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LETTER OF THE SUPREME COURT OF UKRAINE

of June 30, 2005 No. 5-10n308

Relatively about application of the Law of Ukraine of May 31, 2005 "About amnesty"

May 31, 2005. The Verkhovna Rada of Ukraine adopts the Law "About Amnesty" which took effect on June 23, 2005 (from day of publication in the newspapers "Ukra§ni Golos" and "Uryadovy of hens' ¾r").

According to Art. 8 of the Law its accomplishment is assigned only to courts. The law is subject to accomplishment within three months from day of its publication (Art. 17 of the Law).

Considering large number of cases and materials which will arrive for consideration of courts, and short term of accomplishment of the Law to chairmen of Appeal and local courts it is necessary to take the urgent measures directed to deep studying by judges of the Law, ensuring timely and high-quality consideration of idea of application of amnesty, creation of proper operating conditions of local courts and effective interaction with prosecutor's office, bodies of inquiry and pretrial investigation and bodies of accomplishment of punishments. Recommend to courts to implement in case of need specialization of judges who will consider materials about application of amnesty, and also consider idea of application of amnesty it is direct in correctional institutions. As Art. 8 of the Law expanded circle of subjects which have the right to initiate question of application of amnesty to courts should take measures to exception of cases of adoption of repeated solutions of rather same face.

In case of accomplishment of the Law courts need to mean that the court resolves issue of application of amnesty according to Art. 8 of the Law on own initiative, at the initiative of the prosecutor, bodies of inquiry and pretrial investigation, body or organization of accomplishment of punishments, and also at the initiative of the person accused, the defendant or the convict, their defenders or legal representatives.

b) the judge of local court in the place of residence osuzhdennogootnositelno persons, accomplishment of sentences, which delayed according to the procedure, provided by the law, the conditionally convicts exempted from serving sentence with testing and which are condemned to the punishments which are not connected with imprisonment;

c) the judge of local court in the place of serving nakazaniyaotnositelno of convicts who are in places of detention or restrictions of freedom or content in disciplinary battalion of the military personnel serve sentences in the form of arrest (including concerning persons who are condemned by courts of foreign states and who serve sentence in the territory of Ukraine).

It is necessary to orient courts to the fact that they, resolving issue of acceptance in consideration of idea of application of amnesty, shall demand from bodies which enter with representation that the last met the requirements of the law.

Representation of bodies of inquiry and pretrial investigation (concerning persons, criminal cases and materials about whose crimes are in their production) shall be approved with the prosecutor,

representation of body of accomplishment of punishments (concerning persons, accomplishment of sentences, which delayed according to the procedure, provided by the law, the conditionally convicts exempted from serving sentence with testing and which are condemned to the punishments which are not connected with imprisonment), - with law-enforcement body which exercises control of behavior of the convict,

representation of the chief of criminal and executive organization (concerning convicts who are in places of detention or serve sentences in the form of arrest, restrictions of freedom or content in disciplinary battalion of the military personnel) - with the relevant supervisory committee or juvenile service, commands of disciplinary battalion, military unit, the chief of garrison, governing bodies of Military service of law and order in the Armed Forces of Ukraine.

Representation shall be motivated. Documents or properly their attested copies which confirm circumstances or the facts which matter for application or non-use of amnesty are attached to it.

To representation concerning convicts who are in places of detention or serve sentence in the form of arrest, restrictions of freedom or content in disciplinary battalion of the military personnel shall be enclosed the copy of sentence (in exceptional cases - the statement from sentence with indication of circumstances of crime for which this person is condemned), the certificate of encouragement and collection, other data on behavior of the convict, its relation to work, the personal record of the convict.

Representation (statement) shall be considered by the judge solely in judicial session with obligatory participation of the prosecutor. According to Art. 10 of the Law in judicial session person concerning whom the issue of application of amnesty is resolved is called. It has the right to offer explanation. Absence of this person if it is properly informed on time and the place of consideration of representation (statement), does not stop consideration of the case.

With properly the drawn-up powers the defender participates in judicial session.

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