Article 397 of the Code of Criminal Procedure of the Russian Federation. Issues to be considered by the court when executing a sentence (current version)

New edition of Art. 397 Code of Criminal Procedure of the Russian Federation

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 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.

Protection

The correct choice of a defense lawyer at the stage of execution of the sentence plays an important and even decisive role, because the matter concerns changing the position of the guilty person.

Preparing and collecting various documents for a lawyer is a common job. It will help save time and nerves for an illegally convicted or guilty person who wants to meet his loved ones faster.

According to all the rules, the services of a lawyer can be provided to a convicted person at the expense of the state, if the latter himself requests that a defense attorney be assigned to him. This is necessary when drawing up documents and to obtain qualified legal advice.

In practice, provision of a convicted person with a free government lawyer occurs only during the preliminary investigation and in court, before the sentencing. In the event that a lawyer is appointed to defend an accused and convicted person by the state, procedural costs are reimbursed from the federal budget.

Parole and its cancellation

If the convicted person did not violate the regime while serving his sentence, worked and treated the employees in the colony and other convicts with respect, and also compensated for the harm caused by the crime, then he can ask for early release.

Art. 397 of the Code of Criminal Procedure of the Russian Federation states that the court, when executing a sentence, resolves issues of parole and its cancellation using Article 79 of the Code of Atrocities.

The decisive role in the case of parole for the perpetrator will be the opinion of the victim, as well as the administration of the colony.

The services of a lawyer are not cheap, and not all convicts can afford them, but if you want to achieve parole as quickly as possible, they are worth using, because correctional officers prepare documents for a long time.

Parole can be applied by the court only when the offender has served the required part of the sentence, which depends on the severity of the crime.

The perpetrators and their children

Unfortunately, it happens that convicts, both women and men, are left with children who need their attention and care. This mainly applies to women who have young children and are in prison. That is why the law establishes that children of convicts up to the age of three can remain with their mother if there is a specialized children's home on the territory of the colony. If it is not there, then the child must be handed over to the relatives of the convicted woman or to an orphanage. If a woman has only a year left before the end of her sentence, correctional officers can extend the time the convicted woman’s baby stays in a children’s home in places of detention. In a situation where the sentence is long and there are no relatives, the child is transferred to an orphanage.

Change of punishment

The court may change the punishment previously assigned to the guilty person if the latter tries to evade it in various ways. The following may be subject to change:

• fine - in this case it is possible to replace it with punishment without imprisonment or with the application of the article under which the person was found guilty;
• correctional labor - instead of this punishment, even arrest or imprisonment is applied;
• compulsory labor - forced labor or isolation from society;
• restriction of freedom is only its deprivation.

Therefore, even after the court has issued a verdict that describes the imposed punishment, there is always the possibility that if it is not fulfilled, the punishment may be reviewed by the court and changed.

Monitoring of the execution of these types of punishments by convicts is carried out by special inspections.

Article 399 of the Code of Criminal Procedure of the Russian Federation. The procedure for resolving issues related to the execution of a sentence

1. Issues related to the execution of the sentence are considered by the court: 1) at the request of the rehabilitated person - in the case specified in paragraph 1 of Article 397 of this Code; 2) at the request of the convicted person - in the cases specified in paragraphs 3 (in accordance with part two of Article 78 of the Criminal Executive Code of the Russian Federation), 4, 5, 6, 9, 11 - 15 of Article 397 and parts one and two of Article 398 of this Code; 3) on the proposal of the internal affairs body or institution (body) of the penal system at the place of detention of the convicted person - in the cases specified in paragraphs 18 and 18.1 of Article 397 of this Code; 4) taking into account the requirements of Articles 469 - 472 of this Code - in the cases specified in paragraphs 20 and 21 of Article 397 of this Code; 4.1) on the proposal of the institution or body executing the punishment - in the cases specified in paragraph 12 of Article 397 of this Code, in relation to a person who is convicted of committing, at the age of over eighteen years, a crime against the sexual integrity of a minor under the age of fourteen years, and recognized as suffering from a disorder of sexual preference (pedophilia), which does not preclude sanity; 5) upon the proposal of the institution or body executing the punishment - in the cases specified in paragraphs 2 - 5, 7 - 8.1, 10, 12, 13, 15, 17 - 17.2 and 19 of Article 397 of this Code; 6) in accordance with part two of Article 432 of this Code - in the case specified in paragraph 16 of Article 397 of this Code.
2. The persons, institutions and bodies specified in part one of this article must be notified of the date, time and place of the court hearing no later than 14 days before the court hearing. A representative of the institution executing the punishment or the competent authority is summoned to the court hearing, upon whose presentation the issue related to the execution of the punishment is resolved. If the issue concerns the execution of a sentence in a civil claim, then the civil plaintiff and the civil defendant may be summoned to the court hearing. If there is a request from a convicted person to participate in a court hearing, the court is obliged to ensure his direct participation in the court hearing or provide him with the opportunity to express his position through the use of video conferencing systems. The question of the form of participation of the convicted person in the court hearing is decided by the court. The convicted person’s request to participate in the court hearing may be submitted simultaneously with his request on issues related to the execution of the sentence, or within 10 days from the date the convicted person receives notice of the date, time and place of the court hearing.
3. If a convicted person participates in a court hearing, he has the right to familiarize himself with the materials presented to the court, participate in their consideration, file petitions and challenges, give explanations, and present documents.
4. The convicted person can exercise his rights with the help of a lawyer.
5. Lost power.
6. The prosecutor has the right to participate in the court hearing.
7. The court hearing begins with a report from a representative of the institution or body that submitted the presentation, or with an explanation from the applicant. Then the presented materials are examined, the explanations of the persons who appeared at the court hearing, the opinion of the prosecutor are heard, after which the judge makes a decision.

Changing the type of correctional institution

Guilty persons who are serving a sentence in one correctional institution may be transferred to another for good or bad behavior (if there are various violations). This issue can only be decided by the court. The convicted person himself, through the administration of the colony, or his defense attorney has the right to go to court. If the lawyer is a state lawyer, then the procedural costs for protecting the interests of the convicted person must be compensated from public funds.

The culprit can be transferred:

• from a colony-settlement to a general regime, or vice versa;
• from strict and special regimes to imprisonment.

Female persons and those sentenced to life cannot be transferred to prison.

Article 396 of the Code of Criminal Procedure of the Russian Federation. Courts resolving issues related to the execution of a sentence

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 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 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 place where the convicted person is serving his sentence or at the place where compulsory medical measures are applied.
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 at the court hearing.

Exemption from punishment

Exemption from serving a sentence is possible for a guilty person only in certain cases:

• when the statute of limitations on the conviction has expired;
• if a new criminal law is adopted;
• due to illness, on the basis of Art. 81.

If the convicted person did not serve his sentence after the sentencing and fled from justice, as a result of which the statute of limitations for the crime committed has expired, then the person is subject to release from punishment.

If a new law is adopted that excludes liability for an act from the criminal code, those convicted under this article are subject to release from punishment.

A guilty person may be released by the court from serving a sentence if his health condition does not allow him to stay in a colony. In case of mental disorder, the convicted person may be placed in a specialized medical institution, but only by decision of a judicial authority.

Conditional conviction

If the court assigns a suspended sentence, the convicted person is also assigned a probationary period, during which the offender will be able to prove his correction outside of prison. Punishment without isolation from society is imposed on the basis of Article 73 of the Crime Code.

Issues to be considered by the court when executing a sentence, according to Article 397 of the Code of Criminal Procedure, include the revocation of a suspended sentence and the extension of the probationary period. This occurs when the offender disregards the restrictions imposed on him by the judicial authorities and violates the rule of law.

Rehabilitation

The recognition of a convicted person as completely innocent with the restoration of all his rights is called rehabilitation. In this case, the person must be immediately released from serving the sentence with all due apologies.

Part 1 of Article 397 of the Code of Criminal Procedure of the Russian Federation directly states that the court considers issues of returning all rights to the rehabilitated person. In accordance with this, the latter must apply to the judicial authorities with a demand for the compensation due to him for the damage caused by the unlawful conviction.