House arrest was developed as an alternative to detention in custody during the investigation and trial. Updated Code of Criminal Procedure in Art. 107 made adjustments to the list of preventive measures. For example, the guarantee of public organizations that has almost never been applied in practice is excluded. There was another measure to limit freedom of restraint in legal proceedings - house arrest. Before the amendment of the Code of Criminal Procedure of the Russian Federation, the most common measures were: detention and a ban on crossing state borders. The new measure of restriction of liberty changed the practice of doing business in court, namely, reduced the number of citizens detained and placed in pre-trial detention facilities.
Court ruling
During the meeting, the judge may consider the petition for the application of the measure of restriction of freedom in the form of imprisonment at home and make one of the following decisions in accordance with Art. 107 Code of Criminal Procedure:
- Choose a preventive measure in the form of imprisonment at home.
- Refuse the application.
The decision on house arrest indicates the executive authority, which will monitor the strict observance of the court decision. The court document is sent to the requesting party, the prosecutor, the district police officer at the place of detention for house arrest, the representative of the accused party and is subject to strict execution.
The document spells out the conditions of the judgment:
- Location.
- Period of arrest.
- The number of hours that a person is allowed to be outside the place of actual location (residence).
- Court restrictions The court order prescribes a detailed list of prohibitions against which an arrested citizen is subject.
- Permitted places to visit, methods of communication with a limited circle of persons.
In case of refusal to satisfy the petition, the judge has the right, subject to legal grounds, to apply another measure of restraint. For example, a ban on specific actions or a pledge in cash.
For what crimes is it possible to use house arrest?
The second part of Art. 107 of the Code of Criminal Procedure of the Russian Federation with comments, unfortunately, does not have a clear answer to the question of what criminal acts can be chosen as a measure of restriction of freedom in the form of imprisonment at home. The evidence for applying the measure in the form of custody at home is similar to the conditions for choosing the measure in the form of restriction of freedom. They are spelled out in Art. 108 Code of Criminal Procedure. Similar measures can be applied to crimes for which a penalty of restriction of liberty for a period of more than two years has been established and if it is impossible to choose another measure.
It is worth emphasizing once again that holding in custody at home is considered, as already noted above, to be a milder measure of restraint than detention.
Detention at home is possible:
- for the commission of all criminal acts, except for especially grave ones, especially for crimes of a non-violent nature;
- in relation to those criminal persons who have their own house or housing, where it is possible to be under the constant supervision of the executive bodies;
- in relation to seriously ill people, elderly citizens, family members and positive individuals who have committed illegal acts;
- in relation to unemployed citizens, since this cannot entail the loss of a permanent place of business for them.
Conditions for finding a criminal at home
Detention at home among preventive measures, if they are analyzed by the degree of restriction of the rights of individuals, is as follows after detention. The introduced measure significantly limits the rights of the accused citizen. It is worth noting that we are talking not only about the right to move in space, but also its material rights and interests, in particular the right to professional activity. When used as a measure to limit detention at home, the law should consider:
- age of the defendant;
- physical and mental health;
- marital status of the arrested person (presence of minor children, dependents);
- other circumstances.
Among other reasons, the occupation of the suspected or accused citizen must be taken into account. For example, keeping an entrepreneur under arrest at home will limit his financial rights more significantly than his subscription about not crossing the country's borders. Representatives of the investigating authorities, the prosecutor and the judge, carefully study all the facts of the case, the identity of the arrested person, the type of his professional activity before choosing a particular preventive measure for the accused citizen.
The essence of detention under house arrest is the prohibitions prescribed in order to ensure the proper conduct of the defendant:
- leave the territory (building, land, apartment);
- communicate with some people.
Detention at home is a coercive measure. It consists in:
- Mandatory stay of the suspect in the territory with limited movement.
- Isolation from society.
- Partial or complete restriction in the performance of labor duties.
- Prohibition of travel abroad.
Detention at home physically restricts a person’s right to liberty and security. For this reason, the described measure is selected for a specific period.
A citizen who is at home in custody is prohibited from:
- communicate with other people specified in the court order;
- use Russian post;
- use any communication (mobile and electronic);
- use Internet.
The court, taking into account the personality characteristics of the suspect or the accused and the factual circumstances of the criminal act, may prohibit and / or restrict him:
- going beyond the actual place of residence;
- communication with a certain circle of people;
- sending mail and receiving it;
- use of email.
Depending on the gravity of the crime in question and the actual circumstances of the case, the defendant may be subjected by the court to all the prohibitions and restrictions described. The prohibitions can be changed by the court upon the request of the supporters of the accused party, his lawyer (public defender), a representative by proxy, an employee of the investigating authorities in the proceedings of this case.
The suspected or accused citizen is delivered to the investigating authorities and the court exclusively on a vehicle of the controlling body under escort, since the person is not allowed to move independently. Meetings of a suspect or accused being under arrest in conditions of absolute isolation from civil society, with a lawyer, legal representative take place in the place of residence, that is, the implementation of this measure.
Impossible ban
An arrested citizen cannot be limited in the right:
- the use of fixed or mobile communications to call an ambulance, police, rescue services (for example, gas service) in the event of an unforeseen situation or danger to health and life;
- communication with the regulatory authority.
The suspect or accused must report all calls to the supervisory authority. The court decision on choosing a measure of restraint of liberty in the form of imprisonment under house arrest prescribes methods of communication with investigators and the supervisory authority.
The grounds and procedure for applying the punishment in the form of house arrest
According to the first part of Article 107 of the Criminal Code of the Russian Federation, arrest at home:
- applied by court decision in respect of the accused party to the case if it is impossible to apply another measure of restriction,
- consists in finding the accused or suspected of isolation from civil society in the housing in which he is located, with the imposition of his restrictions for a certain period and (or) prohibitions and control of their implementation.
Control methods
According to Art. 107 of the CPC in a court decision on the application of a measure of restraint of liberty in the form of detention under house arrest, the executive body must be indicated, which is responsible for the rigorous supervision of compliance with the prohibitions specified in the decision of the court. Obviously, without such control there is no sense in applying this restriction measure. Without proper supervision, the accused person will be on his own and may not fulfill the restrictions imposed on him. Neither the judge, nor the representative of the investigating authorities, nor the inquirer can exercise the necessary control of the arrested person. Such oversight can be assigned to the police. Supervision of compliance by the arrested with the court-established restrictions and the requirements of the law on detention in custody at home can be compared with the administrative supervision by the internal affairs bodies of a particularly dangerous category of people for society. For example, control over previously convicted repeat offenders recently released from prison.
Supervisory measures for a citizen detained at home are regulated by the laws of the state. Control over a citizen’s presence at the place of execution of the restriction measure in the form of house arrest and compliance with the restrictions fixed by the court is exercised by the federal executive body that exercises control and supervision over the execution of penalties in the criminal sphere in relation to convicted citizens of the country.
In order to exercise control, audiovisual, electronic (home arrest bracelet) and other technical control means can be used. Their list and application procedure are determined by the legislation of the country.
The following personal controls may be applied to the arrested person:
- Electronic bracelet.
- Mobile and stationary monitoring devices.
- A device for wearing on the body for the purpose of controlling movement.
These hardware are protected against hacking. All of them provide an opportunity, using a satellite-based navigation system, to track the movement of an arrested citizen in a limited area, as well as his exit or attempt to go beyond it. After the detention at home, as a measure of restraint, is lifted, technical controls, in particular electronic bracelets, are disabled by the controlling organizations.
Hospitalization
If a person under house arrest requires urgent or planned hospitalization, he is taken to the hospital, but measures to limit his freedom continue to be valid until another court decision is made. Given the state of health of the arrested citizen, the territory of his detention under house arrest in criminal proceedings from the established place of stay can be replaced by a medical institution. The place of execution of the restriction measure in the form of detention at home will be considered the territory of the medical institution.
If, on medical grounds, the arrested citizen was hospitalized and taken from the place of actual residence to the healthcare institution, then until the resolution of the change or cancellation of the restriction measures against him, the restrictions established by the court continue to apply in court.
Doing business
Meetings of an arrested citizen under house arrest with a lawyer, defense attorney, and also with a notary public in order to write and sign a power of attorney of the arrested person to represent his interests in the field of individual entrepreneurship are held in the place of residence.
House arrest periods
Detention at home lasts for the period specified in the decision. Its period is counted from the moment the court decision on the election of this measure of restraint in relation to an arrested citizen who committed a criminal act. During the period of detention at home, the period of detention is counted. The total period of house arrest and detention in the isolation ward should not exceed the maximum period of detention prescribed in Article 109 of the Code of Criminal Procedure of the Russian Federation.
Failure to comply with conditions of house arrest
An arrested person in a confined space must fulfill the following conditions:
- comply with this measure of restriction;
- Use technical controls
- maintain the integrity of these technical means;
- maintain the functioning of technical controls.
If the arrested person violates the above conditions, the court has the right, at the request of the investigator or inquiry officer, to change this measure of restriction to a more severe punishment (imprisonment in a pre-trial detention center). If the non-fulfillment of the conditions for the use of the restriction measure in the form of detention at home was allowed after the appointment of a court hearing, this restriction measure may be changed upon the recommendation of the control body.
If you carefully study the articles of the Criminal Procedure Code of the Russian Federation on preventive measures, it can be noted that for non-fulfillment of individual obligations in certain cases, liability may be applied in the form of a fine or a penalty in another form. For example, a pecuniary punishment in the amount of up to one hundred minimum wages is provided for individuals, guarantors for improper fulfillment of obligations on their own surety, as well as for citizens who are placed under temporary guardianship of a minor arrested child. The legislation also provides for the possibility of returning a pledge of money to the country's treasury in case of improper fulfillment of monetary obligations undertaken by an arrested citizen. In other words, for non-compliance with the restrictions in the form of detention, when there is no reason to choose a more severe punishment, it would be possible to envisage the use of material or monetary fines. However, the legislation of our country has not yet provided for such a provision for detention under house arrest.
Legislative development
According to many lawyers, in Art. 107 of the Code of Criminal Procedure of the Russian Federation, it is high time to foresee the possibility of withholding a monetary penalty for failure to comply with the restrictions enshrined in the court. This will facilitate the successful application of custody at home. Its use will cease to be a rare occurrence. Use of the restriction measure in the form of detention under house arrest under Art. 107 of the CPC of the Russian Federation has a number of difficulties today in our country. We list the main of the problems:
- Complicated lawsuit of election measures.
- Poorly regulated oversight of the execution of a court decision.
Domestic practice of home arrest
Here are examples of those who were under house arrest in our country:
- The head of AFK Sistema Yevtushenkov V. and businessman Hayrapetyan L. were in a pre-trial detention center for two and a half months, and then the capital’s court changed the measure of restraint for them under house arrest. They were both charged with financial fraud.
- Under house arrest was Evgenia Vasilieva, a former employee of the Ministry of Defense. In the first year, Eugenia was allowed to leave the apartment every day for walks in the capital. The ban on communication with her was established only with other participants in the criminal case and representatives of the media.
- For almost a year, the director of Uralkali, V. Baumgertner, was under house arrest, but then the court replaced him with a preventive measure of bail of fifteen million rubles.
Foreign practice
The U.S. home arrest system has been around for a very long time. The home of the violator of the law is equipped with special devices that enable twenty-four hours a day to control the arrested citizen. The prisoner is regularly checked for alcohol and drugs. Usually arrested Americans have to pay for the opportunity to be under house arrest. Sometimes citizens in America are allowed to work. To do this, you need to coordinate your time of leaving the premises and returning to it after work. Supervision is carried out by correctional centers.
In a conservative UK, an arrested citizen can only be held under house arrest for the last two months of detention.
In Sweden and the Netherlands, who value the rights of all their citizens, in order to place a citizen under house arrest, people who will live with him under the same roof must give permission.
In France, the practice of house arrest as a preventive measure has been successfully used for about ten years.
In Switzerland, the famous film director Roman Polanski learns all the pros and cons of home arrest. He is now in his comfortable estate with an electronic bracelet on his feet.
Summary
The ban on traveling abroad and detention are the two most common types of preventive measures in our country. The second of the above measures is the most severe form of punishment prescribed by law. As a different option than taking into custody, the election of a preventive measure in the form of detention at home has been applied for several years, every year this measure of punishment is becoming more common in our country.