
- clause 1 397 of the Code of Criminal Procedure
compensation for harm to the rehabilitated
— clause 4.2 397 Code of Criminal Procedure
appointment of a forensic psychiatric examination
— clause 10 397 Code of Criminal Procedure
execution of a sentence in case of other unexecuted sentences
— clause 11 397 Code of Criminal Procedure
credit for time in custody
— clause 12 397 Code of Criminal Procedure
compulsory medical measures
- clause 13 397 of the Code of Criminal Procedure
new, softer law (
10 CC
)
— clause 14 397 Code of Criminal Procedure
reduction in wage withholding (correctional work)
— clause 15 397 Code of Criminal Procedure
clarification of ambiguities in the execution of a sentence
— clause 16 397 Code of Criminal Procedure
compulsory educational measures
— clause 18 397 Code of Criminal Procedure
arrest for 30 days for evading a fine, work
— clause 18.1 397 Code of Criminal Procedure
arrest for 30 days for evading a colony settlement
- clause 19 397 of the Code of Criminal Procedure
abolition of the type of punishment for restrictions on military service
— clause 20 397 Code of Criminal Procedure
transfer of a foreigner to serve a sentence
— clause 21 397 Code of Criminal Procedure
recognition of a foreign judgment
Plenum of the Supreme Court
- paragraph 22
Plenum No. 21 list of issues, order of execution of the sentence
Article 397 of the Code of Criminal Procedure. Issues to be considered by the court when executing a sentence
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— Chapter 47
Criminal Procedure Code proceedings for the execution of a sentence
The court considers the following issues related to the execution of the sentence:
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Jurisdiction for property damage
- Part 2 135 Code of Criminal Procedure
the claim is submitted to the court that issued the sentence
— P.
Plenum No. 17 jurisdiction for property damage
- part 1 396 of the Code of Criminal Procedure
the jurisdiction of this issue is the court that passed the sentence
- clause 1 397 of the Code of Criminal Procedure
compensation for damage - in execution of the sentence
1) on compensation for harm to the rehabilitated person, restoration of his labor, pension, housing and other rights in accordance with Part 5 135 and Part 1 138 of the Code of Criminal Procedure;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
- clause 22.6
Plenum No. 58 replacement with forced labor in case of evasion
2) on the replacement of punishment in case of malicious evasion from serving it:
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- clause 5.1
Plenum No. 21 replacing a fine with another punishment
a) to replace the fine in accordance with 46 of the Criminal Code;
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- clause 5.8
Plenum No. 21 replacement of compulsory work
b) on the replacement of compulsory work in accordance with 49 of the Criminal Code;
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— 5.8
Plenum No. 21 replacement of correctional labor
c) on the replacement of correctional labor in accordance with 50 of the Criminal Code;
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- clause 5.8
Plenum No. 21 replacement of restrictions on freedom
d) on replacing the restriction of freedom in accordance with 53 of the Criminal Code;
2.1) on the replacement of forced labor with imprisonment in the event of a convicted person evading serving forced labor or recognizing a person sentenced to forced labor as a persistent violator of the order and conditions of serving forced labor in accordance with Article 53.1 of the Criminal Code
.
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- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
- paragraph 21
Plenum No. 9 jurisdiction over issues related to changing the type of PS
3) on changing the type of correctional institution assigned by a court sentence to a person sentenced to imprisonment, in accordance with Articles 78 and 140 of the Penal Code;
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- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
4) on conditional early release from serving a sentence in accordance with Article 79 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
4.1) on the cancellation of parole in accordance with 79 of the Criminal Code;
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- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
4.2) on the appointment of a forensic psychiatric examination in accordance with 102 of the Criminal Code;
Url Additional information:
- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
5) on replacing the unserved part of the sentence with a more lenient type of punishment in accordance with Article 80 of the Criminal Code;
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- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
6) on release from punishment due to illness of the convicted person in accordance with Article 81 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
— clause 9
Plenum No. 21 cancellation of probation
7) on the abolition of a suspended sentence or on the extension of the probationary period in accordance with 74 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
— clause 13
Plenum No. 21 cancellation, addition of duties
on the cancellation or addition of the duties assigned to the convicted person in accordance with Article 73 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
- paragraph 14
Plenum No. 21 cancellation, addition of restrictions
8.1) on partial cancellation or addition of restrictions imposed on a person sentenced to a penalty of restriction of freedom in accordance with Article 53 of the Criminal Code;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
- paragraph 15
Plenum No. 21 expiration of the sentence
Limitation of sentence
Limitation periods
sentences: release from liability in accordance with
83 of the Criminal Code
9) on release from serving a sentence due to the expiration of the statute of limitations for a conviction in accordance with 83 of the Criminal Code;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
10) on the execution of a sentence in the presence of other unexecuted sentences, if this is not decided in the latest sentence in accordance with 70 of the Criminal Code;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
11) on counting the time of detention, as well as the time spent in a medical institution in accordance with Articles 72, 103 and 104 of the Criminal Code;
Url Additional information:
- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
- paragraph 31
Plenum No. 6 recovery of the person, the investigation of the case is resumed
12) on the appointment, extension, change or termination of the application
of compulsory medical measures in accordance with 102 and 104 of the Criminal Code;
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Relaxation of the law
- Part 1 10 of the Criminal Code
any law that improves the situation has retroactive effect
- Part 2 54
Constitutional mitigation law has retroactive effect
- clause 13 397 of the Code of Criminal Procedure
commutation of sentence in execution of sentence
- part 3 396 of the Code of Criminal Procedure
the jurisdiction of this issue relates to the court at the place of serving
- clause 2, part 1 399 of the Code of Criminal Procedure
issues resolved at the request of a convicted person
- paragraph 16
Plenum No. 21, when mitigating punishment, the provisions of
Article 60 of the Criminal Code
- clause 17
Plenum No. 21 factual circumstances are not considered
Practical aspects
Changes to the law
leading to mitigation of punishment
13) on release from punishment or on mitigation of punishment due to the publication of a criminal law with retroactive effect, in accordance with 10 of the Criminal Code;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
- paragraph 21
Plenum No. 21 reduction of salary deductions
14) on reducing the amount of deduction from the salary of a person sentenced to correctional labor in accordance with Article 44 of the Penal Code in the event of a deterioration in the financial situation of the convicted person;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
- paragraph 22
Plenum No. 21 technical errors in the execution of the sentence
- paragraph 23
Plenum No. 21 who has the right to demand clarification of doubts and ambiguities
Corrections in the verdict
Corrections in the verdict
, the procedure for their introduction (
Part 3 303 of the Code of Criminal Procedure
)
15) on clarification of doubts and ambiguities arising during the execution of the sentence;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
- paragraph 37
Plenum No. 1 replacement with educational measures at any time
16) on the release from punishment of minors using compulsory measures of educational influence, provided for in Part 2 of 92 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
Cancel deferment
Cancel deferment
in case of non-compliance with its conditions (
Part 2 82 of the Criminal Code
)
17) on the abolition of the deferment of serving a sentence for a convicted pregnant woman, a woman who has a child under the age of 14, a man who has a child under the age of 14 and is a single parent, in accordance with 82 of the Criminal Code;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
- paragraph 24
Plenum No. 21 reduction of the deferment period under Article 82 of the Criminal Code
Termination of deferment
Termination of deferment
according to two options: reaching 14 years of age or reduction
17.1) on reducing the period of deferment of serving a sentence for a convicted pregnant woman, a woman who has a child under the age of 14 years, a man who has a child under the age of 14 years and is a single parent, with the release of the convicted person from serving the sentence or the remainder of the sentence with the expungement of the criminal record in in accordance with 82 CC;
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- Part 4 396 Code of Criminal Procedure
jurisdiction of this issue at the place of residence
17.2) on the cancellation of the deferment of serving a sentence for a convicted person in accordance with 82.1 of the Criminal Code;
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- Part 4.1 396 Code of Criminal Procedure
jurisdiction at the place of detention
— P.24.1
Plenum No. 21 procedural issues when replacing punishment
18) on the detention of a convicted person who has escaped in order to evade serving a sentence in the form of a fine, compulsory labor, correctional labor or restriction of freedom, or a person sentenced to forced labor, who has evaded receiving an order provided for in Part 2 60.2 of the Penal Code, or who has not arrived at place of serving the sentence within the period established in the order, until the consideration of the issue specified in paragraph 2 or paragraph 2.1 of this article, but not more than 30 days;
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- Part 4.1 396 Code of Criminal Procedure
jurisdiction of this issue at the place of detention
18.1) on the detention of a person sentenced to imprisonment to serve the sentence in a colony-settlement:
- who has evaded receiving the order provided for in Article 75.1 of the Penal Code, or who has not arrived at the place of serving the sentence within the period established in the order, but not more than 30 days;
- as well as about sending him to a colony-settlement under escort in the manner established by 75 and 76 PECs;
- or on consideration of the issue specified in paragraph 3 of this article (on changing the type of correctional institution);
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- part 3 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court at the place of serving
19) on the replacement of the unserved part of the punishment with a more lenient type of punishment or on the release from punishment in the form of restrictions on military service of a military serviceman dismissed from military service, in the manner established by 148 Penal Code;
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- part 1 396 of the Code of Criminal Procedure
jurisdiction of this issue by the court that passed the sentence
20) on the transfer of a citizen of a foreign state sentenced to imprisonment by a court of the Russian Federation to serve the sentence to the state of which the convicted person is a citizen;
21) on the recognition, procedure and conditions for the execution of a sentence of a court of a foreign state by which a citizen was convicted and transferred to the Russian Federation to serve his sentence.
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