House arrest: competition with preventive measures applied by court decision

Abstract

Background. Improving legislation sometimes leads to results that were not orig-inally envisaged by the legislator. The addition of Article 108 of the Code of Criminal Pro-cedure to Part 1.1. became a kind of trigger, which subsequently led to the introduction of a number of novelties in Chapter 13 of the Code of Criminal Procedure. The ban on the use of detention against entrepreneurs naturally shifted attention to its alternative (the next most severe measure of restraint) – house arrest. However, the change in the legal nature of house arrest, expressed in the presentation of its definition through isolation from society, recreated the problem of its application for entrepreneurs, since new restrictions no longer allowed them to effectively conduct economic activities and even led to the bankruptcy of enterprises. In 2018, the Code of Criminal Procedure of the Russian Federation was sup-plemented by Article 105.1, which introduced a fourth measure of restraint applied exclu-sively by the court – a ban on certain actions. Isolation from society, which is absent from this measure of restraint, no longer blocked the implementation of economic activity, which is what the legislator has been seeking for almost 10 years. However, as a result, the new measure only reproduced the previously existing (in the original version) house arrest. The purpose of the work is to substantiate the need to eliminate competition between preventive measures applied by court decision. Materials and methods. The article used scientific pa-pers on the issue, materials of legislative practice, as well as the results of author’s research. The methodological basis was the universal dialectical method of cognition. Also, during the preparation of the article, the following methods were implemented: logical, formal legal, sociological, expert assessments. Results. In the course of the study, it was suggested that the existing competition between preventive measures reduces their effectiveness and does not allow them to achieve the goals set for them by the criminal procedure legislation. Conclusion. The authors came to the conclusion about the possibility of removing Article 105.1. from Chapter 13 of the CPC. At the same time, it is proposed to restore the definition of house arrest, consolidating it through “restrictions related to freedom of movement”, as well as to exclude its election in relation to suspects or accused of committing particularly serious crimes.

Keywords

• preventive measures
• detention
• house arrest
• prohibition of certain actions
• competition