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.
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Jurisdiction for execution of sentences
I). The court that passed the verdict
- part 1 396 of the Code of Criminal Procedure
compensation for harm to the rehabilitated
- part 1 396 of the Code of Criminal Procedure
on replacement of punishment in case of malicious evasion
- part 1 396 of the Code of Criminal Procedure
on replacing forced labor with imprisonment
- part 1 396 of the Code of Criminal Procedure
on release after the statute of limitations has expired
- part 1 396 of the Code of Criminal Procedure
on the execution of a sentence in case of other unexecuted sentences
- part 1 396 of the Code of Criminal Procedure
on crediting time in custody
- part 1 396 of the Code of Criminal Procedure
on reducing deductions from salary during correctional work
- part 1 396 of the Code of Criminal Procedure
on clarification of ambiguities in the execution of the sentence
- part 1 396 of the Code of Criminal Procedure
on compulsory educational measures
- part 1 396 of the Code of Criminal Procedure
on the transfer of a foreigner to serve a sentence
- part 1 396 of the Code of Criminal Procedure
on deferment of execution of sentence
Another territory
- part 2 396 of the Code of Criminal Procedure
if the place of performance is outside the jurisdiction of the issuing court:
- part 2 396 of the Code of Criminal Procedure
executed by a court of the same level, copy to the issuing court
II). Court at the place of departure
- part 3 396 of the Code of Criminal Procedure
on changing the type of correctional institution
- part 3 396 of the Code of Criminal Procedure
on parole
- part 3 396 of the Code of Criminal Procedure
on the appointment of a forensic psychiatric examination
- part 3 396 of the Code of Criminal Procedure
on replacing the type of punishment with a more lenient type
- part 3 396 of the Code of Criminal Procedure
on release from punishment due to illness
- part 3 396 of the Code of Criminal Procedure
on compulsory medical measures
- part 3 396 of the Code of Criminal Procedure
new, softer law (
10 CC
)
- part 3 396 of the Code of Criminal Procedure
replacement of the type of punishment for restrictions on military service
III). Court of residence
- Part 4 396 Code of Criminal Procedure
on the revocation of parole
- Part 4 396 Code of Criminal Procedure
on the revocation of probation
- Part 4 396 Code of Criminal Procedure
on the cancellation, on the addition of the duties of a conditionally convicted person
- Part 4 396 Code of Criminal Procedure
on the abolition and addition of duties when restricting freedom
- Part 4 396 Code of Criminal Procedure
about deferment for a pregnant woman
- Part 4 396 Code of Criminal Procedure
on termination of deferment for pregnant women with expungement of criminal record
- Part 4 396 Code of Criminal Procedure
on the abolition of deferments for drug addicts
IV). Court at the place of detention
- Part 4.1 396 Code of Criminal Procedure
about arrest for 30 days for evading a fine, work
- Part 4.1 396 Code of Criminal Procedure
about arrest for 30 days for evading a colony settlement
Execution of a foreign sentence
- Part 5 396 Code of Criminal Procedure
taking into account the last place of residence of the convicted person
Composition of the court
- part 6 396 of the Code of Criminal Procedure
composition of the court on issues of execution of the sentence, individually
Article 396 of the Code of Criminal Procedure. Courts resolving issues related to the execution of a sentence
1) The court that passed the sentence (except for the cases provided for in Part 2 135 of the Code of Criminal Procedure) resolves the issues specified in paragraphs:
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— P.
Plenum No. 17 jurisdiction on rehabilitation issues
- clause 1 397 of the Code of Criminal Procedure
(compensation for harm to the rehabilitated);
— clause 2 397 Code of Criminal Procedure
(replacement of punishment in case of malicious evasion);
- clause 2.1 397 Code of Criminal Procedure
(replacement of forced labor with imprisonment);
— clause 9 397 Code of Criminal Procedure
(release after the expiration of the statute of limitations);
— clause 10 397 Code of Criminal Procedure
(execution of the sentence in case of other unexecuted sentences);
— clause 11 397 Code of Criminal Procedure
(crediting time in custody);
— clause 14 397 Code of Criminal Procedure
(reduced deduction from wages during correctional work);
— clause 15 397 Code of Criminal Procedure
(clarification of ambiguities in the verdict);
— clause 16 397 Code of Criminal Procedure
(compulsory educational measures);
— clause 20 397 Code of Criminal Procedure
(transfer of a foreigner to serve a sentence);
- and 398 Code of Criminal Procedure
(deferment of execution of sentence)
.
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 1 of this article are resolved:
- a court of the same level,
- and in his absence at 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 court at the location of the institution executing the sentence, in which the convicted person is serving his sentence in accordance with Articles 60.1 of the Penal Code and 81 of the Penal Code, resolves the issues specified in paragraphs:
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- paragraph 21
Plenum No. 9 jurisdiction over issues related to changing the type of PS
— clause 3 397 Code of Criminal Procedure
(change in the type of correctional institution);
— clause 4 397 Code of Criminal Procedure
(grant of parole);
— clause 4.2 397 Code of Criminal Procedure
(appointment of a forensic psychiatric examination);
— clause 5 397 Code of Criminal Procedure
(replacing the type of punishment with a more lenient type);
— clause 6 397 Code of Criminal Procedure
(exemption from punishment due to illness);
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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
- clause 13 397 of the Code of Criminal Procedure
(mitigation of punishment under a retroactive law);
- clause 19 397 of the Code of Criminal Procedure
(replacing the type of punishment for restrictions on military service).
4) The court at the place of residence of the convicted person resolves the issues specified in paragraphs:
- clause 4.1 397 Code of Criminal Procedure
(cancellation of parole);
— clause 7 397 Code of Criminal Procedure
(cancellation of probation);
— clause 8 397 Code of Criminal Procedure
(cancellation, addition of duties of a probationer);
- clause 8.1 397 Code of Criminal Procedure
(cancellation, addition of duties when restricting freedom);
— clause 17 397 Code of Criminal Procedure
(deferment - for a woman with a child);
— clause 17.1 397 Code of Criminal Procedure
(termination of deferment for a woman with a criminal record expunged);
— clause 17.2 397 Code of Criminal Procedure
(cancellation of deferments for drug addicts).
The issue specified in paragraph 12 397 of the Code of Criminal Procedure is resolved by the court at the place where
compulsory medical measures are applied.
4.1) The court at the place of detention of the convicted person resolves the issues specified in paragraphs:
— clause 18 397 Code of Criminal Procedure
(arrest for 30 days for evading a fine or work);
— clause 18.1 397 Code of Criminal Procedure
(arrest for 30 days for evading a colony settlement).
5) The issues specified in paragraph 21 397 of the Code of Criminal Procedure (on the recognition of a foreign sentence) are considered by the court, which has jurisdiction over the crime committed by the convicted person, taking into account:
- his qualifications under
the Criminal Code,
- and the place of last residence of the convicted person.
6) Issues related to the execution of the sentence are resolved by the judge alone in a court hearing.
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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.
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;
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, until the consideration of the issue specified in paragraph 2 of this article, but for no 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 to send him to a settlement colony under escort in the manner established by Articles 75 and 76 of the Criminal Executive Code of the Russian Federation, or to consider 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.
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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