of March 26, 2002 No. 1
About appointment of criminal penalty as courts
Due to the enforcement of the Criminal code of the Republic of Belarus of 1999 in practice of application of the regulations regulating assignment of punishment there were questions requiring explanation. For the purpose of ensuring the correct and uniform application of provisions of the penal statute Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that punishment is the enforcement power of criminal law action applied according to the court verdict to person condemned for crime, and consisting in the deprivation or restriction of the rights and freedoms of the convict provided by the law.
To person found guilty of crime execution the punishment prescribed only by the Criminal code can be imposed. At the same time heavier punishment cannot be imposed, than that which was subject to application during crime execution.
2. Punishment application as measures of criminal liability is based on the principles of legality, equality of citizens before the law, inevitability of responsibility, personal guilty liability, justice and humanity (Art. 3 of UK).
Punishment is determined on the basis of conviction of court in its need and sufficiency for correction of person who committed crime, preventions of new socially dangerous acts as from the convict, and other persons, and also recovery of social justice.
Only just punishment of the guilty person promotes effective implementation of the purposes of criminal liability.
3. Proceeding from the general beginnings of assignment of punishment (Art. 62 of UK) the court determines punishment in the limits set by the sanction of Article of the Special part of UK providing responsibility for the committed crime.
At the same time the court shall consider also the provisions of the General part of UK relating to determination of type and the amount of punishment for the committed crime namely: stage of implementation of criminal intent, the reason owing to which the crime was not finished, forms of partnership and extent of participation of person in crime, and also the special rules of assignment of punishment established by the Art. of Art. 65-76 of UK.
4. According to the principle of individualization of punishment the court chooses punishment taking into account nature and degree of public danger of the committed crime, motives and the purposes of deeds, the identity of the guilty person, nature of the done harm and the extent of the caused damage, circumstances mitigating and aggravating responsibility, and for private prosecution - and opinions of the victim.
The specified circumstances are estimated by court in total, and on their basis the court shall motivate the chosen measure of punishment in sentence.
5. Courts should provide steadily application of the severe measures of punishment provided by the law to persons who committed heavy and especially serious crimes, in particular as a part of organized groups or the criminal organizations.
At the same time it is fully necessary to use the opportunities for assignment of punishment given by the law, not connected with imprisonment to persons who for the first time committed the crimes which are not constituting big public danger or less serious crimes.
If along with imprisonment the sanction of the law under which person is found guilty, provides also other, softer types of punishment, in case of the resolution of sentence it is necessary to discuss question of assignment of punishment, not connected with imprisonment (the p. 2 of Art. 62 of UK). Imprisonment for such crimes can be appointed if the court, proceeding from the specific facts of the case and the identity of the guilty person, comes to conclusion that goal achievement of criminal liability and, first of all, the prevention of new crimes from the guilty person is impossible without its isolation from society.
6. It is necessary for courts comprehensively, fully and objectively to research the circumstances which are characterizing the identity of the person accused, having essential value for determination of type and the amount of punishment.
In case of assignment of punishment are subject to accounting independently and in full this as it is negative, and positively characterizing the identity of the guilty person.
7. Courts should mean that the list of the circumstances mitigating responsibility (Art. 63 of UK), is not limited to the law. As such circumstances, in particular, can be recognized: crime execution owing to accidental combination of circumstances; availability in the past of special merits; stay dependent on minor children or disabled parents and others. Recognition of such circumstances by court mitigating shall be motivated in sentence.
8. The list of the circumstances aggravating responsibility is exhaustive. Other circumstances which are not specified in Art. 64 of UK cannot be recognized court as those.
In case of the solution of question of recognition by the circumstance aggravating responsibility crime execution in the state of intoxication caused by alcohol intake, drugs, the psychotropic, toxic or other stupefying substances (item 17 p.1 of Art. 64 of UK), to courts it is necessary to consider whether in character criminal action was connected with intoxication of the guilty person, and also circumstances under which person appeared in such condition. In particular, state of intoxication of the minor during crime execution can not be considered as the circumstance aggravating responsibility if he was brought to such state for the purpose of inducement to crime execution.
Cannot be considered as the circumstance aggravating responsibility, crime execution by person who earlier committed crime if concerning the previous crime prescriptive limit of criminal prosecution expired, the criminal record is extinguished or removed in accordance with the established procedure or the law eliminates crime of the act made in the past and also when person was exempted from criminal liability on the bases provided by the penal statute.
9. Draw the attention of courts that if this or that circumstance specified in Art. 63 or Art. 64 of UK is provided in disposition of Article of the Special part of UK as essential element of offense, it shall not be considered respectively as mitigating or aggravating responsibility.
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