of March 25, 2009 No. 1
About appointment of custodial sanction as courts
Having discussed results of generalization of court practice, the Plenum of the Supreme Court of the Republic of Belarus notes that courts in general respect the provisions of the law regulating assignment of punishment in the form of imprisonment.
This type of punishment is reasonably appointed by courts within the sanctions established by the penal statute for heavy and especially serious crimes, in case of dangerous and especially dangerous recurrence of crimes when forced isolation of persons with steady antisocial bents, repeatedly offenders and not persons interested to become on the way of correction, is caused by need of prevention of making of new crimes by them.
At the same time significant amount of convicts is constituted by persons who made the criminal legal sanctions which are not constituting big public danger and less serious crimes, for which have, as a rule, alternative nature, providing possibility of wide choice of other implementers of the purposes of criminal liability. Owing to requirements of the p. 2 of Art. 62 of UK custodial sanction can be appointed by court only on condition that these objectives cannot be achieved by application of milder pinishment prescribed by the relevant article of the penal statute. Therefore follows courts, estimating the degree of public danger of deeds, circumstances mitigating responsibility, data on the identity of the guilty person, his behavior after crime execution to avoid assignment of punishment in the form of imprisonment in situations when the facts of the case testify to possibility of correction of person without isolation from society.
Besides, application concerning the convict of the penalty imposed according to the court verdict is not the single implementer and goal achievements of criminal liability. Correction of persons who for the first time committed crime, and the prevention of making of new crimes by them can be provided, in particular, with condemnation with execution delay (Art. 77 of UK) or with conditional non-use (Art. 78 of UK) of custodial sanction.
In view of that purpose of just punishment is possible only in case of steady observance by courts of the principle of its individualization, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that criminal penalty in the form of imprisonment attracts not only isolation of the convict from society, but also essential restriction of its other rights and freedoms. Imprisonment can be appointed only in the cases provided by the law, for making of the crimes constituting considerable public danger when the court taking into account nature of the committed crime and the identity of the guilty person comes to conclusion that its isolation will provide protection of society against criminal encroachments and will promote the purposes of criminal liability.
2. For the purpose of strict observance of provision of the p. 2 of Art. 62 of UK if the sanction of the article of the Criminal Code according to which person is found guilty along with imprisonment prescribes softer types punishments, in case of the resolution of sentence court the question of application of the punishment which is not connected with imprisonment shall be discussed.
The belief of court in need of application of custodial sanction, including for short terms, shall be based on comprehensive, complete and objective investigation of case papers, assessment of nature and degree of public danger of the committed crime, the identity of the guilty person and all circumstances influencing its measure of responsibility. At the same time specific circumstances on case and data on the personality owing to which by court other measures of criminal law action, except custodial sanction cannot be elected shall be given in the court verdict.
3. Imposing penalty to persons which allowed recurrence of crimes in addition to nature and degree of public danger of again committed crime, courts should consider quantity of the outstanding and not removed criminal records of the guilty person, nature of the crimes committed by it in the past, the reasons and conditions promoting recurrence of crimes, having at the same time in type that the p. 2 of Art. 65 of UK does not contain restrictions in appointment to such persons of types of punishments alternative to imprisonment.
4. Draw the attention of courts that need of application according to Art. 107 of UK of enforcement powers of safety and treatment to the persons who committed crime having chronic alcoholism, drug addiction or toxicomania in itself does not oblige court to assignment of punishment in the form of imprisonment.
5. In case of determination of term of deprivation of freedom for specific crime the court is guided by the limits set by Art. 57 of UK and the sanction of Article of the Special part of UK according to which the committed crime is qualified. At the same time term of deprivation of freedom shall be necessary and sufficient for goal achievement of criminal liability. To person who committed crime aged up to 18 years, imprisonment is appointed taking into account the restrictions set by Art. 115 of UK.
To courts not to allow appointment of unreasonably mild pinishments to the persons who committed the heavy and especially serious crimes integrated to intentional infringement of life and health of the person, corruption, and also allowed dangerous and especially dangerous recurrence of crimes.
6. In case of assignment of punishment in the form of imprisonment for a period of up to five years to person for the first time condemned to this type of punishment, the court according to Art. 352 of the Code of Criminal Procedure shall discuss question of availability of the bases for the resolution of sentence with delay of execution of the punishment or its conditional non-use. For lack of the restrictions provided by the law to application of Art. 77 or 78 UK and availability at court of belief that the goals of criminal liability can be achieved without serving of the imposed penalty the court should resolve issue what of these measures of criminal liability in this case is subject to application with reasons for such decision in sentence.
7. Courts need to consider that the type of correctional facility with the corresponding conditions of the mode for serving of imprisonment is determined in case of the resolution of sentence based on provisions of the Art. of Art. 57 and 115 of UK.
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