Some problems in calculating and counting the period of prohibition of certain actions against the period of house arrest, detention and imprisonment

Abstract

The subject of the article is the procedure of application of prohibition of certain actions and the rules of counting the term of this preventive measure against the term of house arrest, detention and imprisonment. The relevance of the chosen topic is due to the introduction of uncoordinated changes in criminal procedural and criminal legislation, which led to legal uncertainty and lack of a unified approach in law enforcement. The authors solved the following problems: to disclose the content of prohibition of certain actions; to determine the moments of the beginning and end of prohibitions; to establish the proportions of offsetting periods of prohibition of certain actions with other measures of restraint; to formulate rules of offsetting periods of prohibition of certain actions and deprivation of liberty. The methodology of the study consisted of general scientific and special scientific methods: dialectical, formal-logical, comparative-legal, systemic, analysis and synthesis. On the basis of these methods the article provides an analysis of the procedure for calculating the period of prohibition of certain actions. It is pointed out that the gap of the present regulation is the lack of cut-off terms of injunctions' validity, stipulated in the items 2-6 of part 6 of article 105. 6 of Art. 105.1 of the CPC of the RF, the procedure for their extension and control. The Article stresses that the prohibition of leaving the dwelling is linked to the isolation of the person from society, and therefore the time of such prohibition should be taken into account when replacing this preventive measure with house arrest or remand in custody. In the reverse situation, there should also be an offsetting of time limits. Based on the scope of the imposed restrictions, the authors justify the following proportion in the RF CCrP: 1 day of detention equals 2 days of house arrest and 3 days of prohibition to leave the dwelling. Particular attention is paid to the issue of crediting the time of prohibition to leave the dwelling premises into the term of punishment. Based on an analysis of case law, the authors identify three approaches. The first is that the period of prohibition of certain actions under para. 1 P. 6 of Article 105.1 of the RF CCrP, should not be counted as part of the imprisonment sentence, as this is not provided for in Article 72 of the RF CC. According to the second approach, the period of prohibition to leave the dwelling premises should be counted as part of the term of imprisonment, using by analogy the provisions on counting the term of house arrest as part of the term of imprisonment. A third approach is that the time of prohibition to leave the premises should be counted indirectly: through correlation with another preventive measure - detention, in order to take into account the type of correctional facility assigned to the person. The authors adhere to the second position, but propose a different proportion of offsetting, different from house arrest, which should be enshrined in the Russian Criminal Code. The conclusion draws conclusions on the shortcomings of the regulation of the new measure of restraint, emphasises the criminal-law nature of the institution of setoff and proposes amendments to the RF CCrP and the RF Criminal Code. The authors declare no conflicts of interests.