PART 11. PROCEEDINGS IN THE CASSATION COURT

CHAPTER 49. Implementation of court decisions

Article 427. The court decision coming into force and its implementation

The decision made by the first instance court come into effect after the expiry of appeal deadline in the appellate court, if it was not appealed. In the case of an appeal, the court decision, if it not turned down, comes into effect after the expiry of the established deadline for appealing by participants of the proceedings, if it is not appealed against. The decision of the cassasion court comes into effect at the moment of announcement
The court decision which came into effect is implemented by the court which made the decision within 3 days after coming into effect, or the returned of the case from appellate or cassation court.
The decision on acquittal or exemption of the defendant from punishment is handed for implementation by the court which made the decision. In this case the arrested defendant is immediately released in the court room after the announcement of the verdict.
In accordance with the procedure envisaged in part 2 of this article, released from arrest, is also the defendant who was convicted without appointing a punishment or with a punishment which is not related to imprisonment, or was sentenced to probational imprisonment, or with postponement of the verdict, or for an other term, which does not exceed the period of arrest or preventive measures or the term changed as result of cassation decision of the given person.

Article 428. The instruction to hand the court decision for implementation

The instruction to hand the court decision for implementation with the copy of the decision, and in the case of changes based on appellate decision, also with the copy of the appellate court decision, is forwarded to those persons or the body which are entitled to carry out court decisions.
At the same time, the court must inform the family of the convict who is under arrest or sentenced to imprisonment about forwarding the court decision for implementation.
The bodies which carry out court decisions immediately inform the court which made the decision about the implementation of the decision. The administration of the institution which executes criminal punishment must inform the court which made the decision and the family of the convict about the place where he serves his sentence, about his movements and about his release.
If the court decision deprives the convict of honorary, military or special titles and ranks, or it was necessary to raise the issue of depriving him of state decorations, the court which made the decision sends the copy of the decision to the body which awarded the convict with the honorary, military or special titles or ranks, or with state decorations.

Article 429. Providing the rights of the convict while implementing the court decision While implementing the court decision, the procedural protection of the convict's right is provided, related to the implementation of the court decision.

The convict is entitled to appeal to the court which made the decision for the postponement of the implementation of the court decision, for exemption from the punishment due to illness, disability or expiration of the postponement, for parole and for replacement of the unserved part of the punishment with a softer punishment, for the change of conditions in the correction institution, and other appeals envisaged in this Code.
When the court discusses the issues related to the implementation of the its decision, the convict is entitled to participate in the court session and to testify, present evidences, initiate petitions and announce challenges, to get familiarized with all materials of the case, and to appeal against the court's actions and decisions.
The convict can administer his rights personally or with the assistance of the lawyer. The issues related to the implementation of court decisions concerning the under-aged convict or the one with physical or mental handicaps must be considered in the court with mandatory participation of the lawyer.

Article 430. Resolution of doubts and uncertainties concerning the court decision

The court which adopted a verdict or some other decision is entitled to resolve the doubts and uncertainties which arise in the course of its implementation:
to determine accurately the measure of calculated punishment, if not otherwise established in the court verdict;
to establish another type of an institution executing criminal punishment where the convict must serve his imprisonment, if not otherwise established in the verdict;
to resolve the issue of prevention measures, redistribution of court costs, disposal of evidences, if not otherwise resolved or resolved uncertainly.
To interpret the uncertainties of its decisions.

Article 431. Postponement of the implementation of the court decision

The court which made a decision to imprison the convict is entitled to postpone its implementation if the following one of the following grounds:
severe illness of the convict which prevents him from serving the sentence until he recovers
the pregnancy of the convict at the moment of implementation of the court decision, for no longer than 1 year;
the female convict has small children, until the child becomes three years old;
when immediate punishment can cause especially severe consequences for the convict or his family members, in the case of fire or other natural disaster, due to the severe illness of the only provider in the family, death, or other exceptional case, by a period established by the court, but not longer than three months.
The payment of a fine can be postponed or divided, up to six months, if the immediate payment of the fine is impossible for the convict.
The court resolves the issue of its decision concerning the civil claim or other damage, taking into account the specific circumstances of the case and the financial situation of the convict.
The issue of postponement of implementation of the court decision is discussed by the court, by initiative of the convict, his legal representative, close relatives, the lawyer, other participants, as well as, by initiative of the court which made the decision.

Article 432. Exemption from punishment due to illness

In the case when the convicted sentences to imprisonment develops chronic mental or some other severe disease while serving the sentence, which is an obstacle to serving the sentence, the court, by petition from the administration of the penitentiary, which must be based on the conclusion of the medical commission, is entitled to decide to exempt the convict from further serving the sentence.
While exempting the convict who has a chronic mental disease, the court is entitled to apply to him enforced medical measures or to send him for guardianship to the public health bodies or to the relatives.
When resolving the issue of exemption of severely ill convicts from the sentence, the court takes into account the gravity of the committed crime, the personality of the convict and other circumstances.
When exempting the convict from the serving the further sentence, the court is entitled to exempt him not only from the main sentence but also from the additional one.

Article 433. Exemption of the convict whose court decision implementation is delayed, as well as the elimination of the delay in the implementation of the court decision

The court exempts from the sentence the convict whose court decision is delayed by petition from the body in charge of execution of the punishment. The petition for exemption from the punishment can be also submitted by the convict, his lawyer or legal representative.
The court eliminates the delay in the execution of the imprisonment sentence and sends the convict to serve the sentence by petition of the body in charge of execution of the sentence.

Article 434. Release on parole and replacement of the sentence with a less strict one

The court, by petition of the body in charge of execution of punishment, releases on parole and substitutes the unserved part of the sentence with a less strict punishment. In relation to those who serve the sentence in the disciplinary battalion, the court applies these measures by petition of the administration of the disciplinary battalion. A petition for release on parole and substitution of the unserved part of the sentence with a less strict punishment can be submitted also by the convict, his lawyer or legal representative.
The court exempts from the sentence prohibiting the occupation of certain positions and practicing certain activities, by petition of the NGOs, the convict or his lawyer.
In the case when the court rejects the release on parole and substitution of the unserved part of the sentence with a less strict punishment, the repeated discussion of this issue can take place no sooner than in 6 months after the refusal.

Article 435. Changes in the conditions of imprisonment

The transfer of convicts from one penitentiary to another with a less severe regime is done by the court by petition of the administration of the penitentiary, or by petition of the convict or his lawyer.
In the case when the court rejects the transfer of the convict from one penitentiary to another with a less severe regime, the petition can be discussed again no sooner than in 6 months after the rejection of the petition.

Article 436. Inclusion of the time spent in a medical institution in the calculation of the term

The time spent by a convict sentenced to imprisonment in a medical institution is calculated in the term of his punishment.

Article 437. The courts which resolve the issues concerning the execution of court sentences

The court which made the decision resolves the issues concerning the execution of the decision.
If the court decision is executed beyond the court district, then this issue is resolved by the same instance court of that district. In the given case, the copy of the decision is sent to the court which made the decision.
The issues concerning: the exemption of ill or invalid convicts, the release on parole and substitution of the unserved part of the sentence with a less strict punishment, the transfer of convicts from one penitentiary to another with a less severe regime are resolved by the court in the area where the convict serves the term, no matter which court made the decision.
The issues concerning: the shortening of the probation period, or termination of probation and sending the convict to serve the court sentence, the termination of the delayed sentence, exemption from punishment, termination of delay in punishment and sending the convict to serve the sentence, are resolved by the court at the place of residence of the convict.

Article 438. Procedure of resolving the issues concerning the execution of court decisions

Issues concerning the execution of court decisions are considered by the court at the court session with participation of the convict. In cases envisaged in this Code the presence of the lawyer is also mandatory.
If the issue concerns the execution of the civil claim, the civil claimant is also summoned. The failure of these persons to come does not inhibit the consideration of the case. When the court resolves the issue of release of the convict due to illness or disability, the presence of the representative of the medical commission which made the conclusion.
The issues of: the release on parole and substitution of the unserved part of the sentence with a less strict punishment, the transfer of convicts from one penitentiary to another with a less severe regime, are considered in the court in the presence of the body in charge of execution of punishment.
The consideration of the case begins with the announcement of the petition by the chairman, after which the court examines the evidences and hears the opinions of persons present at the court session. The last to take the floor is the convict or his lawyer. After that, the court retreats to the deliberations room to make a decision.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable
circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.