of September 30, 2010 No. 9
About application by courts of the measures of criminal liability provided by the Art. of Art. 77-79 of UK
Having discussed practice of application by courts of delay of execution of the punishment, condemnations with conditional non-use of punishment and condemnation without assignment of punishment (the Art. of Art. 77-79 of UK), the Plenum of the Supreme Court of the Republic of Belarus notes that these measures of criminal liability are important instrument for ensuring of correction of convicts without isolation from society. At the same time condemnation with delay of execution of the punishment and with conditional non-use of punishment are alternative measures of criminal liability for the relation not only to custodial sanction, but also to other types of the punishments prescribed by the Criminal code for making of crimes. They are implemented by implementation of measures of preventive, corrective and test nature concerning the convict and by means of punishment application threat if the convict will violate testing conditions.
At the same time courts do not attach due significance to application of delay of execution of the punishment, condemnation with conditional non-use of punishment and to condemnation without assignment of punishment and, in the presence to that the bases, do not discuss question of their application. In certain cases, appointing such measures, courts in sentence motivate the made decision insufficiently.
For the purpose of ensuring the correct and uniform application of the measures of criminal liability provided by the Art. of Art. 77-79 of UK, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that condemnation with delay of execution of the punishment, with conditional non-use of punishment, and also condemnation without assignment of punishment are forms of realization of criminal liability and achievement of its purposes by implementation concerning the guilty person of measures of preventive, corrective and test impact, but without application of criminal penalty.
2. In case of appointment person who committed crime delays of execution of the punishment, conditional non-use of punishment or condemnation without assignment of punishment to courts should consider nature and degree of public danger of the committed crime, the circumstances mitigating and aggravating responsibility, the identity of the guilty person, the come effects and other facts of the case. Courts should proceed from circumstances of making of criminal action, data characterizing conditions and conduct of life of person which made it of readiness of the guilty person to lead law-abiding life as a result of test and preventive control of his behavior.
3. Draw the attention of courts that in the absence of the prohibitions provided by the law to application of Art. 77 or Art. 78 of 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 reduction in sentence of motives of the made decision. At the same time it must be kept in mind that delay of execution of the punishment on the consequence in law and nature of right restrictions is more severe measure, than conditional non-use of punishment.
Delay of execution of the punishment should be applied in cases when assessment by court of extent of its correction by results of testing and possibility of release of the convict from the imposed penalty is necessary for goal achievement of criminal liability and extent of correction of person.
The decision on conditional non-use of punishment shall be based on belief of court that the goals of criminal liability will be achieved without real serving sentence.
4. Explain to courts that corrective impact of condemnation without assignment of punishment (Art. 79 of UK) consists in assignment on person who committed crime, the status of the convict and implementation behind such person during the term of criminal record of preventive observation.
Condemnation without assignment of punishment can be applied if in the course of judicial review of criminal case concerning person who for the first time committed the crime which is not belonging to the category heavy or especially heavy it is determined that owing to long irreproachable conduct after crime execution this person proved the aspiration to law-abiding behavior and taking into account nature and degree of danger of this crime, the identity of the guilty person its further correction is possible without punishment application.
Faultlessness of behavior of the guilty person after crime execution and to the resolution of sentence should be determined in each case proceeding from the identity of the person accused and sufficiency of the specified term for conclusion that at person the resistant orientation on law-abiding behavior was created.
5. Draw the attention of courts that in case of the resolution of conviction according to provisions of Art. 352 of the Code of Criminal Procedure the court shall discuss question not only of possibility of appointment to the guilty person of one of the punishments prescribed by the sanction of the relevant article of the Special part of UK but also about condemnation with delay of execution of the punishment, conditional non-use of punishment or without assignment of punishment.
Applying the measures of criminal liability provided by the Art. of Art. 77-79 of UK in descriptive and motivation part of sentence to court it is necessary to state motives of application of specified measures.
The decision on application of the Art. of Art. 77-79 of UK is formulated in substantive provisions of sentence.
The decision on application of the Art. of the Art. 77, 78 UK is made on person who made two or more crimes not for each crime separately but only in case of purpose of final punishment in case of frequency of the crimes which are not forming set (Art. 71 of UK) or on cumulative offenses (Art. 72 of UK).
In case of application to the person accused of delay of execution or conditional non-use of punishment the type of correctional facility in substantive provisions of sentence is not specified.
6. Draw the attention of courts that delay of execution of the punishment and conditional non-use of punishment can be applied only to for the first time condemned to imprisonment therefore the court has no right to apply these measures of criminal liability to person who was earlier condemned to imprisonment for crime for which criminal record is not extinguished and it is not removed in the procedure established by the law.
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