RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 20, 2011 No. 21

About practice of application by courts of the legislation on execution of sentence

Due to the questions arising at courts in case of application of regulations of Chapter 46 of the Code of Criminal Procedure of the Russian Federation ("The appeal to execution of sentences, determinations and resolutions") and Chapter 47 of the Code of Criminal Procedure of the Russian Federation ("Production on consideration and permission of the questions connected with execution of sentence"), and for the purpose of ensuring unity of court practice the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation" decides:

2. Courts should mean that consideration and permission of the questions connected with execution of sentence is performed in the form of justice in proceeding in open court, except as specified, specified regarding the 2nd article 241 Code of Criminal Procedure of the Russian Federation. With respect thereto the court explains to participants of judicial session of their right, obligation and responsibility and provides possibility of implementation of these rights (part 1 of article 11 Code of Criminal Procedure of the Russian Federation).

3. When person who made the petition for appeal (representation) recalls she (he) based on part 3 of article 389.8 Code of Criminal Procedure of the Russian Federation, in the absence of claims of other persons or representation of the prosecutor resolution of the Trial Court, proceeding from provisions of Articles 390, of 391 Code of Criminal Procedure of the Russian Federation, it is considered taken legal effect after 10 days - the term of its appeal in appeal procedure. At the same time does not matter in what terms prior to judicial session of Appeal Court the claim or representation are withdrawn (within the term established for appeal to or after the direction of criminal case in Appeal Court).

4. Taking into account part provisions 2 Articles 391, of part 2 of Article 389.2 and Item 53.3 of article 5 Code of Criminal Procedure of the Russian Federation the intermediate judgments which are not subject to independent appeal in appeal procedure take legal effect and address execution immediately. Their legality and justification can be checked in appeal procedure along with check of legality and justification of the final decision on case.

5. Considering the questions connected with replacement of punishment in case of malicious evasion from its serving, courts shall find out all circumstances which can affect legality of the made decision regarding determination of term or the amount of unexpired punishment or conditions which attract need of replacement of punishment.

Explain to courts that the decision on replacement of punishment is made taking into account nature and degree of public danger of crime for which person is condemned, the identity of the guilty person, and also the reasons for which the convict evaded from serving of the penalty imposed to it.

In law sense, establishment of other conditions, except failure to pay penalty in time (for example, the numerous prevention of the convict judicial police officers-contractors about possibilities of replacement of penalty with other punishment, confiscation of explanations at it about the reasons of failure to pay penalty, submission of data on property status of the convict and sources of its income), for recognition of the convict is malicious evading from payment of penalty it is not required. However by consideration of question of replacement of the fine which is ordered to pay as primary punishment, other type of punishment to court it is necessary to check arguments that the convict did not evade from payment of penalty, but did not pay it on reasonable excuses in time.

Explain to courts that the fact of absence in itself at the convict of money cannot be recognized reasonable excuse for failure to pay penalty in time. The resolutions of sentence which appeared later such circumstances owing to which the convict is deprived of opportunity to pay penalty in time can be considered as reasonable excuses (for example, loss of ability, stay on treatment in stationary medical institution, loss of earnings or property owing to circumstances which did not depend from the face).

5.2. The fine which is ordered to pay as primary punishment, except as specified its appointments in the amount of, estimated proceeding from size, the multiple cost of subject or the amount of commercial bribery or bribe, in case of malicious evasion from its payment is replaced with any (including the Criminal Code of the Russian Federation who is not provided by the sanction of the relevant article of the Special part) other primary punishment, the stipulated in Article 44 Criminal Code of the Russian Federation, except imprisonment. At the same time the restrictions set for purpose of separate types of punishments by Articles of the General part of the Criminal Code of the Russian Federation shall be considered (in particular, part 4 Articles 49, part 5 of Article 50, part 6 of Article 53, part 7 of article 53.1 Criminal Code of the Russian Federation).

The penalty in the amount of, estimated proceeding from size, the multiple cost of subject or the amount of commercial bribery or bribe, in case of malicious evasion from its payment is replaced with punishment within the sanction of the relevant article of the Special part of the Criminal Code of the Russian Federation.

In case of determination of type and term of punishment which replaces penalty in case of malicious evasion from its payment it is necessary to take the size of the ordered to pay fine and that its part which is not paid to convicts into account.

5.3. The term of punishment which replaces penalty cannot exceed upper limit of the corresponding type of punishment set by the sanction of Article of the Special part of the Criminal Code of the Russian Federation if such type of punishment is provided by the corresponding norm. The lower limit of punishment which replaces penalty in this case cannot be below the lowest limit of the corresponding type of the punishment established by the sanction of Article of the Special part of the Criminal Code of the Russian Federation.

If punishment which replaces penalty, is not provided by the sanction of Article of the Special part of the Criminal Code of the Russian Federation, the term of this punishment cannot exceed upper limit and cannot be below lower limit, established for it by the General part of the Criminal Code of the Russian Federation.

5.4. In case the fine which is ordered to pay as primary punishment along with which the additional punishment (provided by the sanction of the relevant article of the Special part of the Criminal Code of the Russian Federation or appointed according to articles 47 or 48 Criminal Code of the Russian Federation was imposed is replaced), the issue of replacement only of primary punishment shall be resolved. The additional punishment imposed according to the court verdict is performed independently.

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