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rather-legal analysis of the punishments connected with restriction of freedom, in Russia and foreign countries

the Domestic penal system, being based on historical preconditions of the Soviet period, also has tried to consider experience of introduction of restriction of freedom as an alternative way of imprisonment of some the foreign states (the Great Britain, Italy, France, Sweden, Spain, Switzerland, Kazakhstan) [48] .

Now the control over behaviour of the persons condemned to restriction of freedom, is carried out by means of individual means of tracking [49] . Such way of maintenance of execution of punishment is characteristic for the majority of the foreign states.

In many countries the sanctions similar to the Russian variant of restriction of freedom are applied. Some researchers agree in opinion, that those states in which the given kind of punishment is applied, it is possible to divide into groups, depending on an enduring the punishment place [50] . The first group includes the countries for which freedom restriction is left in specialised agencies (Byelorussia, Georgia, Republic Tajikistan). Besides, in Ukraine the person is isolated from a society [51] . In the countries of the second group the freedom condemned to restriction serve time on a residence (Kazakhstan, Lithuania, Poland). In the third group there are states, in which the mixed variant presented by the mechanism probatsii (the United Kingdom the Great Britain and Northern Ireland, Federal Republic Germany,
Kingdom Spain, the Latvian republic, Republic Moldova, the USA, the French Republic, Kingdom Sweden) [52] functions. In the states of all three categories the behaviour of the condemned is supervised. But in the countries of the first type electronic means of tracking are not used. Under fair remark E. V.Kolbasovoj, in the criminal legislation of the states from the third category mechanisms the closest under the maintenance to institute of restriction of freedom, existing in Russia [53] function.

In many countries there are features of execution of the given kind of punishment. In Poland and Lithuania besides the duties connected with personal restraint condemned, there are also duties of performance of work, which is specified by court (Republic Poland UK item 34-36, item 48 UK of Lithuania) [54] . Other name of the given sanction without change of its essence is found out in article 48 UK of Spain (the debaring to be or visit certain districts), in ž 33

Obshchegrazhdansky UK Norway (an interdiction for a finding in certain areas), in articles 38-41 UK of China (supervision) and in some other states. Considered punishment can be met and in some countries of a Muslim legal family - article 20 of the Law about Islamic punishments under criminal law of Iran (punishment in the form of full or partial deprivation of social rights and restriction of freedom of choice of a residence) [55] .

Z. R.Rahmatulin, analyzing positions of the legislation of Italy, pays attention, that two groups of measures are included in structure of personal security measures. To the personal security measures connected with restriction of freedom, concern: 1) a direction on agricultural settlement or
in labour establishment; 2) a premise in a special medical institution; 3) a premise in special psychiatric facility; 4) a premise in reformatory.

To number of the personal security measures which have been not connected with restriction of freedom, concern: 1) supervision; 2) an interdiction for residing in one or several communes or in one or several provinces; 3) an interdiction for visiting of taverns and places where there is a trade in alcoholic drinks; 4) dispatch of the foreigner from the state. On the basis of it, it is possible to draw a conclusion on essential distinctions in positions of the Russian and Italian legislation. So, to measures which in Italy are connected with freedom restriction, what in Russia are carried to forced measures of medical character or to the punishments connected with compulsory labour influence or with isolation from a society concern. For example, the premise in reformatory is applied to minors (item 223 UK of Italy). Maintenance term in this establishment not less than one year. If this security measure is applied to "habitual" or professional criminals, and also to the persons inclined to fulfilment of crimes maintenance term should be not less than three years [56] . Besides it, distinction of the Russian and Italian criminal legislation in considered sphere consists that the personal security measures which have been not connected with restriction of freedom, in Italy are applied together with punishment. In Russia they, on the contrary, constitute its essence. In our country supervision is an obligatory component of restriction of freedom [57] .

In the criminal law of France exists two kinds of punishment which have similar lines with the Russian restriction of freedom. The first of them represents an extreme variant of an interdiction of stay in certain territory (namely, in territory of France). It can be
definitive or be appointed for the term up to 10 years to the foreigners who have made offence or a crime. This measure represents exclusion from the country (in some cases already after departure of punishment in the form of imprisonment). Hence, the person is limited in the residence and moving option. As is will lock to be (and therefore) to live in all territory of the country. The criminal law of France also regulates application of institute more similar to Russian institute źfreedom restriction╗. Namely: the punishment representing prohibition to appear in some places, established by court (a residence interdiction). The given measure means an establishment of supervision for condemned and is appointed for the term up to 10 years [58] .

Deportation of criminals is provided in legislations of many countries. It is close inherently to applied in our country in the past to punishment in the form of the reference (which is the predecessor of restriction of freedom). However essential difference is that the criminal does not refer on okrainnye territories, and is sent for state limits. Deportation procedure is not always regulated by the criminal legislation. For example, in the USA possibility of its application is provided in the migratory legislation. There are six bases on which the person who does not have citizenship of the USA, can be expelled for country limits: 1) infringement of the legislative guidelines regulating the status of the migrant; 2) committing a crime; 3) refusal of registration or falsification of documents; 4) infringement of national safety; 5) unreasonable reception of the state maintenance within five years after arrival in the country; 6) illegal voting [59] .

In Costa Rica upon termination of proceeding lasting sixteen years the 84-year-old man recognised as the nazi criminal [60] has been deported.

Thus, it is possible to classify the foreign states in which the measures similar to restriction of freedom are applied, on following bases:

1) presence (or absence) attraction condemned to labour activity. Performance of works by persons by which the measures similar to restriction of freedom are appointed, is characteristic for the legislation of Poland, Lithuania, Italy;

2) a regulation in the criminal legislation of possibility of deportation of the criminal from the country (for example, France, etc.). On UK Kosta - Riki exclusion is considered the basic punishment. In the Peoples Republic of China dispatch of foreign subjects can be considered both as independent, and as the supplementary measure [61] ;

3) reference of some components of restriction of freedom not to punishments under criminal law, and to security measures. For example, Italy;

4) presence (or absence) possibilities of application of procedure probatsii.

we Believe, that the institute probatsii deserves special attention. In the USA the mechanism probatsii which is to relatives inherently to freedom restriction [62] is applied. The given concept widespread in the countries of an Anglo-Saxon legal family (England, the USA). As a rule, its essence constitutes attraction to work and putting on of other duties on
probationeers of persons [63] . Now in the countries romano-German legal families (France) this measure also has received a wide circulation.

In the criminal legislation of the foreign states there is a simple delay (probation) and a delay complicated (probatsija), that does not allow to speak about their identity. Considering essence of these categories, it is possible to allocate their basic difference. The category "probation" means, that punishment execution does not occur during a trial period. In case of appointment probatsii there is a specific performance of punishment without isolation condemned from a society. Its maintenance constitutes a combination of imposing of duties on condemned (which performance occurs under supervision) and rendering of the help by it for effective rehabilitation [64] .

probatsija, applied in the USA, means, that execution of sentence is postponed in general or stops at observance of any conditions during certain term [65] . In the Great Britain the service probatsii is the body executing all punishments, except for imprisonment. There is a sanction named źelectronic monitoring╗ (house arrest) which is close under the maintenance with freedom restriction in Russia. This punishment assumes, that the condemned should be at home during certain time that is supervised by the authorised services [66] .

the Service probatsii closely co-operates with municipal and public services, and also with public organisations and with
private persons who should render them assistance. Representatives of service probatsii possess powers of representatives of authorities [67] .

Long-term functioning of service probatsii in the foreign states shows positive results. For example, there is a possibility to cut expenses on maintenance of activity of bodies and the establishments executing punishment. Besides it, decrease in level of recurrent criminality [68] is observed.

In Russia such punishments as restriction of freedom and probation possess similar pravoogranichenijami to which the condemned is exposed. As a result of it there are complexities with differentiation of the given sanctions at pravoprimenitelej. First of all it concerns those cases when one sentence appoints probation, and then with other sentence to the condemned freedom restriction is appointed. It can occur in case the criminal has made the second act before removal of the first sentence, but about it it became known already after court. The given situation does not mean probation cancellation.

Besides, the court can simultaneously appoint both probation, and freedom restriction. So, for example, in cassation definition of the full court on criminal cases of the Samara provincial court from 12. 02. 2014 ╣ 22-679/2014 it is possible to find a corresponding example. The court retrained actions of the person from item 158, ch. 3, the item "and" UK the Russian Federation on the item ź And ╗ch. 3 items 158 UK the Russian Federation in edition FZ ╣ 26 from 07. 03. 2011 also has appointed to it punishment in the form of imprisonment for a period of 2 years conditionally with restriction of freedom on one year. According to item 73 UK the Russian Federation the condemned has been obliged to be monthly on registration in UII and to extinguish a damage within a month after the introduction of a sentence into validity. According to item 53 UK the Russian Federation to it was recommended to be monthly on registration in
the specialised state body which is carrying out supervision of enduring the punishment in the form of restriction of freedom, not to change a constant residence without notice UII [69] . There are also other examples of similar sentences. We believe, that the given precedents represent errors in pravoprimenitelnoj activity. In UK the Russian Federation is underlined, that freedom restriction can be appointed as a punishment auxiliary view to forced hard labour or imprisonment (ch. 2 items 53 UK the Russian Federation). But, it agree ch. 2 items 49 Wick the Russian Federation, at appointment of restriction of freedom as a punishment auxiliary view, and also at replacement of not left part of punishment in the form of imprisonment by restriction of freedom term of restriction of freedom are estimated from the date of clearing condemned of correctional facility. Hence, simultaneous appointment of imprisonment is conditional also freedom restrictions (as additional punishment) is contradicting the legislation of the Russian Federation.

Whereas the restrictions imposed on condemned at appointment as restriction of freedom, and probation, are similar, we believe, that their simultaneous application is inexpedient. Such duplication of duties generates difficulties at execution of considered criminally-legal measures. However, as fairly marks E. Essential distinctions are available V.Kolbasova, between them. First, the list pravoogranicheny for the person to whom punishment in the form of freedom restriction is appointed, has imperative character, thus, the court cannot expand it, as at probation appointment. Secondly, the minimum trial period at probation constitutes 6 months, and the minimum duration of restriction of freedom as punishment principal view - 2 months [70] . Existence of that form in which now
probation is realised in practice, involves occurrence of a problem of a competition of restriction of freedom and probation to imprisonment.

So, P.V.Golodov notices, that in Russia conditions for increase of efficiency of functioning of criminally-executive inspections, and also for occurrence on their base of service probatsii [71] are created. Considering the given circumstance, and also having taken into consideration positive experience of the foreign states, some researchers offer their association.

In inspections there was a post of the psychologist, the correctional programs directed on behaviour of the condemned are developed and approved. Also allocation bolshego quantities of money resources on the maintenance of criminally-executive inspections, improvement of their material equipment [72] is observed.

the Term "probatsija" is considered as źthe institute accompanying conditional imprisonment or a delay of the taken out sentence, and also in connection with activity on execution of the punishments alternative to imprisonment╗.

the Maintenance probatsii constitutes supervision for condemned which is carried out by the authorised bodies. Performance of duties which are assigned to criminals is supervised. Besides supervision realisation, probatsija has the purpose the help in social adaptation and prevention. źprobatsija can be selected as a responsibility measure only in that case when the defendant will express readiness to obey
to the provided requirements, to observe all restrictions established by court╗ [73] .

At transition from institute "probation" and źfreedom restriction╗ to institute "probatsii" which is offered some domestic researchers, functions of the employees who are carrying out supervision of execution of punishment should exchange. At first sight, the given measure could be applied both as the core, and as additional punishment (including concerning minors). As a result of it expansion of the list of restrictions at the expense of connection of what are characteristic for freedom restriction, with what are inherent in probation would be expected. Thus possibility to reduce volume of restrictions concerning the corrected should be given. The given changes also could promote increase of efficiency of supervision of behaviour of those persons which were released from the places of confinement, realising problems of special prevention and conditioning for them resotsializatsii.

However as fairly marks E.N.Shatankova, probation and probatsija are independent nonidentical institutes. Probation represents default of the appointed punishment during a trial period. probatsija in some states, on the contrary, means specific performance of punishment without isolation condemned from a society [74] . The countries in which it is applied can be divided into three groups. In the first group of the states probatsija represents punishment (Latvia, Finland, Sweden), in
the second - concerns other measures of criminally-legal character (England, Denmark), in the third - is a kind of clearing from punishments (Estonia) [75] .

One of criteria of an effective criminally-executive policy is observance of the rights and freedom of criminals, and also them resotsializatsija. On the one hand, formation in Russia services probatsii, being based on rich positive experience of the foreign states, can affect positively social structure of a society. The ex-offenders, successfully passed rehabilitation, which become its high-grade representatives

have shown correction and definitive refusal of criminal behaviour. But, with bolshej probability it will entail a number of the negative phenomena. Occurrence of new service of execution of punishment will inevitably cause of the decision of a question of its structurization, and also modernisation of positions of the Criminal and Criminally-executive code. At the same time we believe, that functioning of this system can aggravate the problems connected with counteraction of corruption at its various levels. Expansion of the list of powers of employees of this service will promote increase in probability of fulfilment of corresponding offences.

Thus, there is a probability, that association and (or) replacement of institutes "probation" and źfreedom restriction╗ on institute probatsii can cause a number of complexities. Thus problems of increase of efficiency of punishment can remain unresolved. Supporters of such transformations expect occurrence of effectively working procedure (probatsii) which, combining signs of probation and freedom restriction, urged to eliminate them
lacks. But in practice the given modernisation can be shown to formal change of the name without essential change of the maintenance.

At refusal of idea of application of procedure probatsii it is necessary to consider the problem on increase in number of duties of the persons condemned to restriction of freedom. For this purpose it is necessary to be guided by a principle of differentiation of punishment, applying different approaches to condemned, showing correction, and to infringers. Besides it, it would be expedient to review the list of measures of encouragement and collecting for the persons, leaving considered punishment (about it is more detailed in chapter 3). Now pravoprimenitel can address only to a small amount of mechanisms of corrective influence on the persons who have violated the law. It complicates process of achievement of the purposes of punishment (correction of behaviour condemned and preventions).

Thus, reforming of criminally-executive system of the Russian Federation carried out now requires more effective mechanism of work of system of appointment and execution of punishment in the form of freedom restriction. The foreign experience reflected in the international legislation, regulating the system of penalties in the form of freedom restriction, can appear rather useful to increase of efficiency of execution of a considered measure.

Conclusions under the paragraph:

In foreign countries there are some variants of execution of punishment in the form of freedom restriction. In the states of the first group freedom restriction is left in specialised agencies (Byelorussia, Georgia, Republic Tajikistan). In the countries of the second group the freedom condemned to restriction serve time on a residence (Kazakhstan, Lithuania, Poland). In the third group there are states in which the mixed variant presented by the mechanism probatsii (the United Kingdom the Great Britain and Northern Ireland, Federal Republic Germany, Kingdom
Spain, the Latvian republic, Republic Moldova, the USA, the French Republic, Kingdom Sweden) functions.

Besides presented above the classification offered by some researchers, it is possible to classify the foreign states in which the measures similar to restriction of freedom are applied, on following bases:

1) presence (or absence) possibilities of attraction condemned to labour activity. Performance of works by persons by which the measures similar to restriction of freedom are appointed, is characteristic for legislations of Poland, Lithuania, Italy;

2) a regulation in positions of the criminal legislation of possibility of deportation of the criminal from the country (for example, France). On UK exclusion is considered Costa Rica the basic punishment. In the Peoples Republic of China dispatch of foreign subjects can be considered both as independent, and as the supplementary measure [76] ;

3) reference of some components of restriction of freedom not to punishments under criminal law, and to security measures (for example, Italy);

4) presence (or absence) possibilities of application of procedure probatsii. It is institute it is applied to England, the USA, France. The maintenance pravoogranicheny is close inherently to system pravoogranicheny the persons condemned to restriction of freedom or to conditional imprisonment in Russia.

Some researchers suggest to introduce in our country procedure probatsii, having excluded measures in the form of freedom and probation restriction to imprisonment. At transition from institute "probation" and źfreedom restriction╗ to institute "probatsii" functions of the employees who are carrying out supervision of persons, broken the law should exchange. As a result of application of the given measure
there would be an expansion of the list of restrictions at the expense of connection of what are characteristic for freedom restriction, to what are inherent in probation. It is thought, thus, possibility to reduce volume of restrictions concerning the corrected should be given. The given changes also could promote realisation of problems of special prevention and condition for resotsializatsii the persons who have violated the law. However it is impossible to forget about the various nature of restriction of freedom, probation and probatsii. We believe, that they cannot be considered as equivalent. Hence, offered above an innovation will inevitably entail complexities in pravoprimenitelnoj activity. Occurrence of new service of execution of punishment will inevitably cause of the decision of a question of its structurization, and also modernisation of positions of the Criminal and Criminally-executive code. At the same time we believe, that functioning of this system can aggravate the problems connected with counteraction of corruption at its various levels. Expansion of the list of powers of employees of this service will promote increase in probability of fulfilment of corresponding offences.

At refusal of idea of application of procedure probatsii it is necessary to consider the problem on increase in number of duties of the persons condemned to restriction of freedom. For this purpose it is necessary to be guided by a principle of differentiation of punishment, applying different approaches to condemned, showing correction, and to infringers. Besides it, it would be expedient to review the list of measures of encouragement and collecting for the persons, leaving considered punishment (about it is more detailed in chapter 3). Now pravoprimenitel can address only to a small amount of mechanisms of corrective influence on the persons who have violated the law. It complicates process of achievement of the purposes of punishment (correction of behaviour condemned and preventions).

Thus, reforming of criminally-executive system of the Russian Federation carried out now requires more effective mechanism of work of system of appointment and execution of punishment in the form of freedom restriction. Foreign experience can appear rather useful to increase of efficiency of execution of a considered measure.

1.3.

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A source: Hodzhaliev Saleh Ajsaevich. the Theory and practice of restriction of freedom as punishment kind. The dissertation on competition of a scientific degree of the master of laws. Grozny - 2019. 2019

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