RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 20, 2011 No. 21

About practice of application by courts of the legislation on execution of sentence

Due to the questions arising at courts in case of application of regulations of Chapter 46 of the Code of Criminal Procedure of the Russian Federation ("The appeal to execution of sentences, determinations and resolutions") and Chapter 47 of the Code of Criminal Procedure of the Russian Federation ("Production on consideration and permission of the questions connected with execution of sentence"), and for the purpose of ensuring unity of court practice the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation" decides:

1. Draw the attention of courts that the questions connected with execution of sentence are regulated not only by the relevant standards of the Code of penal procedure of the Russian Federation, the Criminal Code of the Russian Federation and Penal Code of the Russian Federation, but also other regulatory legal acts (for example, the Law of the Russian Federation of July 21, 1993 No. 5473-I "About the organizations and bodies performing criminal penalties in the form of imprisonment", the Federal Law of July 15, 1995 No. 103-FZ "About detention of suspects and the crimes accused of making", the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding", the Law of the Russian Federation of January 17, 1992 No. 2202-I "About prosecutor's office of the Russian Federation", the Federal Law of November 21, 2011 No. 323-FZ "About bases of protection of public health in the Russian Federation" the order of the Government of the Russian Federation of June 16, 1997 No. 729 "About approval of the Regulations on criminal and executive inspections and the standard rate of their number of staff", the order of the Ministry of Justice of the Russian Federation of May 20, 2009 No. 142 "About approval of the Instruction on the organization of execution of punishments and measures of criminal and legal nature without isolation from society", the order of the Ministry of Justice of the Russian Federation of October 11, 2010 No. 258 "About approval of the Instruction on the organization of execution of the punishment in the form of restriction of freedom").

2. Courts should mean that consideration and permission of the questions connected with execution of sentence is performed in the form of justice in proceeding in open court, except as specified, specified regarding the 2nd article 241 Code of Criminal Procedure of the Russian Federation. With respect thereto the court explains to participants of judicial session of their right, obligation and responsibility and provides possibility of implementation of these rights (part 1 of article 11 Code of Criminal Procedure of the Russian Federation).

Owing to part 2 of the article 10 PEC of the Russian Federation in case of execution of punishments to convicts the rights and freedoms of citizens of the Russian Federation with withdrawals and restrictions set by penal, criminal and executive and other legislation of the Russian Federation are guaranteed. In relation to realization condemned the rights to judicial protection the criminal procedure and criminal and executive legislation does not contain any withdrawals or restrictions and does not allow lowering of the level of guarantees of the right to judicial protection for convicts in case of permission by court of the questions connected with execution of sentence.

3. When person who made the petition for appeal (representation) recalls she (he) based on part 3 of article 389.8 Code of Criminal Procedure of the Russian Federation, in the absence of claims of other persons or representation of the prosecutor resolution of the Trial Court, proceeding from provisions of Articles 390, of 391 Code of Criminal Procedure of the Russian Federation, it is considered taken legal effect after 10 days - the term of its appeal in appeal procedure. At the same time does not matter in what terms prior to judicial session of Appeal Court the claim or representation are withdrawn (within the term established for appeal to or after the direction of criminal case in Appeal Court).

4. Taking into account part provisions 2 Articles 391, of part 2 of Article 389.2 and Item 53.3 of article 5 Code of Criminal Procedure of the Russian Federation the intermediate judgments which are not subject to independent appeal in appeal procedure take legal effect and address execution immediately. Their legality and justification can be checked in appeal procedure along with check of legality and justification of the final decision on case.

5. Considering the questions connected with replacement of punishment in case of malicious evasion from its serving, courts shall find out all circumstances which can affect legality of the made decision regarding determination of term or the amount of unexpired punishment or conditions which attract need of replacement of punishment.

Explain to courts that the decision on replacement of punishment is made taking into account nature and degree of public danger of crime for which person is condemned, the identity of the guilty person, and also the reasons for which the convict evaded from serving of the penalty imposed to it.

5.1. In case of permission of question of replacement of penalty according to the subitem "an" of Item 2 of article 397 Code of Criminal Procedure the Russian Federation should mean that according to part 5 of article 46 Criminal Code of the Russian Federation other punishment replaces only the fine which is ordered to pay as primary punishment. In case of failure to pay the fine which is ordered to pay as additional punishment measures for recovery by enforcement of penalty are taken (article 103 of the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding").

According to part 1 of the article 32 PEC of the Russian Federation it is malicious evading from payment of penalty the condemned, not paid penalty without payment by installments within 60 calendar days from the date of the introduction of sentence in legal force or the first part of penalty with payment payment by installments in the same time or the rests of penalty no later than the last day of each next month is recognized.

In law sense, establishment of other conditions, except failure to pay penalty in time (for example, the numerous prevention of the convict judicial police officers-contractors about possibilities of replacement of penalty with other punishment, confiscation of explanations at it about the reasons of failure to pay penalty, submission of data on property status of the convict and sources of its income), for recognition of the convict is malicious evading from payment of penalty it is not required. However by consideration of question of replacement of the fine which is ordered to pay as primary punishment, other type of punishment to court it is necessary to check arguments that the convict did not evade from payment of penalty, but did not pay it on reasonable excuses in time.

Explain to courts that the fact of absence in itself at the convict of money cannot be recognized reasonable excuse for failure to pay penalty in time. The resolutions of sentence which appeared later such circumstances owing to which the convict is deprived of opportunity to pay penalty in time can be considered as reasonable excuses (for example, loss of ability, stay on treatment in stationary medical institution, loss of earnings or property owing to circumstances which did not depend from the face).

5.2. The fine which is ordered to pay as primary punishment, except as specified its appointments in the amount of, estimated proceeding from size, the multiple cost of subject or the amount of commercial bribery or bribe, in case of malicious evasion from its payment is replaced with any (including the Criminal Code of the Russian Federation who is not provided by the sanction of the relevant article of the Special part) other primary punishment, the stipulated in Article 44 Criminal Code of the Russian Federation, except imprisonment. At the same time the restrictions set for purpose of separate types of punishments by Articles of the General part of the Criminal Code of the Russian Federation shall be considered (in particular, part 4 Articles 49, part 5 of Article 50, part 6 of Article 53, part 7 of article 53.1 Criminal Code of the Russian Federation).

The penalty in the amount of, estimated proceeding from size, the multiple cost of subject or the amount of commercial bribery or bribe, in case of malicious evasion from its payment is replaced with punishment within the sanction of the relevant article of the Special part of the Criminal Code of the Russian Federation.

In case of determination of type and term of punishment which replaces penalty in case of malicious evasion from its payment it is necessary to take the size of the ordered to pay fine and that its part which is not paid to convicts into account.

5.3. The term of punishment which replaces penalty cannot exceed upper limit of the corresponding type of punishment set by the sanction of Article of the Special part of the Criminal Code of the Russian Federation if such type of punishment is provided by the corresponding norm. The lower limit of punishment which replaces penalty in this case cannot be below the lowest limit of the corresponding type of the punishment established by the sanction of Article of the Special part of the Criminal Code of the Russian Federation.

If punishment which replaces penalty, is not provided by the sanction of Article of the Special part of the Criminal Code of the Russian Federation, the term of this punishment cannot exceed upper limit and cannot be below lower limit, established for it by the General part of the Criminal Code of the Russian Federation.

5.4. In case the fine which is ordered to pay as primary punishment along with which the additional punishment (provided by the sanction of the relevant article of the Special part of the Criminal Code of the Russian Federation or appointed according to articles 47 or 48 Criminal Code of the Russian Federation was imposed is replaced), the issue of replacement only of primary punishment shall be resolved. The additional punishment imposed according to the court verdict is performed independently.

Resolving issue of replacement of the fine which is ordered to pay as the primary punishment along with other types of punishments on cumulative offenses or sentences and performed according to part 2 of article 71 Criminal Code of the Russian Federation independently the court in case of determination of final punishment shall proceed from the general rules established by Articles 69, 70 and part 1 of article 71 Criminal Code of the Russian Federation.

5.5. In case of permission of question of replacement of penalty with other punishment it is necessary to check whether were applied in case of the resolution of sentence of provision of part 5 of article 72 Criminal Code of the Russian Federation to person who was held before legal proceedings in custody. In that case when the size of penalty was appointed taking into account the term of content of the convict under guards, the same term cannot be offset in time punishments which replaces penalty.

5.6. In case of permission of question of replacement of penalty with other type of punishment to court it is necessary to check observance of the requirements of enforcement proceeding provided by the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding", in particular: the fact of delivery by the judicial police officer-contractor condemned resolutions on excitement of enforcement proceeding (part 7 of article 103 of the Law), specifying in the resolution on excitement of enforcement proceeding of term for voluntary execution of the requirement about payment of penalty (part 5 of article 103 of the Law), explanation in the resolution of effects of failure to pay penalty in the specified time (part 6 of article 103 of the Law).

5.7. The court returns to the judicial police officer-contractor idea of replacement of the fine which is ordered to pay as primary punishment, other type of punishment if establishes availability of circumstances which were not known to the judicial police officer-contractor, but could influence decision making about representation introduction (for example if the convict was on treatment in stationary medical institution).

If to the convict, it is malicious evading from payment of penalty, taking into account part provisions 4 Articles 49, of part 5 of Article 50, of part 6 of Article 53, of part 7 of Article 53.1 or part 5 of article 46 Criminal Code of the Russian Federation cannot be applied any other type of primary punishment, the court refuses satisfaction of idea of the judicial police officer-contractor of replacement of penalty with other punishment.

The court stops production on representation if after its introduction there were circumstances interfering further production on representation (for example, payment by the convict of penalty, including during consideration of representation by court, either the death of the convict, or cancellation of conviction, or change of conviction in the part concerning assignment of punishment in the form of penalty or the size of penalty).

5.8. In the cases provided by subitems "b", "v", "g" of Item 2 of article 397 Code of Criminal Procedure of the Russian Federation in case of the solution of question of whether evasion from serving of obligatory works or corrective works is malicious, and also from restriction of freedom, courts need to check whether were applied to convicts by criminal and executive inspection of the prevention, parts 2 of Article 46 and part 2 of the article 58 PEC of the Russian Federation specified regarding 1 Article 29,.

Concerning persons leaving obligatory works or corrective works it is necessary to find out the reasons of further violation of procedure and conditions of serving sentence after the announcement condemned preventions in writing (emergence at drunk work, absence, dismissal from work for the purpose of evasion from serving sentence, evasion from obligation to report about change of place of employment or the residence within 10 days, absence more than two times within a month for obligatory works without valid excuse, etc.), and also other circumstances testimonial of evasion of the convict from work.

It must be kept in mind that restriction of freedom is replaced with other punishment only in that case when it is appointed as primary punishment (part 5 of article 53 Criminal Code of the Russian Federation). Malicious evasion from serving of the restriction of freedom appointed as additional punishment attracts criminal liability as regards 1 article 314 Criminal Code of the Russian Federation.

Considering that according to the Item "and" of part 4 of the article 58 PEC of the Russian Federation evasion from serving sentence in the form of restriction of freedom can be acknowledged malicious after application to the convict criminal and executive inspection of official caution about inadmissibility of violation of the restrictions set by court, it is necessary to find out the reasons of violations of procedure and the conditions of serving sentence allowed by it after official caution (absence without valid excuse in criminal and executive inspection for registration, non-compliance without valid excuse with the restrictions set by court, administrative prosecution for disorderly conduct, etc.). Besides, other circumstances testimonial of unwillingness of the convict to leave restriction of freedom are subject to examination.

5.9. According to part 3 Articles 49, part 4 of Article 50 and part 5 of article 53 Criminal Code of the Russian Federation in case of malicious evasion of person from serving of obligatory works or corrective works or the restriction of freedom appointed as main type of punishment, the court has the right to replace the unexpired term of each of these types of punishment with forced labor or imprisonment with term less than two months (respectively at the rate of one day of imprisonment or forced labor in eight hours of obligatory works or three days of corrective works or two days of restriction of freedom). These provisions are applied by court irrespective of whether punishment in the form of forced labor or imprisonment is prescribed by the sanction of Article of the Special part of the Criminal Code of the Russian Federation according to which penalty was imposed. At the same time replacement of the called punishment types with imprisonment is allowed also concerning those convicts to whom according to part 1 of article 56 Criminal Code of the Russian Federation custodial sanction cannot be imposed.

The specified rules extend to cases of malicious evasion of person from serving of the obligatory works or corrective works or restriction of freedom appointed according to part 5 of article 46 Criminal Code of the Russian Federation. Application of imprisonment in such cases is allowed, even when fine according to the court verdict was ordered to pay not in multiple size. Punishment term at the same time is estimated proceeding from unexpired part of term of punishment which replaced penalty, but not from the penalty size.

Courts should mean that part provisions 3 Articles 49, of part 4 of Article 50 and part 5 of article 53 Criminal Code of the Russian Federation are inapplicable to those categories of minor convicts by which according to part 6 of article 88 Criminal Code of the Russian Federation custodial sanction cannot be imposed.

5.10. When replacing unexpired punishment in the form of obligatory works, corrective works or the restriction of freedom imposed as main type of penalty, imprisonment in time of serving condemned custodial sanctions time of its content under guards which was offset in case of the resolution of sentence does not join, and time of independent following of the convict joins in colony settlement (part 3 of the article 75.1 PEC of the Russian Federation). If the convict fled the residence and was detained, then the specified term is estimated from the moment of his actual detention. The sentence of punishment which is not served by the convict should be estimated proceeding from the term of the sentence which is actually served by it specified in the materials provided by criminal and executive inspection. Justification of calculation of such term is checked by court.

5.11. Draw the attention of courts that proceeding from provisions of part 6 of article 53.1 Criminal Code of the Russian Federation, parts 3, of the 5th article 60.15 and the article 60.17 PEC of the Russian Federation, and also part 1 of article 396 and Item 2.1 of article 397 Code of Criminal Procedure of the Russian Federation the question of replacement of unexpired part of forced labor with imprisonment is allowed in cases of recognition of the convict by the malicious troublemaker and conditions of serving of forced labor or the evasion condemned from their serving by the court which decided sentence, according to the procedure, the stipulated in Clause 399 Codes of Criminal Procedure of the Russian Federation.

Resolving question of replacement of unexpired part of forced labor with imprisonment, the court checks availability the stipulated in Clause 60.15 PEC of the Russian Federation of the bases for recognition of the convict to forced labor by the malicious troublemaker and conditions of serving of this type of punishment, and also observance of conditions and the procedure of recognition of person by that or the bases, the stipulated in Clause 60.17 PEC of the Russian Federation, for recognition of the convict evading from its serving.

6. The type of correctional facility when replacing punishment in the form of obligatory works, corrective works or the restriction of freedom appointed as primary punishment, is determined by imprisonment according to article 58 Criminal Code of the Russian Federation.

7. If imposed condemned custodial sanction it was replaced according to the procedure of article 80 Criminal Code of the Russian Federation with restriction of freedom from which serving it it is malicious evaded, the court on representation to criminal and executive inspectorate considers question of replacement of this punishment with imprisonment (part 5 of the article 58 PEC of the Russian Federation).

8. No. 51 is excluded according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17.11.2015

9. - 12. No. 18 voided according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 25.06.2024

13. According to part 7 of article 73 Criminal Code of the Russian Federation and based on Item 8 of article 397 Code of Criminal Procedure of the Russian Federation the court on representation of the body exercising control of behavior of conditionally condemned can cancel during probation period fully or partially or add earlier established for conditionally condemned obligations.

The court has the right to cancel fully or partially assigned on conditionally condemned obligations if determines, for example, that conditionally the convict honesty carries out the obligations assigned to it by court, positively is characterized at the place of residence, works, studies or services, claims to his behavior did not arrive and also if establishes other circumstances (pregnancy or the child's birth, achievement of retirement age, disability, etc.).

The court has the right to add earlier established for conditionally condemned obligations if comes to conclusion that conditionally the convict did not report to criminal and executive inspection or command of military unit on the behavior, did not fulfill the duties assigned to it by court, was not on challenge in criminal and executive inspection and also if establishes other circumstances testimonial of feasibility of assignment on conditionally condemned other obligations (part 2 of the article 190 PEC of the Russian Federation).

14. In case of permission of the questions specified in Item 8.1 of article 397 Code of Criminal Procedure of the Russian Federation it must be kept in mind what owing to part 3 of the article 58 PEC of the Russian Federation, making the decision on amendment of the restrictions which are earlier set to the convict, the court finds out what violations specified regarding 1 article 58 PEC of the Russian Federation are allowed by the convict or what other circumstances testify to feasibility of such decision (for example, the convict negatively is characterized, has tendency to the use of alcoholic drinks), and specifies motives of the made decision in the resolution.

15. Resolving issue of release from punishment in connection with the expiration of prescriptive limits of conviction according to article 83 Criminal Code of the Russian Federation (Item 9 of article 397 Code of Criminal Procedure of the Russian Federation), the court checks whether the convict from serving sentence evaded. The convict can be exempted from punishment only if the sentence was not executed owing to circumstances.

16. Courts should mean what by consideration of the questions specified in Item 13 of article 397 Code of Criminal Procedure of the Russian Federation, mitigation of punishment owing to the edition of the penal statute, retroactive assumes application of the general beginnings of assignment of punishment.

17. Resolving issue of release of the convict from punishment or of mitigation to it punishments owing to the edition of the penal statute, retroactive, the court bases the resolution only on the circumstances established by the court verdict which took legal effect, imposed penalty, and has no right to estimate correctness of application by this court of the penal statute.

If during consideration of the petition of the convict or representation of authorized bodies or officials it is determined that the issued law does not improve provision of the convict, then the court issues the decree on refusal in satisfaction of such petition or representation.

The copy of the court order issued on the questions specified in Item 13 of article 397 Code of Criminal Procedure of the Russian Federation goes as to the body performing punishment and to the court which decided sentence for attaching to the criminal case file.

18. In case of the repeated address of the convict with the petition for release from punishment or for mitigation of punishment based on Item 13 of article 397 Code of Criminal Procedure of the Russian Federation when according to the petition declared earlier on the same bases, the court already issues the decree on refusal in its satisfaction, such petition is not subject to consideration and shall be refused its acceptance. If the specified circumstance is established during consideration of the petition of the convict by court, then production according to such petition is subject to the termination.

19. When the new penal statute eliminating crime of act, commuting penalty or otherwise improving provision of person who committed crime is not applied by the court which decided sentence, such question cannot be considered by the rules established by Chapter 47 of the Code of Criminal Procedure of the Russian Federation.

20. Court of the sentence having the right to commute according to the procedure of execution condemned the penalty imposed on cumulative sentences based on article 70 Criminal Code of the Russian Federation and also on cumulative offenses based on part 5 of article 69 Criminal Code of the Russian Federation when earlier or courts of cassation, supervising instances the previous sentence was changed by court according to the procedure of execution of sentence with mitigation of the imposed penalty (for example if the previous sentence is brought into accord with the new penal statute).

21. According to part 7 of the article 44 PEC of the Russian Federation and based on Item 14 of article 397 Code of Criminal Procedure of the Russian Federation with the petition for decrease in the size of payroll deductions of its financial position condemned in case of deterioration criminal and executive inspection, condemned to corrective works or administration of the organization in which it works has the right to take a legal action.

About deterioration in financial position of the convict can witness, for example, the material costs incurred by it in connection with disease or injury of both the convict, and the member of his family, recognition by the disabled person of the able-bodied family member, the birth of the child or emergence in the convict of other dependents, collection from it of the alimony, decrease in the size of the salary, destruction of property or damnification to the convict and his family as a result of the fire or natural disaster.

The decision on decrease in the amount of deduction is made by court taking into account all income of the convict.

21.1. Proceeding from provisions of articles 396 and 446.5 Codes of Criminal Procedure of the Russian Federation in their interrelation in case of failure to pay by person the judicial fine which is ordered to pay as measure of criminal and legal nature the stipulated in Article 104.4 Criminal Code of the Russian Federation, the decision on cancellation of the resolution or determination on the termination of criminal case or criminal prosecution and purpose of measure of criminal and legal nature in the form of judicial penalty is accepted based on representation of the judicial police officer-contractor by court to which cognizance criminal case belongs.

21.2. Draw the attention of courts that the criminal procedure law does not provide prolongation of completion date of the decision on application of measure of criminal and legal nature in the form of judicial penalty, and also delay or extension of the deadline for executing such decision.

22. Draw the attention of courts that each verdict shall comprise answers to all questions which are subject to permission in case of its resolution according to article 299 Code of Criminal Procedure of the Russian Federation and which shall be solved and stated so that there were no difficulties in case of execution of sentence. Proceeding from it and taking into account provisions of Item 15 of article 397 Code of Criminal Procedure of the Russian Federation courts have the right according to the procedure, the stipulated in Article 399 Codes of Criminal Procedure of the Russian Federation to resolve questions which do not mention being of sentence and do not attract deterioration of the situation of the convict, for example:

a) about application of the act of amnesty if its application is obligatory and the court in case of the resolution of sentence was not included into discussion of this question;

b) about cancellation of measure of restraint in cases when in case of justification of the defendant or his condemnation with release from punishment the court verdict does not contain specifying about cancellation of measure of restraint;

c) about cancellation of measures of providing the civil action or possible confiscation of property if in case of pronouncement of the verdict of not guilty or refusal in the claim or non-use of confiscation these measures are not cancelled by sentence;

d) about offsetting of time of detention in time serving sentence if the court allowed inaccuracy in case of its calculation;

e) about offsetting of the served sentence in case of assignment of punishment on cumulative sentences if such offsetting is not made by the court verdict or is made it is inexact;

e) about physical evidences if these issues are not resolved by court in sentence;

g) about determination of the size and distribution of procedural costs if these questions did not get permission in the court verdict;

h) about compensation of the defender participating in case to destination of court if this question is not resolved along with adjudgement;

i) about destiny of the children of the convict who were left without supervision and their transfer on care of relatives or other persons or organizations in cases when the court did not resolve these issues in case of adjudgement;

j) about taking measures to protection of property or the dwelling of the convict, left without supervision when the court did not resolve this issue in case of adjudgement;

k) about release of property from arrest in cases when it is seized property on which under the law the address of collection is not allowed;

l) about specification of the restrictions and obligations established to the convict to punishment in the form of restriction of freedom according to part 1 of article 53 Criminal Code of the Russian Federation (for example, refining of time of day during which it is offered to convict not to leave the house, refining of number of appearances in the specialized state body exercising supervision of the serving condemned punishments for registration);

m) about elimination of the mistakes made in sentence when writing surname, name, middle name or other bio data of the convict, and also slips and arithmetic mistakes if they are obvious and correction them cannot raise doubts.

In case in sentence the type and the amount of punishment, the size of payroll deduction in case of purpose of corrective works are not specified, the restrictions specified in article 53 Criminal Code of the Russian Federation including obligatory are not set, in case of assignment of punishment in the form of restriction of freedom, such questions cannot be resolved based on Item 15 of article 397 Code of Criminal Procedure of the Russian Federation.

23. Questions of explanation of the doubts and ambiguities arising in case of execution of sentence are subject to consideration according to petitions (representations) declared in addition to the convict (justified), the prosecutor, the lawyer, the legal representative, the victim, his representative, the civil claimant and the civil defendant and their representatives, correctional facility, criminal and executive inspection, other interested persons, and also at the initiative of court.

Such questions can be considered by court if they arose in case of execution not only sentence, but also other judgment (for example, court orders about the termination of criminal case, the resolution on purpose of judicial session, the decree issued following the results of initial hearing, the resolution on property attachment, the resolution accepted by court in case of execution of sentence).

24. In case of the solution of the question specified in Item 17.1 of article 397 Code of Criminal Procedure of the Russian Federation taking into account provisions of article 82 Criminal Code of the Russian Federation and article 398 Code of Criminal Procedure of the Russian Federation the court checks whether complied condemned conditions of delay of serving sentence and whether proved the behavior during such delay the correction.

24.1. According to part 4.1 of Article 396 and Item 3 of part 1 of article 399 Code of Criminal Procedure of the Russian Federation the questions specified in Items 18 and 18.1 of article 397 Code of Criminal Procedure of the Russian Federation are permitted on representation of law-enforcement body or organization (body) of criminal executive system by court in the place of detention of the convict.

Taking into account that the convict can be detained without judgment till 48 o'clock, consideration by court of idea of the conclusion it into custody with the notice of persons participating in judicial session shall be performed in the specified time.

Considering such representation, the court shall find out whether the protocol of detention of the convict and his explanation, the copy of the become effective sentence and the resolution on the announcement of the convict in search are attached to it, and also in case of their availability - other materials confirming justification of production of search.

According to the petition of the convict and (or) his legal representative, lawyer the judge gives them access to the materials brought into court.

24.2. Courts should mean that the instructions which also evaded from obtaining or did not arrive to the place of serving sentence to the time established in the instruction convicts to whom serving sentence in colony settlement is appointed after cancellation of conditional condemnation or replacement of penalty, obligatory works, corrective works, restriction of freedom, forced labor on the bases provided in the relevant articles of the Criminal Code of the Russian Federation belong to number of persons to whom provisions of parts 6 and 7 of the article 75.1 PEC of the Russian Federation and Item 18.1 of article 397 Code of Criminal Procedure of the Russian Federation extend.

24.3. In sense of provisions of Item 18 of article 397 Code of Criminal Procedure of the Russian Federation the judgment on detention of the convict who disappeared for the purpose of evasion from serving sentence for a period of up to 30 days can be accepted to the solution of question of replacement of punishment to it. With respect thereto absence in the materials which arrived in court, ideas of replacement to the convict of punishment does not interfere with permission of question of the conclusion it into custody based on Item 18 of article 397 Code of Criminal Procedure of the Russian Federation.

24.4. By results of permission of the questions specified in Item 18.1 of article 397 Code of Criminal Procedure of the Russian Federation, the court has the right along with the decision on the conclusion of the convict into custody in the presence of the corresponding representation to send the convict for serving sentence to colony settlement escorted by or according to part 4.1 of the article 78 PEC of the Russian Federation to change type of correctional facility from colony settlement to corrective colony of ordinary regime. At the same time the court considers the data characterizing the identity of the convict and also other circumstances connected with evasion from serving sentence and provides motives of the made decision in the resolution.

25. The petition for payment by installments of payment of penalty (part 2 of article 398 Code of Criminal Procedure of the Russian Federation) if this issue is not resolved in sentence, is considered according to the procedure, the stipulated in Clause 399 Codes of Criminal Procedure of the Russian Federation. At the same time the court checks arguments of the convict that one-time payment of penalty for it is impossible. For this purpose the court hears explanations of the convict if that participates in judicial session, explanations of other faces participating in case, opinion of the judicial police officer-contractor and prosecutor (if he participates in judicial session) and researches the provided materials.

In the decision on satisfaction of the petition of the convict on payment by installments of payment of penalty are specified the period of payment by installments and amount of monthly payments.

26. According to part 1 of article 396 Code of Criminal Procedure of the Russian Federation the questions stated in Items 1, of 2, 2.1, 9, of 10, of 11, of 14, of 15, of the 16 and 20 Article 397 and in article 398 Code of Criminal Procedure of the Russian Federation are permitted by the court which decided sentence. The specified issues can be resolved by magistrate judges if they decide sentence.

Judgments on the questions connected with execution of sentence taking into account provisions of Articles 389. 1, 401, 401.1 and 412.1 Codes of Criminal Procedure of the Russian Federation can be appealed according to the procedure, established by Chapters 45. 1, 47.1 and 48.1 Codes of Criminal Procedure of the Russian Federation, and also are reviewed on new and to newly discovered facts by rules of Chapter 49 of the Code of Criminal Procedure of the Russian Federation.

27. The question of removal of criminal record according to article 86 Criminal Code of the Russian Federation, proceeding from provision of part 1 of article 400 Code of Criminal Procedure of the Russian Federation, is allowed district (the garrison military) by court, and also the magistrate judge on the criminal cases referred to its cognizance at the place of residence of person who served sentence according to the petition of this person.

When the foreign citizen (stateless person) after departure of punishment left and, being outside the Russian Federation, including because of recognition of undesirability of stay in the territory of the Russian Federation, addresses with the petition for removal of criminal record, such petition is subject to consideration by court taking into account cognizance at the last place of residence or the last place of stay of the convict in the territory of the Russian Federation.

28. Explain to courts that provisions of part 1 of article 399 Code of Criminal Procedure of the Russian Federation do not limit the right of the convict to appeal to the court with petitions for change of type of the correctional facility appointed according to the court verdict (Item 3 of article 397 Code of Criminal Procedure of the Russian Federation) for replacement of unexpired part of punishment with softer type of punishment (Item 5 of article 397 Code of Criminal Procedure of the Russian Federation), about cancellation of conditional condemnation and about removal of criminal record (Item 7 of article 397 Code of Criminal Procedure of the Russian Federation, part 1 of article 74 Criminal Code of the Russian Federation).

29. Courts should mean that the provision of Item 2 of part 1 of article 399 Code of Criminal Procedure of the Russian Federation does not exclude the right of authorized state bodies and officials irrespective of availability of the petition of the convict to take a legal action with idea of reduction of the sentence pronounced on criminal case in compliance with the new penal statute eliminating crime of act, commuting penalty or otherwise improving provision of person who committed crime (Item 13 of article 397 Code of Criminal Procedure of the Russian Federation).

30. Taking into account regulations of part 4 of article 399 Code of Criminal Procedure of the Russian Federation that the convict can perform the rights by means of the lawyer the questions connected with execution of sentence can be considered by court according to the petition of the lawyer.

31. If after receipt in court of the petition or representation on questions which according to part 3 of article 396 Code of Criminal Procedure of the Russian Federation are considered by court in the place of serving condemned punishments the convict is transferred to other correctional facility, materials are considered by court in the place of the actual serving of punishment by it. For this purpose all materials are instantly taken to court in the place of the actual serving condemned punishments.

32. In case of receipt in court of the petition or representation on the questions connected with execution of sentence, the judge checks whether it is subject to consideration in this court, whether it is given by proper person, whether the documents necessary for permission of matter of substance, and the copy of the corresponding judgments are attached to it.

If the arrived materials do not contain sufficient data for consideration of the petition or representation and in judicial session it is impossible to fill them, the court during preparation for its consideration returns these materials for the corresponding registration.

In case of lack of documents which the administration of the organization or body performing punishment shall provide the court has no right to refuse adoption of the petition of the convict, his legal representative or lawyer.

The court renders assistance in collection of data which cannot be received or requested by the convict, his legal representative or the lawyer or administration of the organization or body performing punishment.

33. During preparation for judicial session the court according to part 2 of article 399 Code of Criminal Procedure of the Russian Federation resolves issues of the place, date and time of judicial session, of the notice of participants of judicial session no later than 14 days about day of judicial session in time.

Owing to part 2 of article 399 Code of Criminal Procedure of the Russian Federation the judge should fulfill the requirement about the notice of persons specified regarding 1 this regulation, and in the presence of the petition of the convict for participation in judicial session - to provide direct participation in judicial session or to give opportunity to state the line item by use of systems of video conferencing.

The notice of participants of judicial session is allowed including by means of the SMS message in case of their consent to the notification in such a way and when fixing the fact of sending and delivery of the SMS notice to the addressee. The fact of consent to receipt of the SMS notice is confirmed by the receipt in which along with data on the participant of legal proceedings and its consent to the notification by similar method number of the mobile phone to which it goes is specified.

In case of absence of the convict who declared the petition for participation in judicial session, the court finds out the reasons for which it was not, and in the absence of reasonable excuses such absence is not obstacle for carrying out judicial session.

34. Draw the attention of courts that response the convict, his legal representative or from their consent of the petition by the lawyer or the response by the organization or body performing punishment, representations on the questions connected with execution of sentence does not interfere with them afterwards to take a legal action with such petition or representation.

35. Proceeding from provisions of part 4 of article 7 Code of Criminal Procedure of the Russian Federation the judge's ruling issued by results of consideration of the questions connected with execution of sentence shall be legal, reasonable and motivated. Taking into account that in the procedure established by Chapter 47 the Code of Criminal Procedure of the Russian Federation the court resolves, in particular, issues of replacement, appointment or mitigation of punishment, releases from serving sentence, the judge's ruling shall meet also the requirements of justice.

36. In the resolution accepted by court according to the procedure of article 399 Code of Criminal Procedure of the Russian Federation it is necessary to resolve issue of determination of the size and of distribution of procedural costs according to articles 131 and 132 Codes of Criminal Procedure of the Russian Federation.

37. The court has the right to issue the private decree (determination) if by consideration of materials on the questions connected with execution of sentence the circumstances specified regarding the 4th article 29 Code of Criminal Procedure of the Russian Federation are revealed.

38. Due to the adoption of this resolution to recognize by the USSR which is not operating in the territory of the Russian Federation the resolution of the Plenum of the Supreme Court of December 22, 1964 No. 18 "About some procedural questions which arose in court practice in case of execution of sentences".

Chairman of the Supreme Court of the Russian Federation

V. M. Lebedev

Secretary Plenuma, judge of the Supreme Court of the Russian Federation

V. V. Doroshkov

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