of December 20, 2007 No. 18
About practice of appointment of punishment as courts in the form of restriction of freedom
Having discussed results of studying of practice of appointment of punishment as courts in the form of restriction of freedom (Art. 55 of UK), the Plenum of the Supreme Court of the Republic of Belarus notes that this type of punishment is applied by courts generally to persons guilty of making of the not constituting big public danger and less serious crimes according to sanctions of Articles of the Special part of UK.
The Republic of Belarus provided by the Law of June 9, 2006 No. 122-Z "About modification and amendments in Criminal, Criminal procedure and Criminal and executive codes of the Republic of Belarus concerning enhancement of procedure for execution of punishments and other measures of criminal liability" to destination of restriction of freedom without the direction of person in correctional facility of open type created to possibility additional terms of respect of the principle of individualization of criminal penalty by courts.
Necessary condition of the correct application of the penal statute in its amended wording is the complete and comprehensive investigation of data on the identity of the legal proceedings accused of the course, strict observance as requirements of Art. 62 of UK about the general beginnings of assignment of punishment, and provisions чч. 3-5 Art. 55 of UK containing restrictions in application of this type of punishment around of persons.
For the purpose of prevention of miscarriages of justice in case of criminal sentencing in the form of restriction of freedom, the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that penalty in the form of restriction of freedom (Art. 55 of UK) is imposed taking into account nature and degree of public danger of the committed crime, the identity of the guilty person and other facts of the case in case of belief of court that correction of the person accused is possible by assignment of the obligations limiting its freedom and in the conditions of implementation of supervision of it.
Proceeding from the general beginnings of assignment of punishment (Art. 62 of UK) not to allow condemnation to restriction of freedom of persons concerning whom the goals of criminal liability can be achieved by application of softer types of punishment provided by the sanction of the relevant article of the Criminal Code.
2. In the presence of the bases for election to the person accused of restriction of freedom and lack of obstacles to its appointment (the person accused does not belong to the category of persons listed in the p. 4 of Art. 55 of UK) the court shall determine conditions of its serving: with the direction in correctional facility of open type or without the direction in such organization. At the same time it must be kept in mind that restriction of freedom with the direction in correctional facility of open type cannot be applied to persons listed in the p. 5 of Art. 55 of UK, and restriction of freedom without the direction in correctional facility of open type can be appointed only to person having the permanent residence. Along with nature and degree of public danger of the committed crime, motives and the purposes of deeds courts need to consider fully data as it is negative, and positively characterizing the identity of the guilty person, and also availability of criminal record, permanent place of employment, marital status, etc.
3. Considering that restriction of freedom with the direction in correctional facility from the covered type can be appointed to full age able-bodied persons, courts need to research carefully data on the identity of persons accused, the state of health and degree of their working capacity.
4. Explain to courts that restriction of freedom without the direction in correctional facility of open type can be appointed when correction of the guilty person can be reached without its removal from the permanent address: in family, labor collective, in educational institution. At the same time it is necessary to consider the person accused relation to work preceding condemnation and behavior in life, availability of the dependents needing care and the help about its parties deserving attention other circumstances.
Restriction of freedom without the direction in correctional facility of open type can be appointed also to persons listed in item 6 of the p. 5 of Art. 55 of UK in case of conviction of court in its sufficiency for correction of person who committed crime.
Appointing restriction of freedom without the direction in correctional facility of open type, courts shall not assign to the person accused of obligation, provided by Art. 48-1 WICK as it enters competence of criminal and executive inspection.
5. Courts need to consider that according to Art. 114-1 of UK restriction of freedom to person who committed crime aged up to eighteen years is appointed for a period of six months up to three years.
To person which did not reach eighteen summer age by day of the resolution of sentence, restriction of freedom can be appointed only without the direction in correctional facility of open type.
6. In view of provisions of the p. 2 of Art. 360 of the Code of Criminal Procedure to court it is necessary not only to give motives of appointment in descriptive and motivation part of sentence to the person accused of punishment in the form of restriction of freedom, but also to prove the conclusions concerning conditions of its serving.
Courts should mean that concerning the faces guilty of making of several crimes for which they are condemned to restriction of freedom serving sentence conditions (with the direction in correctional facility of open type or without the direction in such organization) are determined only after purpose of final punishment by rules of the Art. of the Art. 71, 72 UK.
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