A new system of preventive measures alternative to remand in custody: First results of application, development prospects

We currently witness a heightened interest for the humanization of pena-lization measures, specifically, preventive measures, both in the theory and practice of Russian criminal procedure. There is well-grounded criticism of the fact that the number of remands in custody used as preventive measures is high and that their terms are prolongated many times, and on similar grounds, both in the Russian criminal procedure sphere and in the European Court of Human Rights during the examination of specific complaints. The analyzed statistical information showed that in 2015, remand in custody as a preventive measure in the criminal cases of grave and especially grave crimes was used for every second suspect or accused. It could not but contribute to the development of a system of preventive measures alternative to detention, and to the emergence of its new types. The authors analyze changes in the strict hierarchical system of preventive measures in view of Federal Law № 72-ФЗ enacted on April 18, 2018, which changed the procedure of applying the preventing measures of house arrest and bail and provided a measure that is completely new for Russian criminal process — the prohibition of certain actions. A considerable variety of restrictive measures included in the prohibition of certain actions, and the possi-bility of applying them in combination with a bail created a situation paradoxical for Russian criminal process when the application of a measure of prohibition of certain actions, that is a milder one in the hierarchy of restrictive actions, may restrict the rights and liberties of a person to a greater degree than a bail, which is a stricter mea-sure. Besides, the legislative definition of the essence of house arrest as complete isolation of a person from the society and the prohibition of certain actions as partial isolation has created a competition between these preventive measures when they are enforced in practice. The authors present convincing arguments to show that it is impossible to ensure complete isolation of a person form the society without placing that person in the pre-trial detention facility, which makes it possible to equal house arrest with a prohibition to leave a dwelling in a certain period within the framework of prohibiting certain actions. Although there are some questions regarding the application of preventive measures alternative to remand in custody, we should commend the efforts of lawmakers to develop a system of these measures, and the practice of their enforcement will certainly allow to eliminate the existing competition and solve specific problems of their selection and application. © 2020, Baikal National University of Economics and Law. All rights reserved.

Авторы
Bertovskij L.V. 1 , Kvyk A.V.2
Издательство
Baikal National University of Economics and Law
Номер выпуска
2
Язык
Русский
Страницы
242-255
Статус
Опубликовано
Том
14
Год
2020
Организации
  • 1 People’s Friendship University of Russia, Moscow, Russian Federation
  • 2 Public Law Institute, Vladivostok, Russian Federation
Ключевые слова
Alternative preventive measures; Bail; Detention; House arrest; Preliminary investigation; Prohibition of certain actions
Дата создания
02.11.2020
Дата изменения
02.11.2020
Постоянная ссылка
https://repository.rudn.ru/ru/records/article/record/65270/