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1.1. Essence, the maintenance and the form of punishment under criminal law in the form of arrest

The criminal code Russian Федерации4, accepted in 1996, unlike earlier operating UK RSFSR 1960, has entered a new kind criminal nakayozanija - arrest.

In Russian the term "arrest" means "taking into custody" or «prohibition to dispose of the property, imposed by courts of justice» 5. V.I.Dal defines "arrest" as «detention of the person under guards, a capture under sentry, the conclusion» 6. However the given definitions of arrest cannot ispolyozovatsja at understanding of punishment under criminal law in the form of arrest. There is a question what it is necessary to understand as arrest as a punishment under criminal law kind? N.A.Struchkov, considering punishment, allocated its essence and содержание7. In our opinion, comprehensive investigation of punishment under criminal law in the form of arrest should be spent not only by consideration of its essence and the maintenance, but also by means of the analysis of the form of the given punishment under criminal law.

Let's consider essence, the maintenance and the form of punishment under criminal law in the form of arrest.

Analyzing essence of punishment under criminal law in the form of arrest, follows otmeyotit, that in the legal literature to understanding of essence criminal nakazayonija in the form of arrest the steadfast attention is taken away.

4 Further UK the Russian Federation

5 Ozhegov S. I, Shvedova N. Ju. Russian Explanatory dictionary: 80 000 words and phraseological expressions / the Russian Academy of Sciences. Institute of Russian of V.V. Vinogradova. 4 izd., added. - M: Azbukovnik, 1999.-S.28.

'S 6 Distance of live great Russian language: sovremenyo noe a writing: In 4 t. Т.1. А-3. - M: ACT, Astrel, 2001. - С.35.

'S 7 Pods and its realisation in crime control. - Saratov: Publishing house Saratov un y, 1978. - С.63.

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According to V.V. JAkovleva essence of arrest, as well as any another nayokazanija, is кара8.

However with the specified understanding of essence of arrest partly it is necessary not to a soya to be said. f*

First, it is necessary to notice, that the statement that sushchno - ' $ stju punishments the penalty is demands some specification.

Fairly wrote I.S.Noj that «the penalty is inherent not only to punishment under criminal law, but also a number of other measures of legal compulsion» 9 and consequently it is necessary to speak about a criminal penalty.

V.A.Nikonov suggested to concretise essence of punishment, discriminating «essence of punishment in general"and"essence of punishment under criminal law"."As the term"punishment"is known not only to criminal law, - the author marks, - and ♦> is used more widely so far as the penalty can be defined as essence

The first order, essence of punishment in general (punishments for infringement of any rules, establishments). Reprisal acts as essence of the second poyorjadka, defining punishment under criminal law and being gosudarstyovennoj a penalty »10.

Besides, we will notice also, that in the Code about administrative right infringements of the Russian Federation, accepted the concept administ - § rativnoe punishment which agrees ch on December, 30th, 2001 is used.

1 items 3.1. Is established gosu -

darstvom a measure of responsibility for fulfilment administrative pravonayorushenija also it is applied with a view of the prevention of fulfilment new pravonayorusheny as by the offender, and others лицами11.

Jakovlev V.V. The criminally-legal characteristic of arrest (theoretical aspect): Diss... kand. jurid. Sciences. - ^Sankt-Peterburg, 1999.-S.74.

9 Ache S.I.Sushchnost and punishment under criminal law functions in Soviet gosuyo darstve. - Saratov: Publishing house Saratov un y, 1962. - С.37.

10 Nikonov V. A. Punishment under criminal law and it obshchepredupreditelnoe a cart action on criminality: Studies. The grant. - Tyumen: VSH the Ministry of Internal Affairs of the Russian Federation (Russia), the 1992.-joint venture.

11 Code of the Russian Federation about administrative an offence jah. - M: eksmos, 2002. - С.8.

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Hence to consider essence criminal nakayozanija a criminal penalty more correctly.

Secondly, the understanding of essence of arrest as punishment under criminal law in the form of a penalty is rather generalised and, in our opinion, does not reflect really essence of considered punishment.

The criminal code defines following intrinsic elements ugolovyonogo punishments in the form of arrest.

According to ch. 1 item 54 UK the Russian Federation arrest consists in the maintenance condemned in the conditions of strict isolation from a society and is established for the term from one to six месяцев1. The actual legislator specifies in two cores eleyomenta: 1) strict isolation condemned from a society; 2) short term otbyvayonija punishments (from 1 till 6 months).

Some authors also as well as the legislator specify in two basic intrinsic elements of arrest.

So, A.I.Korobeev notices, that «key in concept of arrest javljajutyosja two sign: strict isolation condemned from a society and brevity of this isolation» 13.

Zdravomyslov B.V. wrote, that «arrest on the essence is kratkoyovremennym imprisonment» 14. ' the Specified position, according to the author, proves to be true, «first, that condemned to the given kind of punishment comes under on a sentence of court of strict isolation from a society, i.e. is located in special establishment where is under constant surveillance, in the conditions of a rigid mode, not having the right to leave this establishment before expiration of sentence. Secondly, the law establishes arrest deadlines — from one -

12 Criminal code of the Russian Federation. - M: the Prospectus, 2004. - С.20.

13 Russian criminal law: the Course of lectures. Т.2. Punishment / Under the editorship of A.I.Korobeeva. - Vladivostok: Publishing house Dalnevost. Un y, 1999. - С.110.

14 Criminal law of the Russian Federation. The general part: the Textbook / Under the editorship of the prof. V.Zdravomyslova. Izd. 2, the reslave and dop. - M: JUrist, 1999. - С.355.

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go month about six months. Hence, isolation from a society is short-term »15.

According to A.E.Zhalinskogo «the specific maintenance of arrest consists in concentrated and povyshenno rigid influence on condemned, carried out, during rather short term».

Separate authors ukazyvajut.na other intrinsic signs of arrest.

. M.Leontev believes, that «criminally-legal essence of arrest sostoyoit that condemned to this punishment is exposed to corrective influence in the conditions of strict isolation from a society taking into account special poyorjadka and conditions of its execution» 17. The author specifies:

First, on feature of corrective influence at arrest - isyopravitelnoe influence on condemned is carried out in the conditions of strict isolation of the condemned;

Secondly, on a special order and conditions of execution criminal nakazayonija in the form of arrest.

Analyzing the specified elements, essence of arrest, the statement of the author that is criminally-legal essence of arrest is represented to us rather disputable. It is necessary to notice, that in the given definition of arrest soderyozhatsja in bolshej degrees criminally-executive characteristics.

A little excellent position from the above-stated authors was stated by R.R.Galiakbarov, specifies in four intrinsic elements of arrest: 1) prinuyoditelnoe the maintenance of the person; 2) the maintenance in intended for this purpose uchreyozhdenijah; 3) the maintenance in the conditions of strict isolation; 4) the maintenance for the term from one about six months. The author notices, that «arrest is compulsory

15 In the same place. - С.355.

16 Criminal law of Russia. The textbook for high schools. In 2 t. Т.1. The General part / Otv. red. And bus hands-whether kol-va A.N.Ignatov, J.A.Krasikov. - M: NORM, 2000. - С.405.

Criminal law course. The general part. Volume 2: the Doctrine about punishment / Under the editorship of N.F.Kuznetsovoj, and. M.Tjazhkovoj. TH.: ZERTSALO, 1999. - С.51.

17 maintenance of the person in the establishments intended for it in the conditions of the strict

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Isolation for the term from one about six months ».

Investigating intrinsic definition of punishment under criminal law in the form of arrest given to R.R.Galiakbarovym, it is necessary to specify on diskussionnost inclusions in it of such element as «the compulsory maintenance of the person». PrinuditelYOnost, in effect, it is characteristic for punishment under criminal law as a whole, sootvetstyovenno in addition to specify in the given element in definition of punishment under criminal law in the form of arrest there is no necessity.

Considering the specified sights at essence of punishment under criminal law in viyode arrest it is necessary to note two basic approaches: 1) the generalised understanding of essence of arrest, i.e. through a penalty (V.V. JAkovlev) and 2) private understanding sushchnoyosti arrest, i.e. through its basic elements pravoogranichenija (. V.Zdravo-myslov, A.I.Korobeev, R.R.Galiakbarov, etc.).

The second approach, in our opinion, is the most preferable. At the same time, the essence of punishment under criminal law should not be opened by simple transfer of its basic elements. In this case follows goyovorit only about set of its essential elements.

In the philosophical dictionary following definition of essence is made. «Sushch-nost — that constitutes a thing essence, set of its essential properties, substantsionalnoe a kernel independently existing real» 19.

Investigating essence of punishment under criminal law in the form of arrest, it is necessary to pay attention also to some other aspect of a question.

According to chl item 43 UK the Russian Federation punishment consists in predusmotyorennyh the present Code deprivation or restriction of the rights and freedom of this person. The legislator in the given definition uses concepts "right" and "svo-body".

Galiakbarov of the Russian Federation. The general part. Abstracts of lectures i.inye materials. - Krasnodar: Kuban gosudaryostvennyj agrarian un y, 1999. - With. 190.

19 Philosophical encyclopaedic dictionary. - M: INFRA TH, 1997. -

С.444.

18 At the same time as it is fairly marked in the legal literature «the specified concepts open only a part of a legal status of the person podver -

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zhennogo to retaliatory influence ».

Concept of a legal status (from an armour. status - the condition, position) lichnoyosti is shined enough in the general theory of law and understood as system priyoznannyh and fixed by the state by legislative action the rights, freedom and duties, and also legitimate interests of the person as subject права21.

Fairly some authors believe, that the category of "right" and "svo-body" on sense and the maintenance can consider equivalent.

Besides, it is impossible to disagree with V.N.Orlovym, that «any punishment under criminal law, it always deprives and limits condemned opyoredelennogo legal behaviour in this or that field of activity. Into sphere of legal behaviour besides rights enter also pravoyovye possibilities which are legitimate interests of the person» 23.

Let's notice also, that in the project of bases of the criminal legislation of USSR and union republics punishment was defined as «the coercive measure applied on behalf of the state on a sentence vessels to the person, recognised viyonovnym in committing a crime, and consisting in provided zayokonom deprivation or restriction of the rights and interests condemned» 24.

Considering the above-stated in the form of arrest it is necessary to understand set of deprivations or restrictions as essence of punishment under criminal law it is defined -

V.N.Kriminopenologichesky's eagles the analysis of a place and functions ugolovyonogo punishments in the form of arrest//Works of faculty of law of Stavropolyosky state university. Release. 7. — Stavropol: Stavropol-servisshkola, 2004. - With. 199.

21 Vitruk N.V. the Legal status of the person in the USSR. - M, 1985. - С.23.

22 Theory of state and law: the Textbook for high schools / Under the editorship of V.M.Ko-relskogo, V.D.Perevalova. 2 izd., amendment and dop. - M: NORM, 2001. - С.540.

V.N.Kontseptualnye's 23 Eagles punishment under criminal law questions//Works of faculty of law of the North Caucasian state technical university: the Collection of proceedings. Release 5. — Stavropol: SevKavGTU, 2004.-S.114. '

24 Sarkisovs E.A.Rol of punishment in the prevention of crimes. — Mn.: Navuka і tz-hn_ka, 1990. - C.I 1-12.

19 nyh the rights and legitimate interests condemned, interfaced with strict kratkoyovremennoj isolation from a society in the establishment intended for it. -

Important value represents understanding of the maintenance of punishment under criminal law in the form of arrest.

The term "maintenance" in philosophy is defined as there are"that"in"as» forms, there is that fills the form and from what it is carried out »25.

The punishment under criminal law maintenance as a whole is opened in Criminal kodekyose the Russian Federation in ч.1 item 43 according to which punishment consists in the deprivation provided by the present Code or restriction of the rights and freedom of this person.

The recognition the legislator the punishment maintenance - restriction or whether-shenie rights and freedom condemned has not formed the basis for the termination of scientific discussions about the punishment maintenance. In the legal literature imeyojutsja two various points of view. According to one of them, the maintenance nakazayonija - a penalty (A.L.Remenson, A.E.Natashev, N.A.Struchkov, E.A.Sarkisov, etc.), according to another — punishment the penalty and education »(form« I.I.Karpets, m. D ІІІ argorodsky, B.S.Nikiforov, Ampere-second. SHljapochnikov, M.A.Efimov, etc.) or «a penalty plus compulsion — not a penalty and belief» (I.S.Noj) 28.

The short philosophical encyclopaedia. - M: Progress-encyclopaedia, 1994.-S.422.

Natashev A. E, correctional labour law N.A.Osnovy's pods of the theory. - M: the Legal literature, 1967. - With. 18; Remenson A.L.Nekotorye questions of the theory of the Soviet correctional labour law//SGiP. - 1964. - № 1. - With. 93.; Sarkisov E.A.Rol of punishment in the prevention preyostupleny. - Minsk: the Science and technics, 1990. - With. 12.

Karpets I.I.Nakazanie. Social, legal and kriminologicheskie problems. - M: the Legal literature, 1973. - With. 65; Nikiforov B.S., SHljaYOpochnikov Ampere-second. Some problems of the further development Soviet ugolovyonogo the rights in the light of the Program of the CPSU II SGiP. - 1962. - №2. - С.62; ІІІ argorodyosky M.D.Nakazanie, its purposes and efficiency. - L: Publishing house Leningrad, unyota, 1973.-with. 47.

28 Ach I.O. Questions of the theory of punishment in the Soviet criminal law. — Saratov: Publishing house Saratov un y, 1962. - S.26-27.

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Now in a criminally-legal science the majority of authors and scientists are inclined to consider, that the punishment maintenance consists in deprivation or restriction of the rights and freedom of the condemned.

According to the professor And. V.Naumov, «punishment is always connected with ograyonicheniem the rights and freedom of the person who have committed a crime, causes (or at least is capable to cause) to it certain moral sufferings and deprives of its certain blessings (freedom, property rights etc.)».

So, N.F.Kuznetsova marks «the punishment maintenance - restriction or the deprivation and freedom condemned».

Proceeding from the above-stated we will consider the maintenance criminal nakazayonija in the form of arrest.

The maintenance is that opens essence, that is its elements.

N.A.Struchkov, considering the punishment under criminal law maintenance, noticed, that «the penalty is particularly expressed in the following.

First, in isolation condemned from a society, from defined sreyody...

Secondly, in various pravoogranichenijah which are suffered by the citizen owing to enduring the punishment...

Thirdly, the penalty is expressed in variety of restrictions household harakteyora which are born with itself by a finding in corrective-labour uchrezhdeni »31.

·v to the legal literature the punishment under criminal law maintenance in a kind areyosta are considered differently.

V.V. JAkovlev, considering punishment under criminal law in the form of arrest, ukazyva-et on rigid pravoogranichenija condemned, interfaced to deprivation a cart -

Naumov A.V. the Russian criminal law. 2 izd. The reslave. And dop. TH.: BEK, 1999.-S.380.

Criminal law course. The general part. The doctrine about punishment: the Textbook for high schools / Under the editorship of N.F.Kuznetsovoj, and. M.Tjazhkovoj. - M: Zertsalo, 1999. Т.2.-S.12.

"X1

Natashev A. E, correctional labour law N.A.Osnovy's pods of the theory. - M: the Legal literature, 1967. - With. 19.

21 mozhnosti free movement outside of the chamber of prison type and

u/at

The maximum restriction of the civil rights and freedom.

And. V.Polivtsev believes, that «the arrest maintenance is the fullest (that in this case as a whole coincides and with imprisonment), reveals through following retaliatory elements:

1) the fact of condemnation; ".

2) restriction of a freedom of movement of the condemned;

3) certain isolation from a society (including and isolation from the former social environment);

4) pravoogranichenija, the lives connected with rigidly established conditions and a life of the prisoner in special establishment;

5) previous conviction presence ».

A.I.Shilov considering arrest as concerning military men specifies punishment under criminal law, that «arrest is expressed in the following:

1) the Person loses the right to movement under the personal discretion and free definition of the residence.

2) Condemned compulsorily it is isolated from a society, leaving nakayozanie on a garrison (army) guardroom. Isolation condemned seriously limits its spiritual communications with a society.

3) the Person is exposed, to the legal restrictions which degree opredeyoljaetsja the law and depends on behaviour condemned.

4) the State and a society express the censure guilty and soyovershennomu to them to act »34.

iZ Jakovlev V.V. The decree. soch. - with. 88.

33 Polivtsev A.V. Legal regulation of application of arrest as punishment under criminal law kind: Diss... канд.* jurid. Sciences. — Rostov-on-Don, 2001. — С.76. SHilov A.I.Arest concerning military men as punishment, soyoedinennoe with military-corrective influence//Problems legal and kriminologicheskoj cultures of crime control. - M: Russian kriyominologicheskaja association, 2002. - С.67.

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Specified above pravoogranicheny or retaliatory elemenyotov, characterising the maintenance of punishment under criminal law in the form of arrest it is necessary to recognise the list incomplete and partly disputable.

. Let's consider the maintenance of punishment under criminal law in the form of arrest.

First of all, the penalty in punishment under criminal law in the form of arrest is expressed in the fact of condemnation of the person on behalf of the state. Fairly marks And. V.Polivtsev, that «it is difficult to present, that a public negative estimation suyoda... Did not render psychological influence on the person convicted in soveryoshenii of a crime who, besides a negative estimation in its relation, realises its basic change legal and a social status already at this stage of punishment» 35. We will notice only that depending on osobenyonostej persons of the given psychological influence convicted degree can be various.

Following element of a penalty of punishment under criminal law in the form of arrest is strict isolation from a society. Planing, instead of defined, how ukazyyovaet And. V.Polivtsev. The retaliatory element in the form of strict isolation from obshchestyova limits and deprives of the condemned variety of the rights, duties and zayokonnyh interests. So, in particular strict isolation as the retaliatory element of punishment under criminal law in the form of arrest deprives condemned which it is lawful nayohoditsja in territory of the Russian Federation, a constitutional law freely to move, choose a stay and residence place, and also to leave for limits of the Russian Federation (item 27 of the Constitution of the Russian Federation).

It is necessary to notice, that the term to "isolate" it is understood in Russian how to keep away (-ljat) somebody from others, depriving of dialogue with somebody, og-razhdaja from something. V.I.Dal defines a word meaning to "isolate" as «to separate, uedinit, to release from all surrounding» 37.

35 Polivtsev A.V. Legal regulation of application of arrest as punishment under criminal law kind: Diss... kand. jurid. Sciences. - Rostov-on-Don, 2001. - С.76.

36 Ozhegov S. I, Shvedova N. Ju - the Decree. soch. С.242.

'S 37 Distance of live great Russian language: sovremenyo noe a writing: In 4 t. Т.1. А-3. - M: ACT, Astrel, 2001. - С.50.

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P. Makovik considers isolation as a legal category and opredeyoljaet it as «time legal restriction of special communications of the person with its premise in the places defined by the law» 38.

According to V.N.Kudryavtsev under isolation of the criminal its premise in such conditions at which it loses usual svjayozej and contacts to the former environment or a society as a whole »39 follows poniyomat«.

Let's notice, that the term "communication" designates the relation mutual zavisimoyosti, conditionality, a generality between something; close dialogue between somebody; a close acquaintance with somebody, providing support, protection, benefit; the message with whom-something, and also means, kotoyorye give the chance to communicate, сообщаться40. The word "contact" means «close relations, a close connection» l.

E. V.Kurochka considers, that degree of isolation from a society corresponds to degree of restriction of space where probably to realise the rights and svobo -

ды42.

N.A.Struchkov considering the punishment under criminal law maintenance, noticed, that at imprisonment «particularly isolation is expressed in restriction of a freedom of movement and dialogue with other persons, as at large, and in correctional labour institution» 43.

The above-stated of understanding of isolation allows us to consider strict isolation condemned to arrest from a society in following aspects:

That

Makovik R.Izoljatsija as a legal category//the Person: a crime and punishment. - 1994. - №1 (2). - С.42.

39 Kudryavtsev V. N. Crime control strategy. - M: JUrist, 2003.-S.145.

40 Ozhegov S. I, Shvedova N. Ju - the Decree. soch. С.705.

41 Bulyko A. N. The modern dictionary of foreign words. More than 25 thousand words and word-combinations. TH.: Martin, 2004. - С.350.

42 Chicken E.V. of a punishment Problem in criminal law of Russia: Diss... kand. jurid. Sciences. - Saratov, 2000. - С.55.

43 Natashev A. E, theory N.A.Osnovy's Pods ispravitelno - the law of master and servant. - M: the Legal literature, 1967. - With. 19.

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1) deprivation and restriction of the condemned physical contact to a former social environment (a family, native or close people), neznakoyomymi to it the citizens who are outside of lock-up, and also with a new social environment in the lock-up;

2) deprivation and restriction of spiritual contacts condemned with neznakoyomymi to it citizens outside of and within lock-up, and also with a family, the family to it people;

3) deprivation and restriction of the unobstructed physical moving condemned to possibility in space.

The understanding of strict isolation condemned to arrest by means ukazanyonyh aspects allows us to approve, that the maintenance retaliatory elemenyota in the form of strict isolation from a society includes a retaliatory element in the form of restriction of a freedom of movement of the condemned. Accordingly opreyodelenie And. V.Polivtsevym in the maintenance of punishment under criminal law in the form of arrest of an independent retaliatory element in the form of restriction of freedom of re-movement condemned should recognise disputable.

According to the criminally-executive legislation strict isolation at serving of punishment under criminal law in the form of arrest means rasproyostranenie on condemned to arrest of conditions of the maintenance established for condemned to imprisonment, serving time in prison (on praviyolam the general mode). The prison maintenance represents constant stay condemned in premises of chamber type (the general or odinochyonyh). Besides, the concept of strict isolation to arrest includes also a number of others pravoogranicheny:

- Condemned appointments, except for appointments to lawyers and other persons having the right to rendering legal on - hallows are not given; ':

See: Polivtsev A.V. Legal regulation of application of arrest as kind criminal наказания:. Diss... kand. jurid. Sciences. - Rostov-on-Don, 2001. — С.76.

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- Condemned reception of parcels, transfers and parcels post, except for containing articles of prime necessity and clothes on seyozonu is not authorised;

- The general education, vocational training and vocational training of the condemned are not carried out;

- Movement without an escort is not authorised.

It is necessary to notice, that isolation depends also on district in which the condemned serves time punishments. S.I.Dementyev, analyzing criminally-legal and corrective-labour aspects of imprisonment, specifies, that hardly probable there is a necessity to prove, that enduring the punishment in the conditions of the north and the south of our country far unequally. The severe climate of the north znachiyotelno strengthens a penalty. Besides, the author notices, that the location of establishment of executing punishment «influences and realisation of the right to appointment. The further from a former residence serves time liyoshennyj freedom, the less often to it there can arrive relatives» 5.

Partly specified positions by S.I.Dementyev concerning imprisonment concern and arrest. At the same time, it is necessary to notice, that, for example the place a lock-up arrangement cannot influence the right sovershennoletyonih condemned on appointment, as according to ch. Wick of the granted right they are deprived 2 items 69 by the Russian Federation, for exceptions of appointments to lawyers. In otnosheyonii minors a place the lock-up arrangement can quite influence realisation by them the right to appointment as now not each family presumes to spend monthly the financial assets connected with departure for limits of a city, area, area, edge or republic.

In the conclusion of consideration of a retaliatory element of arrest in the form of strict isolation from a society it is necessary to notice, that the given element is one of

Dementyev n. Criminally-legal and ispravitelyono-labour aspects. — Rostov-on-Don: Publishing house Rostov un y, 1981. — С.20.

t* 26 discriminating retaliatory elements of arrest from punishments under criminal law in the form of imprisonment for certain term and lifelong imprisonment.

The penalty in punishment under criminal law in the form of arrest is expressed also in various pravoogranichenijah which are suffered by the citizen owing to enduring the punishment. We will notice also, that a part of these pravrogranicheny proizvodna from the fact izoljayotsii.

Owing to serving of arrest the penalty is shown in certain personal, poliyoticheskih, social and economic both other deprivations and restrictions of the rights and legitimate interests of the condemned. Thus to list particularly all cases in which the rights, anyhow, are limited and legitimate interests osuzhyodennyh to arrest it is hardly probable possible, ' Among deprivations and restrictions condemned to arrest owing to enduring the punishment it is necessary to name, for example deprivation konyostitutsionnogo the rights condemned to arrest to gather peacefully, to spend sobyoranija, meetings and demonstrations, procession and picketing (item 31 of the Constitution of the Russian Federation) to participate in a state administrative office (ch. 1 items 32 of the Constitution of the Russian Federation), on literary, art and other kinds of creativity (item 44 KonstiYOtutsii the Russian Federation), on the privacy of correspondence, telephone conversations, post, telegrafyonyh and other messages etc.

In the form of arrest the penalty consists in punishment under criminal law also that the condemned loses the right to participate in a referendum Russian FederaYOtsii, the rights to select and be the selected works. A.V.polivtsev data pravoograniche-nija carries to certain material restrictions according to the ordered conditions of the maintenance in arestnom доме46, i.e. to pravoograni-chenijam, connected with rigidly established conditions of a life and a life zakljuyochennogo in special establishment.

In our opinion, deprivation of the condemned right to select and be the selected works it is necessary to allocate especially as unlike others pravoogranicheny, soyostavljajushchih the maintenance of arrest and specified in various is standard -

46 Polivtsev A.V. Legal regulation of application of arrest as punishment under criminal law kind: Diss... kand. jurid. Sciences. - Rostov-on-Don, 2001. - С.79.

27 legal acts, the given retaliatory element of punishment under criminal law in a kind areyosta is constitutional, i.e. fixed in the Constitution of the Russian Federation. So, in ch. 3 items 32 of the Constitution of the Russian Federation are underlined, that «have no right to select and be izyobrannym the citizens recognised as court incapacitated, and also soderzhashchieyosja in the places of confinement on a sentence vessels» 47.

Besides, deprivation of the condemned right to select and be the selected works otyorazhaetsja also in some Federal acts of the Russian Federation.

So, for example, in ch. 4 items 3 of the Federal act «About presidential elections of the Russian Federation» from January, 10th, 2003 №19-ФЗ are underlined, that «has no right to elect the President of the Russian Federation and to be the selected President of the Russian Federation, to participate in others selective dejyostvijah the citizen of the Russian Federation recognised as court incapacitated or containing in places of confinement on a sentence vessels» 48.

In ch. 6 items 4 of the Federal act «About elections of deputies of the State Duma of Federal assembly of the Russian Federation» from December, 20th, 2002 №175-ФЗ are noticed, that «has no right to select and be the selected works, uchastyovovat in realisation of other selective actions the citizen of the Rossijyosky Federation recognised as court incapacitated or containing in mesyotah of imprisonment on a sentence vessels» 49.

Deprivation of the condemned right to participate in a referendum Russian FeYOderatsii is fixed in ch. 3 items 2 of the Federal constitutional law «About a referendum of the Russian Federation» from October, 10th, 1995 №2-ФКЗ according to which «has no right to participate in a referendum of the Russian Federation

47 Comment to the Constitution of the Russian Federation. - M: BEK, 1994.-S.101.

The federal act about presidential elections of the Russian Federation. TH.: Omega-l, 2003. - С.4.

49 Federal acts «About elections of deputies of the State Duma of Federal assembly of the Russian Federation","About state avtomayotizirovannoj to system of the Russian Federation"Elections". - M: the Book service, 2003.-S.4.

• 28 citizen of the Russian Federation recognised as court incapacitated or soyoderzhashchijsja in the places of confinement on a sentence vessels »50.

Certainly, considering the specified positions of Federal acts, FeYOderalnogo the constitutional law and the Constitution of the Russian Federation, can arise voyopros: whether «Is the place of serving of arrest the place of confinement?»

In our opinion, it is necessary to answer the given question in the affirmative. Spra-vedlivo marks V.V. JAkovlev, «that punishment in the form of arrest is inherently one of imprisonment kinds along with the imprisonment provided in the system of penalties for certain term and for life, namely the-short-term imprisonment characterised by special conditions of its serving» 51.

Let's notice also, that now in a criminally-legal science bolyoshinstvo authors and scientists are inclined to consider punishment under criminal law in the form of arrest by an imprisonment version.

So, Item G ponomarev specifies, that «arrest is a version liyoshenija freedom for short terms with strict isolation condemned from obshchest-va» 52.

л*

t.

M.N.Stanovsky considers, that «by the legal nature arrest be a certain version of imprisonment» 53.

The penalty at arrest is shown also in variety of restrictions of household character which are born with itself by a finding in specialised uchrezhdeyonii (lock-up, a guardroom).

The federal constitutional law «About a referendum Russian FeYOderatsii». - M: Ось-89,2003. - С.4.

51 Jakovlev V.V. The Criminally-legal characteristic of arrest (teoreticheyosky aspect): Diss... kand. jurid. Sciences. - St.-Petersburg, 1999. - С.76.

The Russian criminal law: In 2 t. Т.1: the General part / Under the editorship of the prof. of L. V.Inogamovoj-Hegaj, prof. B.C. Komisarova, prof. A.I.Raroga. - M: INFRA TH, 2003. - С.445.

Stanovsky n. - SPb.: the legal centre the Press, 1999. С.110.

29

The term "life" in Russian is understood as vital way, povseyodnevnaja жизнь54. In this connection as restrictions of household character sleduyoet to understand the restrictions connected with vital way of the condemned. To tayokovym, for example, it is necessary to carry restrictions connected with rigid ustanovyolennym a daily routine which includes time of lifting, release, priyonjatija food etc.

The size of a penalty peculiar to arrest, is connected also with duration of the given kind of punishment, with duration, instead of with term nakazayonija. The concept means duration of punishment retaliatory vozdej -

А*

stvie on the person for a certain time interval, and the more vremeyoni, the punishment influence on the person is stronger.

According to ch. 1 item 54 UK the Russian Federation arrest is established for the term from odyonogo about six months. According to ch. 5 items 88 UK the Russian Federation arrest are appointed the minor for the term from one about four months.

According to ch. 2 items 37 of Constitutions of the Russian Federation forced labour is forbidden. The given position of the Constitution of the Russian Federation does not extend on condemned to areyostu. According to item 70 the Russian Federation the lock-up administration has the right to involve Wick condemned to works on economic service of lock-up without payment lasting not more than four hours per week. Economic service in the legal literature is understood «as dust cleaning, sanitary-and-hygienic cleaning of premises, small repair pomeshcheyony, furniture, economic stock, work in a laundry, a bath and on other economic objects» 55.

Restriction of the rights condemned to arrest is shown also in a previous conviction. A previous conviction and following from here pravoogranichenija create defined neyoudobstva for the person who have served time, restrain in some cases it intereyosy. According to the item ch. 2 items 86 UK the Russian Federation, condemned to softer kinds of the order -

54 Ozhegov S. I, Shvedova N. Ju - the Decree. soch. С.66.

55 Comment to the Criminally-executive code Russian FedeYO portable radio sets / the Head and otv. red. A.I.Zubkov. - M: INFRA-M-NORM, 1997.-S.137.

zo

nija, than the imprisonment, released from punishment, is considered the person with clean criminal record after one year after punishment departure. The given position otnoyositsja and to condemned, leaving arrest.

As punishment under criminal law in the form of arrest is provided as well to military men, which according to ch. 3 items 54 leave arrest on gayouptvahte, it is necessary to specify a number of special retaliatory elements primenjaeyomyh only to military men.

According to ch. 3 items 10 of the Federal act «About the status of military men» from May, 27th, 1998 №76-ФЗ time of a finding of citizens for military service under the contract are set off in their general seniority, joins in the experience gosuyodarstvennoj services of the civil servant and in the work experience on spetsiyoalnosti at the rate of one day of military service for one day of work, and time of a finding of citizens on military service on an appeal (including the officers called on military service according to the decree of the President of Rossijyosky Federation) - one day of military service for two days работы56. However ukayozannoe law position does not concern the condemned military men otbyyovajushchim punishment under criminal law in the form of arrest. So, in ch. 1 item 154 Wick the Russian Federation ukazyyovaetsja, that time of enduring the punishment in the form of arrest condemned voennosluyozhashchim is not set off in the aggregate term of military service.

In item 2 of item 22 of Position about an order of the service approved by the Decree of the President of the Russian Federation from September, 16th, 1999 №1237, it is underlined, that for passage of military service to following military ranks following terms are established: the private soldier, the sailor - five months; the younger sergeant, starshiyona 2 articles - three months; the sergeant, the foreman of 1 article - three months; the senior sergeant, the main foreman - three months; the ensign, the warrant officer — three years; the second lieutenant - one year; the lieutenant — two years; the senior lieutenant — two years; the captain, the captain-lieutenant - three years; the major, the captain 3 ranks — three years;

The federal act «About the status of military men». 9 izd. - M: Os-89,2004.-SlZ.

•. зі

The lieutenant colonel, the captain 2 ranks - four years. Position of the given norm does not extend on condemned to arrest. According to ch. 1 item 54 Wick enduring the punishment time the condemned military man is not set off by the Russian Federation in a length of service for assignment of the next military rank.

According to item 2 of item 47 of the Federal act «About military objazannoyosti and military service» from March, 28th, 1998 №53-Ф3 the next military rank to the military man is appropriated in day of the expiry of the term of its military service in the previous military rank if it holds a military post, for koyotoroj by staff the military rank equal or higher, than the military rank appropriated военнослужащему58 is provided. The given legislative norm does not extend on the condemned military men to arrest. So, according to ch. 2 items 154 УРІК the Russian Federation. The condemned military men to arrest liyosheny possibilities to be presented to assignment next voinskoyogo ranks.

Following special retaliatory element of punishment under criminal law in the form of arrest is position, {specified in ch. 2 items 154 Wick the Russian Federation, that the condemned military man at arrest departure cannot be appointed to a higher post. The specified norm does not allow to realise a legitimate interest condemned to be appointed to a higher post, zakrepyolennyj in Federal act item 43 «About a conscription and military service» from March, 28th, 1998 №53-Ф3. According to item 3 of item 43 given FederalnoYOgo the law the military man, passing military service under the contract, has the right to offer on consideration of a corresponding certifying commission the nominee for appointment on released or vacant military должность59.

Position about an order of passage of military service. 4 izd. - M: Os-89,2004.-S45.

With

New in the military legislation of the Russian Federation (the collection of documents). - M: Omega-l, 2004. - С.64. 59 in the same place. - С.62.

32

According to item 4 of item 15 of Position about an order of the service approved by the Decree of the President of the Russian Federation from September, 16th, 1999 №1237, voennoyosluzhashchy, passing military service on an appeal, it is translated to a new place of military service without it согласия6.

In ch. 2 items 6 of the Federal act «About the status of military men» from May, 27th, 1998 №76-ФЗ are fixed position that military men, prohodjayoshchie military service under the contract, have the right to change of a place of military service, including on transfer in; ' other district, according to zakljuyochennymi them contracts, taking into account conditions of passage of military service, a state of health of military men and members of their families (on the basis zakljuyochenija the military-medical commission) and on other bases established by Position about an order of passage military службы61.

However positions of considered regulatory legal acts ograyonichivaetsja ч.2 item 154 Wick the Russian Federation in which it is underlined, that condemned voenyonosluzhashchy cannot be translated on the new duty station.

In item 1 of item 51 of the Federal act «About a conscription and military service» from March, 28th, 1998 №53-Ф3 it is underlined, that the military man podleyozhit to dismissal from military service:

On age - on reaching age limit of stay on voyo ennoj to service;

After the expiry of the term of military service on an appeal or contract term;

On a state of health - in connection with a recognition its military-medical commission not suitable for military service;

On a state of health - in connection with a recognition military-medical which mission ogranichenno suitable for military service of the military man, passing go military service under the contract on a military post, for which staff

Position about an order of passage of military service. 4 izd. - M: Os-89,2004.-S34.

61 Federal act «About the status of military men». 9 izd. - M: Os-89,2004.-S.13.

t*. zz military rank to the foreman or main ship staryoshiny inclusive, and passing military service on an appeal is provided;

In connection with deprivation of its military rank;

In connection with becoming res judicata of a sentence of court about appointment to the military man of punishment in the form of imprisonment;

. In connection with deduction from military educational institution proyofessionalnogo formations;

In connection with becoming res judicata of a sentence of court about deprivation voyoennosluzhashchego the rights to occupy military posts during defined срока62.

According to ch. 2 items 15L4 Wick the Russian Federation the condemned military man to arrest lose the right to leave from military service. An exception are only cases of its recognition unusable to military service on a condition zdoroyovja.

Special retaliatory element of punishment under criminal law in a kind areyosta material character is the position reflected in ch. 3 items 154 Wick the Russian Federation, that during arrest serving the monetary maintenance is paid to the condemned military men at a rate of the salary on military rank. We will notice, that according to Federal act item 12 «About the status voennosluzhayoshchih» from May, 27th, 1998 №76-ФЗ a monetary contentment of military men sostoyoit from the monthly salary according to a post (further — okyolad on a military post) and the monthly salary according to the appropriated military rank (further — the salary on military rank) which constitute the salary of the monthly monetary maintenance of military men (further — the salary deyonezhnogo maintenances), monthly and other additional payments (further - doyopolnitelnye payments) 3.

New in the military legislation of the Russian Federation (the collection of documents). - M: Omega-l, 2004. - С.66.

63 Federal act «About the status of military men». 9 izd. - M: Ось-89, 2004.-with. 19-20.

34

Considering position ch. 3 items 154 the Russian Federation should be noticed Wick, that actually the legislator limits the salary of the monetary maintenance voennoyosluzhashchih to arrest, but does not regulate restriction monthly and others before the payments constituting a monetary contentment of military men.

The specified position is regulated in item 28 of Rules of serving ugoyolovnyh the punishments by the condemned military men approved by the order of the Ministry of Defence of the Russian Federation from July, 29th, 1997 №302, agrees which the additional monetary payments established by the Minister of Defence, condemned voennoyosluzhashchim, passing military service under the contract and on an appeal, during arrest serving not выплачиваются64. Thus, it is necessary to speak about one special retaliatory an element of arrest in the form of deprivation of the condemned military man the right to additional payments.

The right to additional payments of the condemned military men zakreyopljaetsja in Federal act item 13 «About the status of military men» from May, 27th, 1998 №76-ФЗ according to which the military man, passing military service under the contract, honesty fulfilling duties of military service, following the results of calendar (educational) year under the decision of the commander voinyoskoj single monetary compensation in the size established by the Government of the Russian Federation can be paid a part, but not less than three salaries of the monetary maintenance.

Besides, the military man, passing military service on kontrakyotu, provides payment of the award for exemplary performance of a soldier's duty at the rate to three salaries of the monetary maintenance, and also there is a material aid at a rate of not less than two salaries of the monetary maintenance in an order defined by the Government of the Russian Federation.

At departure in the basic holiday, and also in sick leave (on osnovayonii the conclusions of the military-medical commission) to the military men serving on an appeal, payment at a rate of not less than one salary of the monetary maintenance is made.

64 BNAFOIV. - 1998. - №1.

■ 35 From means of the Ministry of Defence of the Russian Federation (other federal body isyopolnitelnoj to the power in which the federal act provides military service) the military man, passing military service under the contract, the monthly extra charge can be paid for complexity, intensity and spetsiyoalnyj a mode of military service at the rate to 70 percent of the salary on a military post in an order defined by the Ministry of Defence of the Russian Federation (to others fede -

».

ralnym enforcement authority in which the federal act provides military service).

The military man, passing military service under the contract, ezhemeyosjachno pays the percentage long-service bonus to salaries of the monetary maintenance next sizes at a period of service: from half a year till 1 year — 5 proyotsentov; from 1 till 2 years — 10 percent; from 2 till 5 years — 25 percent; from 5 till 10 years - 40 percent; from 10 till 15 years - 45 percent; from 15 till 20 years — 50 percent; from 20 till 22 years—55 percent; from 22 till 25 years - 65 percent; 25 years and more — 70 percent.

It is necessary to notice also, that in the legal literature separate avyotory specify, that condemned to arrest have not the right to additional payments. So, V.D.Ivanov notices, that «other kinds of a contentment, the salary on posts, and also monthly extra charges for special conditions of service, a length of service, klassnost etc. to them are not paid» 65.

A number of authors consider, that given pravoogranichenie it is especially notable for officer and commanding состава66. Others believe, that it oshchuyotimo for officers, ensigns (warrant officers), sergeants (foremen) and private soldiers

The criminally-executive right. The textbook / Under the editorship of V.D.Ivanov. — M: PRIOR, 2000. - With. 146.

66 Criminally-executive right of Russia: the theory, the legislation, the international standards, domestic practice of the end XIX - the XXI-st century beginnings: the Textbook / Under the editorship of A.I.Zubkova. 2 izd., the reslave. And dop. - M: NORM, 2002. - With. 154; the criminally-executive right of Russia: the Manual / Under the editorship of O.G.Perminova. - M: JUrid. Lighted., 2001. - S.ZZZ.

36 (sailors) of contract service having on the expense of a family. In our opinion considered pravoogranichenie also it is rather notable for the condemned military men to arrest of not having families, but having on izhyodivenii other persons, for example, aged parents.

According to item 26 of Rules of serving of punishments under criminal law osuzhdenyonymi the military men, the Ministry of Defence of the Russian Federation approved by the order from July, 29th, 1997 №302, the chief of a guardroom has the right to involve condemned to work no more than four hours per day. Whether thus in Rules it is not underlined is

The given work paid or free.

і ' the carried out analysis of deprivations and restrictions of the rights and legitimate interests

Condemned to arrest allows us to approve, that the maintenance of the criminal

Punishments in the form of arrest consists:

1) in the expressed negative estimation of behaviour of the person from the party gosuyodarstva;

2) in strict isolation condemned from a society;

3) in various pravoogranichyonijah which the citizen in force otyobyvanija suffers punishments;

4) in the debaring to participate in a referendum of the Russian Federation, the right to select and be the selected works;

5) in restrictions of household character which are born with itself by a finding in the specialised agency; 1

6) in duration of punishment under criminal law in the form of arrest;

7) in compulsory attraction condemned to arrest to works on hoyozjajstvennomu to service of lock-up without payment lasting not more than four hours per week, and concerning the condemned military men to arrest in compulsory attraction to work no more than four hours per day;

The criminally-executive right. The textbook / Under the editorship of V.D.Ivanov. — M: PRIOR, 2000. - With. 146; Ivanov V. D. Criminally-executive right RosYOsii: the Textbook. - Rostov-on-Don: the Phoenix, 2002. - С.291.

37

8) available conditions of a previous conviction within 1 year after departure naka-zanija;

9) in nevkljuchenii time of serving of punishment under criminal law in the form of arrest in the aggregate term of military service;

10) in nevkljuchenii time of serving of arrest in a length of service for prisvoeyonija the next military rank;

11) in possibility deprivation to be presented to assignment ocheredyonogo military rank;

12) in impossibility during arrest serving condemned voennoyosluzhashchemu to be appointed to a higher post;

13) in impossibility to be translated on the new duty station;

14) in an interdiction to the condemned military man to leave with military SLUZH -

ІМ

; ':

15) in deduction from the monetary maintenance condemned voennosluzhashcheyogo to salary arrest after a military post i.e. restriction monetary soderyozhanija the condemned military man in the size of the salary on military rank;

16) in deprivation of the condemned military man the right to additional payments.

According to ch. 1 item 43 UK the Russian Federation punishment consists in predusmotyorennyh UK the Russian Federation deprivation or restriction of the rights and freedom of the person recognised viyonovnym in committing a crime.

However the carried out analysis pravoogranichenii, components soderzhayonie punishment under criminal law in the form of arrest, allows to approve, that in dejstvi-telnosti substantial elements of arrest are provided by norms not only criminal, but also the criminally-executive legislation, and also other regulatory legal acts. Besides, it is necessary to notice, that a number of normativyono-legal certificates of criminally-executive character not only contains a number additional pravoogranichenii, strengthening the retaliatory party of punishment under criminal law in the form of arrest, but also narrows volume pravoogranichenii danyonogo a punishment kind. So, in particular in item 26 of Rules of serving criminal on -

38 kazany the condemned military men, approved by order MinoboroYOny the Russian Federation from July, 29th, 1997 №302, is underlined, that the chief of a guardroom has the right to involve condemned to work no more than four hours per day. The condemned military men are involved in work more often, the civilians rather than condemned to arrest (the condemned military men - no more than four hours per day, and the condemned civilians — no more than four hours per week). In item 28 of Rules contains also additional pravoogranichenie in a kind lisheyonija the right of the condemned military man to arrest on additional vyplayoty. According to ch. 5 items 69 Wick the Russian Federation condemned to arrest can be razyoreshen telephone conversation with relatives at exclusive personal obstojayotelstvah, i.e. in the general order telephone conversations with relatives not osushchestyovljajutsja. At the same time position ch. 1 items 71 Wick that for good poyovedenie to condemned to arrest measures of encouragement in the form of the permission to telephone conversation can be applied narrows the Russian Federation pravoogranichenie in the form of an interdiction in accordance with general practice telephone conversations with relatives.

In the legal literature it was repeatedly marked on necessity of reflexion for the criminal legislation of all pravoogranicheny, vhoyodjashchih in the maintenance of this or that kind of punishment under criminal law.

It is impossible to disagree also, with the statement, that «the criminally-executive legislation, anticipating an establishment of an order and conditions of serving of this or that kind of punishment under criminal law, can reproduce those or others pravoogranichenija, entering into the maintenance of a certain kind ugoyolovnogo punishments, but not to establish them independently» 68.

Character considered pravoogranicheny, components soderzhayonie punishment under criminal law in the form of arrest, allows to approve about actual presence of two kinds of arrest: 1) civil (the civilian) arrest, i.e. arrest primeyonjaemyj to civil (the civilian) to persons; 2) military arrest, i.e. arrest to the tonic -

V.N.Kriminopenologichesky's eagles the analysis of a place and functions ugolovyonogo punishments in the form of arrest//Works of faculty of law of Stavropolyosky state university. Release. 7. - Stavropol: Servisshkola, 2004.-S.201.

3?

njaemyj to military men. Thus the second kind of arrest under the maintenance oblayodaet, certainly, big retaliatory maintenance.

It is necessary to carry following retaliatory elements to the general elements inherent in two kinds of punishment under criminal law in the form of arrest:

1) a negative estimation of behaviour of the person expressed from the party gosuyodarstva;? '

2) strict isolation condemned from a society;

3) in various pravoogranichenijah which the citizen in force otyobyvanija suffers punishments;

4) in the debaring to participate in a referendum of the Russian Federation, the right to select and be the selected works;

. 5) restrictions of household character which are born with itself by a finding in the specialised agency;

6) duration of punishment under criminal law in the form of arrest;

7) in compulsory attraction condemned to arrest to works (I rub -

du);

8) presence of a condition of a previous conviction within 1 year after departure nakazayo nija.

Special retaliatory elements inherent in military arrest are:

1) nevkljuchenie time of serving of punishment under criminal law in the form of arrest in the aggregate term of military service;

. 2) nevkljuchenie time of serving of arrest in a length of service for assignment of the next military rank;

3) the debaring to be presented to assignment next voinyoskogo ranks;

4) the debaring of the military man to be appointed to a higher post; * •

5) impossibility to be translated on the new duty station;

6) the interdiction to the condemned military man to leave from military service;

•• ■ 40

7) deduction from the monetary maintenance of the condemned military man to salary arrest on a military post i.e. restriction of the monetary maintenance of the condemned military man in the size of the salary on military rank;

8) compulsory attraction of the condemned military man to work no more than four hours per day;

9) deprivation of the condemned military man the right on additional vyyoplaty.

The various retaliatory maintenance of the given two kinds criminal nakayozanija in the form of arrest allows us to approve about existence actually two independent kinds of punishment under criminal law: civil (civilian) arrest and military arrest. In this connection it is necessary to provide in item 44 UK the Russian Federation two independent kinds of punishments under criminal law: the item both"civil (shtatyosky) arrest and the item"to"military arrest. Accordingly point) to consider as point etc. Considering, that according to the Federal act from December, 8th, 2003 №162-ФЗ the item has become invalid, other variant is possible also, for example, in the item to specify freedom restriction, the item"z"- civil arrest and in the item"and"- voyoennyj arrest. Accordingly to name item 52 UK the Russian Federation« freedom Restriction », item 53 UK the Russian Federation -« Civil arrest », and item 54 UK the Russian Federation —« Military arrest »follows.

Taking into account the above-stated it is necessary to offer following formuliyorovku item 53 and item 54 UK the Russian Federation:

Article 53. Civil arrest

1. Civil arrest consists in aggregate deprivations and ogranicheyony the certain rights and legitimate interests condemned, interfaced to strict short-term isolation from a society in lock-up in the conditions of the general mode in prison for condemned to imprisonment.

2. Arrest is established for the term from one about six months.

3. Condemned to arrest loses the right to participate in a referendum of Rosyosijsky Federation, the right to select and be the selected works.

------ g - 0. і - КННАЯІ

41 I-----Pg.sijsklja - ' ^1 about the l flew

4. Condemned to arrest are not given - svida "нйя7за by an exception of appointments to lawyers and other persons having the right to rendering juridiyocheskoj of the help.

5. Condemned to arrest reception of parcels, transfers and parcels post, except for containing articles of prime necessity is not authorised and

■ #. Clothes on a season.

6. The general education, vocational training and professionalyonaja preparation condemned to arrest is not carried out.

7. Movement condemned to arrest without an escort is not authorised.

8. Condemned to arrest have not the right to get monthly produkyoty a food and articles of prime necessity for the sum exceeding 20 percent of the minimum wage rate.

"" 9. Condemned to arrest are involved in works on economic about -

sluzhivaniju lock-up without payment lasting not more than four hours per week.

10. Owing to serving aresta'osuzhdennye to the given kind of punishment moyogut to test and a number of other personal restrictions of the rights, duties and zakonyonyh interests, and also to be exposed to restrictions of household character, koto-rye bears with itself a finding in lock-up.

* Article 54. Military arrest

1. Military arrest consists in aggregate deprivations and restrictions of the certain rights and legitimate interests of the condemned military man, soyoprjazhennyh with strict short-term isolation from a society on a guardroom in the conditions of the general mode in prison for condemned to imprisonment.

2. Arrest is established for the term from one about six months.

3. The condemned military man to arrest loses the right to participate in a referendum of the Russian Federation, the right to select and be the selected works.

4. The condemned military man to arrest does not give appointments, except for appointments to lawyers and other persons having the right to rendering of a legal aid.

• 42

5. To arrest reception poyosylok, transfers and parcels post, except for containing articles of prime necessity and clothes on a season is not authorised to the condemned military men.

6. The general education, vocational training and professionalyonaja preparation condemned voennbsluzhashchih to arrest is not carried out.

7. Movement of the condemned military men to arrest without an escort is not authorised.

8. The condemned military men to arrest have not the right to get monthly a foodstuff and articles of prime necessity for the sum exceeding 20 percent of the minimum wage rate.

9. The condemned military men to arrest are involved in work no more than four hours per day.

. 10. The period of serving of arrest in the aggregate term of military service not zaschity-vaetsja.

11. Time of serving of arrest in a length of service for assignment of the next military rank is not set off!:

12. During arrest serving the condemned military man cannot be presented to assignment of the next military rank.

13. In arrest serving the condemned military man cannot be appointed to a higher post.

14. During arrest serving the condemned military man cannot be translated on the new duty station.

15. In arrest serving the condemned military man cannot be dismissed from military service, except for cases of its recognition negodyonym to military service on a state of health.

16. During arrest serving the monetary maintenance is paid to the condemned military man at a rate of the salary on military rank.

17. The additional monetary payments established by the minister oboyorony to the condemned military man, passing military service on kontrakyotu and on an appeal, during arrest serving are not paid.

43

18. Owing to arrest serving the condemned military men to data viyodu punishments can test and a number of other personal restrictions of the rights, objazanyonostej and legitimate interests, and also to be exposed to restrictions household hayoraktera which are born with itself by a finding on a guardroom.

Definition actually two independent kinds criminal nakayozanija — civil (civilian) arrest and military arrest - assumes and naliyochie independent forms of the specified kinds of punishments.

It is necessary to notice, that the term "form" in Russian means a way of existence of the maintenance, inseparable from it and serving by its expression; an external outline, an exterior предмета69.

In philosophy the form is understood «first of all as an external outline, a subject exterior, external expression of any maintenance, together with internally a structure, the structure, the certain and defining order of a subject or an order of course of process unlike it« amorphous »mayoteriala (matters), the maintenance or contents» 70.

With. V.Maksimov specifies in the following signs characterising the form of punishment:

«) punishment can be carried out only in forms (kinds), predusmotyorennyh item 44 UK (the court cannot vgaznachat the punishments which kind directly is not provided UK);

Punishment cannot have the torture form, to be severe or I degrade -

71

shchim human advantage (item 21 of the Constitution of the Russian Federation) ».

After A.I.Martsev approves, that «for imprisonment the form nakayozanija is expressed in imprisonment term, and also in the form of a mode ispraviyotelnogo establishments» 72.

. Ozhegov SI., Shvedova N.J. - the Decree. soch. С.855.

The short philosophical encyclopaedia. - M: "Progress" - "EntsiklopeYOdija", 1994.-S.489.

71

Criminal law of the Russian Federation: In 2 t. Т.1: the General part: the Textbook / Under the editorship of L.V.Inogamovoj-Hegaj. - M: INFRA TH, 2002. - S.253-254.

.. 44

I.J.Fojnitsky believed, that «punishment represents prinuzhdeyonie, applied to made criminal action. Compulsion it can accept various forms of physical and mental influence on ljch-nost...». It is fairly noticed in the legal literature, that «in this case it is necessary to speak and about material influence on the person» 74. However at arrest material influence does not appear on condemned grazhdanyoskih persons.

The term "influence" in Russian is understood as «to render vlijayonie on a business course» 75.

Considering the above-stated, under the form of punishment under criminal law offered by us in the form of civil (civilian) arrest it is necessary to understand ustanovyolennoe compulsory physical and mental influence on osuzhdennoyogo, carried out during the certain period of time. As the form ugoyolovnogo punishments in the form of military arrest acts established prinudiyotelnoe physical, mental and material influence on the condemned military man, carried out during certain term of its service.

Let's notice thus, that the specified forms of punishments under criminal law offered by us can be similar among themselves on duration prinudiyotelnogo influences.

Thus, the carried out analysis of essence, the maintenance and the form ugoyolovnogo punishments in the form of arrest allows us to make a number of the basic conclusions:

- ugolovnogolnakazanija in the form of arrest it is necessary to understand set of deprivations or restrictions of the certain rights as essence and lawful inte -

Martsev A.I.Spetsialnoe the prevention of crimes: Studies. posoyobie. - Omsk: OVSH the Ministry of Internal Affairs of the USSR, 1977. - С.19.

73 Fojnitsky I.JA.doctrine about punishment in connection with tjurmovedeniem. — M: Dobrosvet - 2000, Gorodets, 2000. - С.9.

V.N.Kontseptualnye's 74 Eagles punishment under criminal law questions//Works of faculty of law of the North Caucasian state technical university: the Collection of proceedings. Release 5. - Stavropol: SevKavGTU, 2004.-with. 119.

75 Ozhegov SI., Shvedova N.J. - the Decree. soch. С.92.

45 resov condemned, interfaced to strict short-term isolation from a society in the establishment intended for it;

- Character rassmatrivaemyhpravoogranicheny, components containing-nie punishment under criminal law in the form of arrest, allows to approve about actual presence of two kinds of arrest: 1) civil (the civilian) arrest, i.e. arrest primeyonjaemyj to civil (the civilian) to persons; 2) military arrest, i.e. arrest primeyonjaemyj to military men. In this connection it is necessary to provide in item 44 UK the Russian Federation two independent kinds of punishments under criminal law: the item both"civil (civilian) arrest and the item"to"military arrest. Accordingly point to consider as point etc. Considering, that according to the Federal act from December, 8th, 2003 №162-ФЗ the item has become invalid, other variant is possible also, nayoprimer, in the item to specify freedom restriction, the item"z"- civil arrest and in the item"and"- military arrest. Accordingly to name item 52 UK the Russian Federation item 53 UK the Russian Federation -« Civil arrest », and item 54 UK the Russian Federation -« In-ennyj arrest »follows« OgraYOnichenie freedom ».

- Definition actually two independent kinds criminal nakayozanija — civil (civilian) arrest and military arrest — assumes and naliyochie independent forms of the specified kinds of punishments. predlayogaemogo us of punishment under criminal law in the form of civil (civilian) arrest it is necessary to understand the established compulsory physical and mental influence as the form on condemned, carried out during the certain period of time. As the form of punishment under criminal law in the form of military arrest acts established compulsory physical, mental and material vozyodejstvie on the condemned military man, carried out during opredeyolennogo term of its service.

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A source: Ryabova Lilija Viktorovna. ARREST AS the PUNISHMENT UNDER CRIMINAL LAW KIND: CRIMINALLY-LEGAL And CRIMINALLY-EXECUTIVE ASPECTS. The dissertation on competition of a scientific degree of the master of laws. Stavropol -. 2005

More on topic 1.1. Essence, the maintenance and the form of punishment under criminal law in the form of arrest:

  1. Chapter 2. Appointment and execution of punishment under criminal law in the form of arrest
  2. 1.2. The characteristic of punishment in the form of arrest in the modern criminal legislation of foreign countries
  3. Chapter 1. Concept of punishment in the form of arrest in Russia and the characteristic in the criminal legislation of foreign countries
  4. 2.2. An order, conditions and some problems of execution and enduring the punishment in the form of arrest
  5. 2.1. The Criminal sentencing in the form of arrest
  6. the Factors influencing forecasting of efficiency of execution of punishment under criminal law in the form of restriction of freedom
  7. the Modern condition and problems of a legal regulation and practice of appointment and execution of punishment under criminal law in the form of freedom restriction
  8. the Basic kriminologicheskie the determinants promoting increase of efficiency of execution of punishment under criminal law in the form of restriction of freedom
  9. § 1. Essence of punishment. A punishment under criminal law and criminal liability parity
  10. the Technique of definition of efficiency of punishment under criminal law in the form of restriction of freedom taking into account the business factors accompanying application of electronic means of tracking for condemned
  11. CHAPTER 2. PUNISHMENT, AS the FORM of REALIZATION of the CRIMINAL LIABILITY.
  12. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  13. § 2. Concept and essence of criminal procedure proving taking into account features of representation of the information on the facts in electronic form
  14. § 3. Representation, research and an estimation as proofs of the information presented in electronic form, by consideration by criminal case court in essence
  15. Chapter 2. Punishment under criminal law: essence, the purposes and the influence mechanism
  16. the CHAPTER I. FRANCHAJZING AS the SPECIFIC FORM of SMALL BUSINESS: ESSENCE, PROBLEMS of SCIENTIFICALLY - METHODICAL MAINTENANCE
  17. Ryabov Lilija Viktorovna. ARREST AS the PUNISHMENT UNDER CRIMINAL LAW KIND: CRIMINALLY-LEGAL And CRIMINALLY-EXECUTIVE ASPECTS. The dissertation on competition of a scientific degree of the master of laws. Stavropol -, 2005 2005
  18. § 1. Concept and subjects of maintenance of criminal procedures held in custody or serving time in the form of imprisonment
  19. § 4. The elements of the criminal procedure form directed on maintenance of safety of information technologies
  20. § 2. Maintenance held in custody or serving time in the form of imprisonment of the right to reasonable term of the criminal trial and a personal immunity