CC BY
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DOI 10.46741/2686-9754-2021-15-1-176-184 UDC 343.12
Some Procedural Issues Related to the Enforcement of Restrictive Measures in the Form of Prohibition on Certain Actions, House Arrest, and Bail in the Work of Probation Inspectorates
LYUDMILA A. KOLPAKOVA
Vologda Institute of Law and Economics of FSIN Russia, Vologda, Russian Federation
ORCID: https://orcid.org/0000-0002-9937-8462, e-mail: [email protected]
Abstract. Introduction: the article analyzes procedural issues in the activities of probation inspectorates in connection with the monitoring of suspects and accused in the execution of restrictive measures in the form of house arrest, bail, prohibition on certain actions. Aim: on the basis of generalization of judicial practice, the activities of probation inspectorates, we identify patterns and procedural problems arising from the implementation of certain measures of coercion, within the framework of which the probation inspectorates are competent to exercise control, as well as to develop proposals for eliminating legal gaps and give organizational recommendations of procedural nature. Methods: general scientific (formal and dialectical logic, system analysis, interpretation) and specific scientific methods (historical legal, comparative legal, formal dogmatic and the method of interpreting legal norms) were used. Results: in the course of the analysis of domestic and foreign legal practice in the field of selection and execution of restrictive measures in the form of house arrest, bail, prohibition on certain actions, some patterns and legal gaps were identified that require legislative decisions, as well as difficulties with the interpretation of relevant legal norms and court decisions in activities of probation inspectorates; proposals were put forward to overcome the identified problems. Conclusions: the appointment and execution of restrictive measures in the form of house arrest, prohibition on certain actions, and bail are consistent with the norms of international law, decisions of the European Court of Human Rights; control functions in relation to persons under investigation are attributed to the competence of probation inspectorates, which are experiencing difficulties due to the lack of elaboration of certain mechanisms for the implementation of these coercive measures; the solution to the identified problems is seen in filling legal gaps in some of the procedural powers of probation inspectorates and improving judicial practice in terms of sufficient specification of court decisions and strict compliance with the requirements of legality.
Keywords: house arrest; prohibition on certain actions; bail; penal inspections; the control; preventive measure; court decisions.
12.00.09 - Criminal procedure, criminalistics; intelligence-gathering activity.
For citation: Kolpakova L.A. Some procedural issues of enforcement of restrictive measures in the form of prohibition on certain actions, house arrest and bail in the activities of probation inspectorates. Penitentiary Science, 2021, vol. 15, no. 1 (53), pp. 176-184. DOI 10.46741/2686-9754-2021-15-1-176-184.
Introduction
The Federal Penitentiary Service performs a set of diverse functions, the list of which is not reduced to the execution of criminal sentences. Thus, the competence and sphere of responsibility of the probation inspectorates includes control during the pre-penal period over suspects and accused, in respect of whom the court has chosen measures of restraint in the form of bail, prohibition on certain actions and house arrest. The need for these measures and, in this regard, the introduction of novelties into
the RF Criminal Procedure Code was caused by the negative practice of an excessively wide and, in a number of cases, unjustified use of detention, which ran counter to the existing paradigm of criminal policy humanization.
Problem statement and results
House arrest (Article 107 of the RF Criminal Procedure Code), among the measures of criminal procedural coercion, ranks second in terms of severity after detention. A significant restriction of the freedom of the suspect or the accused predetermined the judicial proce-
dure for its selection. Currently, the legislator clearly defines the essence of this preventive measure, which consists in isolation from society without placing a person in specialized institutions intended for preliminary detention. The place of detention of a person can be either their place of residence, or, if necessary, a medical institution. This measure can be applied in isolation, as well as in conjunction with the measure provided for in Article 105.1 of the RF Criminal Procedure Code, with the establishment of one or several prohibitions, which will be discussed in more detail below. Within the framework of the article, we will not consider in detail the procedure for applying this measure, we will dwell only on some of the problems that arise in the course of control exercised by probation inspectorates over suspects and the accused.
So, despite the fact that the performance of control functions in the application of house arrest in a form corresponding to the current legal structure, in general, does not cause serious difficulties for inspectorate staff, some issues require clarification. So, in the case of hospitalization of a suspect (accused), subjected to house arrest, the employees of the probation inspectorate must notify the preliminary investigation authorities about this within 24 hours. Order of the Ministry of Justice of Russia no. 189, Order of the Ministry of Internal Affairs of Russia no. 603, Order of the Investigative Committee of Russia no. 87, Order of the FSB of Russia Nno. 371 of August 31, 2020 "On approval of the Procedure for monitoring the location of suspects or the accused at the place of execution of a preventive measure in the form of house arrest and compliance with the prohibitions imposed by the court on the suspects or accused, in respect of whom the prohibition on certain actions, house arrest or bail was chosen as a preventive measure" (hereinafter referred to as the interdepartmental order) does not answer the question of whether in such cases the control authority needs to file a petition with the court to change the place of execution of a restrictive measure. It seems that it is required to answer it in the affirmative, since this circumstance is significant precisely in terms of the implementation of control measures and the determination of the subjects involved in this. However, in order to realize this, it is necessary to consolidate this obligation of the probation inspectorates by law in Article 107 of the RF Criminal Procedure Code and the specified order. In addition, a rule should be established
normatively on the mandatory notification of the administration of a medical organization about the nature of the act in which the hospitalized person is suspected (accused) and on which specific territory (building, department or ward) the restriction of his movement will apply.
The next question that requires the legislator's reaction, as well as the adoption of organizational measures, is the legality of the courts establishing the possibility of daily walks in decisions on the application of house arrest. It is noteworthy that both the courts and the employees of probation inspectorates perceive this fact as a normal phenomenon, based on considerations of a reasonable ratio of house arrest and detention. In the latter case, as is known, the persons under investigation are given a limited time for walks in isolated courtyards. There is no such option for house arrest. In this regard, inspectors naturally have questions about how to ensure control during walks, because during this period the main feature of house arrest will be violated - isolation from society. According to E.V. Larkina, this problem can be solved by delivering suspects (accused) to specially equipped places (territories) for walking, at the same time the researcher draws attention to the lack of funding for such events [14, p. 132]. In addition, if you recognize the right of persons under house arrest to take walks, the boundaries of house arrest and a similar prohibition provided for in Paragraph 1 of Part 6 of Article 105.1 of the RF Criminal Procedure Code, are blurred.
Let us give an example when, in our opinion, the court ignored not only the provisions of the law on the content of house arrest and its intended purpose, but also did not take into account the nature of the crime and the personality of the accused. Thus, the Pskov Regional Court, having considered the appeal of the defendant Ch.'s lawyer regarding the replacement of house arrest for her client with a ban on certain actions, refused to satisfy it. At that, the time for daily walks was extended from 8.00 to 11.00 in the daytime and from 19.00 to 22.00 in the evening. According to the investigation, it is known and reflected in the court decision that Ch. acted as part of an organized group, carried out illegal banking activities involving gaining income on an especially large scale, and also involved numerous commercial organizations in criminal activities. The court itself, which rendered such a controversial decision, found that the accused can influence witnesses (a number of them gave testimony under pseudonyms)
and has the ability to hide from the investigation [4]. In this situation, the position of the court is explained by the fact that walks were required by the convicted person for medical reasons, but then it would be advisable to choose the prohibition on certain actions with a restriction on the time of leaving the dwelling.
Probation inspectorates are obliged to implement such court decisions by virtue of Item 1 of Article 7 of the Regulation on the Federal Penitentiary Service, approved by Decree of the President of the Russian Federation no. 1314 of October 13, 2004, and to ensure "accurate and unconditional execution of sentences, decisions and rulings of courts in relation to convicts, persons in custody, and persons to whom a restrictive measure in the form of house arrest was applied". The only possible recommendation in such situations is the proposal to rely on technical means of control, and not only those that are adopted by the Federal Penitentiary Service of Russia, but also city video surveillance systems.
Control over persons subjected to a measure of restraint in the form of a bail is carried out by the probation inspectorate while simultaneously applying bans on certain actions to the suspect or the accused, which is regulated by an interdepartmental order. In fact, the entire behavior of the person under investigation falls into the zone of control functions of the inspection, with the exception of the actual deposit of the subject of bail.
Bail is not a new measure of criminal procedural coercion for domestic legislation, as well as a direct borrowing from foreign models of legal proceedings. Bail has been known to Russian law since 1864 [25, p. 54-68] and, unlike a number of progressive institutions introduced by the judicial reform that took place, it has not lost its relevance during the formation of Soviet power. Although it should be noted that later, up to the adoption of the current RF Criminal Procedure Code, this measure was received with sharp criticism as a bourgeois vestige, generating inequality in terms of the measures of restraint applied to suspects and accused with different levels of material support. The rethinking of the practical and social significance of bail as an alternative to detention was associated with a unified course toward the humaniza-tion of criminal and criminal procedure policy. The impetus for this was the closer attention in the domestic doctrine and law enforcement practice to the sources of international law and the decisions of the European Court of Human
Rights. In particular, Article 9 of the International Covenant on Civil and Political Rights and Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms enshrine the right of everyone to substitute bail for more stringent restrictive measures related to the restriction of freedom, which is reflected in the preamble of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2013 no. 41 "On suppression in the form of detention, house arrest and bail". In the ruling of the European Court of Human Rights of January 10, 2012 on applications no. 42525/07 and no. 60800/08 "Ananyev and others v. the Russian Federation" [17] a special emphasis was placed at structural problems of Russian pre-trial detention institutions associated with colossal overcrowding of cells and violation of sanitary standards for keeping prisoners.
The legal nature of bail in criminal proceedings is to create a mechanism to ensure that the suspect (accused) fulfills their procedural duties and prevents them from new unlawful acts, as well as counteracts the proceedings under the threat of turning their property into state revenue [1].
According to the updated version of Article 106 of the RF Criminal Procedure Code (Federal Law of April 7, 2010 no. 60-FZ "On amendments to certain legislative acts of the Russian Federation"), only the accused, the suspect, the pledger, the court (if the request for a stricter measure of restraint is refused) are named as initiators of using the bail. As we can see, neither the investigator, nor the interrogator, nor the representatives of the probation inspectorate exercising control over a person subject to a ban on certain actions or house arrest are not included in the circle of authorized subjects. The logic of the legislator is quite obvious here -they have no right to oblige the pledger to post a bail, and sometimes they do not have sufficient information about the financial capabilities of the suspect (accused) and their social circle. At the same time, the subjects authorized to file a petition are forced to independently apply to the court and maintain their position there, which is difficult for some categories of citizens for various reasons. In certain situations, it would be easier for them to act through the representatives of preliminary investigation bodies or probation inspectorates, which exercise control functions. Hence, we believe that the return to the previous edition of Part 2 of Article 106 of the RF Criminal Procedure Code with the inclu-
sion of probation inspectorate officials in the range of persons entitled to appeal to the court on the subject of using the bail, would expand the dispositive principles in choosing the optimal way to appeal to court.
It is advisable to mention the opposite situation, when it is required to initiate a petition before the court to change the preventive measure in the form of bail to a more stringent one in connection with the violation by the suspect (accused) of the procedural duties imposed on them. First of all, this concerns ensuring the rights of the victim, whose opinion is not asked when restrictive measures not related to isolation from society are selected; thus, it gives rise to active discussions among scientists and practitioners [7, p. 71; 12, p. 10; 13, p. 11]. The legislator leaves the choice of a specific measure of influence to the law enforcement officer, even if the likelihood of a threat to the victim, witness, and other participants in criminal proceedings is high (Item 3 of Part 1 of Article 97 of the RF Criminal Procedure Code).
In part, this problem could be solved by the combinatorial use of bail and the prohibition on certain actions, in particular the prohibitions provided for in Items 1-3 of Part 6 of Article 105.1 of the RF Criminal Procedure Code, the responsibility for monitoring the implementation of which vests with probation inspectorates. We should note that, according to Part 8.1 of Article 106 of the RF Criminal Procedure Code, bail can be combined with any prohibitions provided for in Item 6 of Article 105.1 of the RF Criminal Procedure Code. In this regard, in law enforcement practice, there are errors associated with the timing of their application. The RF Criminal Procedure Code in this regard gives quite specific instructions. So, only with regard to the prohibition to go outside the premises of the dwelling at certain periods of time (Item 1 of Part 6 of Article 105.1 of the RF Criminal Procedure Code), the duration of the prohibition is calculated separately (Part 10 of Article 105.1 of the RF Criminal Procedure Code), and the terms of other prohibitions, provided for in Items 2-6 of Part 6 of Article 105.1 of the RF Criminal Procedure Code completely coincide with the period of duration of the bail.
According to the system-wide analysis of provisions of the RF Criminal Procedure Code and the interdepartmental order, clarification of the circumstances related to the observance of these prohibitions is the prerogative of the inquiry officer, investigator, prosecutor, court, and representatives of probation inspectorates,
since their functions includes ensuring the safety of participants in criminal proceedings. At the same time, only the persons who are in charge of the criminal proceedings have the right to apply to the court with a petition to change the restrictive measure. Representatives of probation inspectorates do not have this authority. By virtue of the provisions of the aforementioned order, they are obliged to report any violations of the prohibitions by the persons under supervision to the investigator or inquiry officer, who, in turn, must consider the issue of filing an appropriate motion with the court. This procedure seems to be justified, since it is the person conducting the investigation who is responsible for its effectiveness. At the same time, representatives of the probation inspectorate have the maximum amount of information about the behavior of the person under investigation and about other circumstances included in the local subject of evidence when changing the restrictive measure. Hence, it seems appropriate to establish the obligation of representatives of the probation inspectorate to participate in court sessions when considering the replacement of restrictive measures, within the framework of which this body exercises control powers. It is proposed to define the corresponding norm in Article 110 of the RF Criminal Procedure Code by adding a new Part 4.1.
Speaking about restrictive measures, in the execution of which the probation inspectorate is directly involved, we cannot but consider in more detail the prohibition on certain actions, which has relatively recently been introduced in the domestic criminal procedural legislation. Its introduction in the list of coercive measures by Federal Law 72-FZ of April 18, 2018 in the RF Criminal Procedure Code inevitably caused changes in the practice of applying bail and house arrest. The latter has also undergone a radical revision of the legislative structure. The presence of alternative restrictive measures in the arsenal of the law enforcement officer in fact showed their insufficient effectiveness and relevance, which caused the emergence of the eighth restrictive measure in the RF Criminal Procedure Code. We note that its content is not something completely new for the domestic procedural legislation, but is the result of improvements of existing restrictive mechanisms. In this regard, there is a widespread opinion in the scientific community, which seems to us fair and justified, that the prohibition on certain actions as a preventive measure is derived from house arrest, the content of
which, after updating the norms governing it, is reduced to complete isolation of the suspect (accused) from society [10, p. 126; 11, p. 117; 16, p. 49-50]. At the same time, we note that the "new" restrictive measure was not formed as a result of the mechanical division of the legal material of Article 107 of the RF Criminal Procedure Code into two independent articles and, accordingly, measures, but proceeded from the analysis of the needs of practice and foreign experience in the application of similar coercive measures. Moreover, the Russian criminal procedural law previously contained no restrictive measures that could fulfill both an independent role and be applied subsidiary to other measures, enhancing their suppres-sive and preventive potential [15, p. 113]. From here we got a fundamentally new mechanism for individualizing the measures of influence on a suspect or accused.
In world legislation and legal practice, such measures have existed for a long time and have been successfully applied in various categories of cases, but more often in cases of domestic violence, harassment, and violation of public order. For example, in the United States, UK, Canada, Australia, Jamaica, Scotland, etc., restrictive measures and prohibitions are applied under a court decision, which can be stated in the form of a court order, order for protection, restraining order or protective order, non-molestation order, etc. [26; 28; 30; 32-34]. Unlike the domestic model of a restrictive measure in the form of a prohibition on certain actions, foreign counterparts, as a rule, are not limited by the list of prohibitions. More often, only the type of court decision is determined by the time of validity (temporarily or permanently). In the United States, for example, due to the doubletrack system of legislation, each state has the right to determine its own system of prohibitions. Thus, in the state of New York, one can apply to three different courts for obtaining a protection order: Family Court, Criminal Court, Supreme Court, and for the first of them it is important to have a formal family relationship, for the second - the existence of a criminal case against the abuser or persecutor, for the third - the current divorce proceedings are relevant. At the same time, comparing the effectiveness of various measures of influence on the offender, the majority of representatives of foreign science are in favor of psychological measures (imposing prohibitions under the threat of using more serious restrictions) in relation to, for example, short-term arrest [29; 31, p. 695], which
is a natural result of the orientation of the criminal justice system in Europe and America to the so-called "recovery paradigm" [27].
In theoretical and practical aspects, we attach importance to the place of prohibition on certain actions in the system of restrictive measures, which, as a general rule, are located in the text of the RF Criminal Procedure Code in increasing order of their severity. Accordingly, house arrest and detention should be considered stricter, bail and all other restrictive measures should be considered less stringent. However, this system only works under certain conditions. For example, if we compare the bail associated with inconveniences and restrictions in the use and disposal of property and the prohibition on the use of the Internet, then it is hardly possible to unequivocally judge which of the measures is stricter. In another case, if the prohibition against leaving the dwelling is combined with a bail (Part 3 of Article 105.1, Part 1.1 of Article 97 of the RF Criminal Procedure Code) under proper control by the probation inspectorate for the person under investigation, then such a measure of influence will be almost stricter than house arrest. Based on the foregoing, we can conclude that this measure is quite severe and variable.
Two and a half years have passed since Article 105.1 of the RF Criminal Procedure Code, which regulates the application of the prohibition on certain actions, has entered into force. This is a sufficient time to judge the effectiveness and relevance of this measure through the prism of not only judicial and investigative practice, but also the practice of probation inspectorates of the territorial bodies of the Federal Penitentiary Service of Russia that ensure control over compliance with this measure.
General positive effects from the introduction of a ban on certain actions are seen, first, in reducing the costs of keeping suspects (accused) in custody, as well as payments for rehabilitation to persons illegally or unreasonably subjected to preliminary detention. Second, we agree with N.A. Simagina who notes that the application of the measure under consideration allows avoiding stereotyped decisions in the selection of restrictive measures, which contributes to an increase in their effectiveness [23]. Third, unlike detention and house arrest, the prohibition on certain actions is a universal preventive measure in relation to categories of crimes, gender and age of suspects and the accused [24]. Fourth, it can become a decision worthy of Solomon, when a serious restrictive
measure is needed, but detention or house arrest has lost its relevance in relation to a given suspect (accused). Attention is drawn to the latter circumstance in Item 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2013 no. 41 "On the practice of the courts' application of legislation on restrictive measures in the form of detention, house arrest and bail". The results of the analysis of a number of courts' appellate rulings on the cancellation of the previously chosen restrictive measure in the form of detention show that both the interrogators and the investigators, when they appeal to the court, and the courts of first instance as well, in their decisions are often guided by considerations of expediency, without taking into account individual characteristics of the personality of the suspect (accused), their marital status, the degree of social danger of the offence and the suspect (accused).
We agree with S.V. Burmagin who points out that the position of the persons conducting the preliminary investigation often depends on the convenience of working with the suspect (accused) [8]. Thus, the decision of the Kirovsky District Court of Saratov granted the prosecution's petition to detain the accused only on the basis of information about the qualification of the act and the expected duration of the investigation; in connection with this, according to the appeal decision of the Saratov Regional Court, the chosen measure was changed to the prohibition on certain actions [2].
Summarizing the practice of applying a preventive measure in the form of prohibition on certain actions in various regions of Russia in 2018-2020 (we studied about a hundred court decisions), we have made the following conclusions:
- this restrictive measure is most in demand in relation to economic crimes;
- investigators and interrogators relatively rarely initiate the application of a restriction on certain actions, this measure is chosen much more often by the court on its own initiative in the event of refusal to apply more severe restrictive measures or extension of their terms;
- from three to five prohibitions are often (in about 70% of cases) imposed at the same time; this causes difficulties in the implementation of supervision on the part of probation inspectorates;
- in 7% of court decisions there were cases of imposing prohibitions that were not provided for in Part 6 of Article 105.1 of the RF Crimi-
nal Procedure Code; there were cases when employees of units of the Federal Penitentiary Service of Russia were imposed the functions they do not usually fulfill in their daily work routine (for example, control over the implementation of the prohibition against driving a vehicle);
- courts very rarely impose a prohibition on being in certain places, as well as a prohibition on approaching to certain objects closer than a specified distance, and a prohibition on attending certain events and participating in them;
- in a number of cases, court decisions on the content of prohibitions are not specific enough, which makes it difficult or impossible for a probation inspectorate to control their implementation (for example, when limiting the circle of contacts of suspects (accused), generalized formulations such as "... and other employees of the enterprise ... ", "... and so on" are used).
So, for example, by the Resolution of the Supreme Court of the Republic of Dagestan dated February 12, 2020, the restrictive measure in the form of detention was changed for accused S. to the prohibition on certain actions from February 12, 2020 for a period of three months zero days, that is, until May 12, 2020 with the imposition of the following prohibitions: "... communication with all witnesses, the representative of the victim participating in this criminal case, and with the accused in the case and their defenders ..." [3]. The fact that the court decision has no indication of specific persons with whom communication is prohibited or limited makes it impossible for the probation inspectorate to execute the relevant prohibitions. Here we note that the legislative structure of Part 7 of Article 105.1 of the RF Criminal Procedure Code contains the following wording: "specific conditions for the implementation of this restrictive measure are stated ... data on persons with whom it is forbidden to communicate ...", that is, there is no need to talk about the presence of a legal gap here. At the same time, in order to avoid a free interpretation of this wording, we find it advisable to supplement it with more details as follows: "data on persons with whom it is forbidden to communicate, and provide information that helps to identify them and their procedural status".
In another example, the court did not take into account the restrictions on the competence of the probation inspectorate in the execution of the prohibitions established in Part 11 of Article 105.1 of the RF Criminal Procedure
Code, and imposed the obligation to monitor the implementation of the prohibition on driving a car and other vehicles in relation to the suspect in a crime under Article 264 of the RF Criminal Code on the Deputy Head of Kotlassky Intermunicipal Branch of the Federal State Institution "Probation Inspectorate of the Federal Penitentiary Service of Russia in the Arkhangelsk Oblast" [19]. It is noteworthy that the specified procedural norm does not name the subject who is authorized to exercise control in this case (it seems that this should be the state traffic safety inspection), but this function is directly excluded from the competence of the Federal Penitentiary Service of Russia. In this case, it should be stated that there is a gap in legal regulation along with an obvious miscarriage of justice. At the same time, in accordance with the procedural regulations, as long as the court decision is not appealed by anyone and another legal decision comes into force, the previous one is considered true and binding on the employees of probation inspectorates. Another question is how the court decision can be executed if the units of the Federal Penitentiary Service of Russia lack objective opportunities and the necessary administrative functions in this regard.
The next example concerns the incorrect combined application of the prohibitions provided for in Part 6 of Article 105.1 of the RF Criminal Procedure Code, and other restrictive measures. The Magadan Oblast Court imposed on the accused a restrictive measure in the form of house arrest with the simultaneous imposition of a number of prohibitions, including leaving the place of residence without written permission from the person investigating the criminal case and the supervisory authority, with the exception of one hour of walking from 11 to 12 hours daily at the area of residence [21]. Here, first, it seems superfluous to indicate this prohibition, since it is leveled by more stringent conditions for the execution of house arrest and according to Part 7 of Article 107 of the RF Criminal Procedure Code its application is not provided. In the special literature there are unambiguous judgments about their mutually exclusive nature [6; 9, p. 125]. Second, the court in its decision confused the content of the chosen restrictive measure with the content of the recognizance not to leave and behave properly. We also noticed similar errors in the decisions of the Neryungri Town Court of the Sakha (Yakutia) Republic [20] and the Gorno-Altaysk City Court [18].
Such court decisions significantly complicate the work of regulatory bodies, in particular, probation inspectorates, which sometimes turn out to be hostages of the situation. They are obliged to comply with the court decision, but the actual implementation becomes impossible due to objective reasons. Hence, it is necessary to work out proposals for overcoming such situations. First of all, it seems necessary to provide clarifications from the Plenum of the Supreme Court of the Russian Federation on the issues reflected in this article. However, the addressees of these clarifications are mainly the courts. For the units of the Federal Penitentiary Service of Russia involved in the execution of restrictive measures in the form of bail, prohibition on certain actions, house arrest, the following recommendations seem possible.
If in the court decisions received for execution by the probation inspectorate contain obvious inconsistencies with the current procedural legislation, inspectorate employees have the following options for resolving this situation.
First, they have the right to apply to the prosecutor's office with an indication of the circumstances discovered, namely the violation of the law when court judgments are delivered. However, in this case, most likely, the applicant will be redirected to the appropriate court.
Second, an employee can apply to the court with an appeal in accordance with Article 389.1 of the RF Criminal Procedure Code, since in its first part, the right to appeal a court decision is granted to any "persons in the part in which the appealed court decision affects their rights and legitimate interests". We note that there are precedents when probation inspectorates on their own behalf appealed judicial decisions in court [5].
Third, the probation inspectorate can express its legal position regarding the impossibility of enforcing a court decision by sending the head of the inspectorate a submission to the court by analogy with the mechanism for replacing a preventive measure established by an interdepartmental order in case of its violation. However, at the same time, the court will not be able to reverse its own court decision and, in the end, it will be necessary to resort to the second method of resolving the situation.
Fourth, in the legal literature it is proposed to act through the institution of the court's resolution of issues related to the execution of the sentence, and by analogy, another court decision (Item 15 of Article 397 of the RF Criminal Procedure Code) when an employee of the
probation inspectorate files a submission (Article 399 of the RF Criminal Procedure Code). Thus, the results of a survey of inspectors conducted by A.A. Rukavishnikov show that in most cases (97%), in order to eliminate doubts and ambiguities in the execution of judicial acts, it was representatives of this body who applied to the court, in 2% - the convict's lawyers and in 1% of cases - other courts. Such appeals related to clarification of the time of day when the convict was prohibited from leaving home, elimination of errors made in the court decision when writing personal data of persons under supervision, clerical errors and arithmetic errors, if they are obvious and their correction cannot raise doubts [22]. At the same time, it seems that such a mechanism is possible if the requirement of legality is not violated and it is necessary to correct only a technical error that does not affect the essence of the decision itself, for example, when it is necessary to clarify the address, initials of the person's name, etc.
Conclusions
Thus, control over suspects accused by the probation inspectorate when applying measures of procedural coercion in the form of bail, prohibition on certain actions, and house arrest is an independent area of activity that requires increased attention not only to the controlled persons themselves, but also to court decisions that show significant variability in the list of established restrictions and prohibitions. The legal regulation of the procedure for exercising control should be considered quite successful. At the same time, a number of points require clarification, and sometimes additional detailing of procedural and other legal norms. Some issues arising in the activities of inspectorates in connection with the execution of court decisions submitted for execution can be resolved by referring to the already existing procedural mechanisms and institutions in order to ensure legality, justification, fairness, as well as the effectiveness of coercive measures in the form of bail, prohibition on certain actions, and house arrest.
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INFORMATION ABOUT THE AUTHOR
LYUDMILA A. KOLPAKOVA - Candidate of Sciences (Law), Associate Professor, deputy head of the Department of Criminal Proceedings, Criminalistics and Intelligence-Gathering Activity, Faculty of Law, Vologda Institute of Law and Economics of FSIN Russia, Vologda, Russian Federation, ORCID: https://orcid.org/0000-0002-9937-8462, e-mail: [email protected]
Received February 2, 2021
