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2.1. The Criminal sentencing in the form of arrest

Arrest as a punishment under criminal law kind is entered UK the Russian Federation since January, 1st, 1997, however, according to the Federal act «About introduction in action UgoYOlovnogo of the code of the Russian Federation» from June, 13th, 1996 (in edition FeYOderalnogo of the law from January, 10th, 2002 №4-ФЗ) positions UK the Russian Federations about punishment in the form of arrest are installed not later 2006 года143.

At the same time, of awarding punishment in the form of arrest already sushcheyostvujut problems as theoretical, so practical plan.

For example, the provincial court, enacting a sentence as the trial court, has appointed to two condemned on ch. 2 items 325 UK the Russian Federation arrest for a period of three months to everyone.

The full court on criminal cases of the Supreme Court of the Russian Federation at kassayotsionnom a legal investigation this punishment has replaced with six months isprayovitelnyh works in a place of work with deduction of 20 % of earnings, having specified, that court, awarding punishment in the form of arrest, has broken Federal act item 4 «About vveyodenii in action of the Criminal code of the Russian Federation», predusmatriyovajushchuju, that Criminal code positions about punishments in the form of obligatory works, freedom and arrest restriction are installed federal zakoyonom after coming into force of the Criminally-executive code of the Russian Federation in process of creation of necessary conditions for execution of these kinds

«144

Punishment.

About modification and additions in Federal acts «About vvedeyonii in action of the Criminal code of the Russian Federation» and «About introduction in action of the Criminally-executive code of the Russian Federation»: FZ the Russian Federation from January, 10th, 2002 №4//SZ the Russian Federation. - 2002. - №2. - item 130.

4 Definition № 9-097-94 on business Bratchikova and Agapov//the Bulletin of the Supreme Court of the Russian Federation. - 1998. - № P.-СЮ.

.. 66

And, it not a unique judgement similar рода145.

The analysis of theoretical researches, also, shows a number of problems of appointment of arrest.

So, the arrest consisting in the maintenance condemned in conditions stroyogoj of isolation from a society (ch. 1 item 54 UK the Russian Federation), is applied only as a punishment principal view (ch. 1 items 45 UK the Russian Federation).

The international pact about the civil and political rights from 16 dekabyorja in item 9 has fixed 1966, that «each person has the right to freedom and inviolability of person. Nobody can be subjected to any arrest or holding in custody. Nobody should be deprived of freedom differently as on such bases and according to such procedure which are statutory» 146.

Let's stop on a punishment under criminal law appointment procedure in a kind areyosta, regulated UK the Russian Federation.

According to ch. 1 items 60 UK the Russian Federation (awarding punishment General principles), the punishment, appointed to the person recognised guilty of fulfilment prestupyolenija should be fair. This position directly korrelirovanno with a justice principle (item 6 UK the Russian Federation) in criminal праве147.

CH. 1 item 6 UK the Russian Federation defines, that the punishment applied to the person, made prestupleyonie, should correspond to character and degree of the social danger of a crime, circumstances of its fulfilment and the person of the guilty.

As fairly marks ate Artamonov, «the justice principle for-is false in the maintenance of the right and is shown in its concrete branches» 148, including in criminal law. At the same time, the justice embodied in

145 See: Definition № 77-097-7 on business Alatkina//Bulletin VerhovYO nogo Vessels of the Russian Federation. - 1997. - № 12. - with. 9.

146 Criminal code of the Russian Federation with article by article materialayo mi / Under the editorship of V.M.Lebedev. - M, 2001. ' - With. 134.

147 Zvecharovsky I.E.Sovremennoe criminal law of Russia: concept, principles, a policy. - SPb., 2001. - with. 67.

148 Artamonovs E. About awarding punishment from justice positions//the Legal expert. - 2004. - № 1. - with. 36.

67 Criminal law, should find the reflexion, first of all, in sanctions criminally-rules of law the Special part. Designing sanctions, the legislator

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Should start with magnitude of offence. In this connection I.E.Zvecharov-sky approves, that the sanction is fair, if it:

Corresponds to weight of the crime described in a disposition;

It will be adjusted with the sanctions provided for fulfilment of other crimes;

Gives to court possibility to individualise responsibility and nakayo zanie with the account of all circumstances concrete criminal дела150.

The analysis of the criminal legislation shows, that arrest as a kind ugoyolovnogo punishments is fixed in sanctions criminally-rules of law, predusmatyorivajushchih responsibility for crimes of small and average weight. For fulfilment heavy and especially grave crimes arrest not назначается151. TaYOkoe position is represented to us quite fair. Thus prosmatri-vaetsja certain conformity of weight of arrest (appointed to term not boyolee six months) to character and social danger degree prestupleyony for which fulfilment it is provided. For example, careless crimes cannot be heavy and especially heavy (item 15 UK the Russian Federation).

It is necessary to notice, that in the legal literature the question about otvetstvenyonosti condemned to arrest for fulfilment heavy and especially heavy prestupleyony is considered unequally.

Some authors offer to enter a legislative interdiction for awarding punishment in the form of arrest for fulfilment heavy and especially heavy пре­ступлений152.

149 Tkachenko V. I. Awarding punishment General principles. - M, 1984. - With. 4. Zvecharovsky I.E.modern criminal law of Russia: concept, principles, a policy. - SPb., 2001. — with. 66.

151 See, also: Jakovlev V.V. The Criminally-legal characteristic of arrest (theoretical aspect): Diss.... kand. jurid. Sciences. - SPb., 1999. - with. 105.

Gorobtsov V. I. Punishment in the form of arrest as means of struggle with preyostupnostju / Actual problems ' crime control in Siberian re -

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Other authors, for example Polivtsev A. V, believe, that such interdiction izyolishen as arrest is not provided by sanctions criminally-rules of law about heavy and especially grave crimes.

Last point of view, in our opinion, sees poorly argumentiroyovannoj as such punishments as lifelong imprisonment and a death penalty also do not contain in sanctions of crimes small tjazheyosti, average weight and grave crimes, and in the item of item 57 and 59 UK the Russian Federation is directly specified, that the given kinds of punishments can be established only for especially grave crimes encroaching for a life.

At the same time, at introduction of a legislative interdiction for appointment areyosta for heavy and especially grave crimes possibility suyodov appointments of softer punishment will be limited, than is provided for given prestuyoplenija in the presence of exclusive circumstances (item 64 UK the Russian Federation). For this reason such interdiction will be excessive.

In total more than for hundred forty structures of crimes can be naznayocheno punishment in the form of arrest. So, arrest is provided for a number prestupleyony against a life and health (chapter 16 UK the Russian Federation). For example, for threat by murder or causing of heavy harm to health (item 119 UK the Russian Federation) the sanction predstavyolena in the form of restriction of freedom for the term up to two years, arrest for the term from chetyyoreh about six months or imprisonment for the term up to two years. Such sanction, in our opinion, is quite fair and there corresponds to weight described in a disposition of item 119 UK the Russian Federation crimes.

Combination of the designated kinds of punishments in sanctions of articles as, according to item 44 UK the Russian Federation, restriction svoyobody, arrest and imprisonment na.opredelyonnyj term are adjacent in is represented logical

gione. The collection of materials of scientifically-practical conference. CH. 1. — Red jarsk, 1999.-with. 22.> ':

Polivtsev A.V. arrest Legal regulation as punishment under criminal law kind: Diss.... kand. jurid. Sciences. - Rostov-on-Don, 2001. - With. 108.

69 their hierarchies comparative тяжести154. Between them it is located only nakayozanie in the form of the maintenance in the disciplinary military unit, applied isyokljuchitelno concerning military men.

At the same time, sanctions of such crimes as the murder made in a condition of affect (ch. 1 items 107 UK the Russian Federation), the murder made at prevysheyonii of limits of the justifiable defence or at excess of measures, the persons necessary for detention, committed a crime (item 108 UK the Russian Federation), on imprudence (item 109 UK the Russian Federation) and some other crimes of small and average weight do not provide death causing along with restriction svoyobody and imprisonment on the certain penal term in the form of arrest.

Such sanctions, in our opinion, are not fair as, first, do not provide such punishment corresponding to weight opiyosyvaemogo in a disposition of norm of socially dangerous act as arrest; secondly, will not be adjusted with sanctions of articles of other crimes (for example, item 119 UK the Russian Federation) and, thirdly, limit court possibility individualiziroyovat punishment with the account of all circumstances concrete criminal дела155.

Thus, considering the above-stated, it is offered to fix in sanctions of those articles, where possibility of application of punishment in the form of restriction of freedom and imprisonment for certain term (or maintenances in disciplinary military unit in crimes against voenyonoj services (section 11 UK the Russian Federation)), and such punishment as arrest is regulated.

73 % of respondents have agreed with such offer.

Besides, the analysis of the careless crimes provided OsoYObennoj by a part operating UK the Russian Federation, leads to a conclusion, that arrest is fixed in sanctions of all about ten criminally-rules of law about such crimes

See: the Comment to the Criminal code of the Russian Federation / Otv. red. And. V.Naumov. TH., 1996.-with. 141.

155 Necessity of strictly individual approach to appointment nakayozanija is underlined, for example, in the Decision of Plenum of the Supreme Court of the Russian Federation «About practice of appointment by punishment under criminal law vessels» from June, 11th, 1999 See: the Bulletin of the Supreme Court of the Russian Federation. - 1999. - № 8. - with. 2.

70 (for example, in ch. 1 items 118, item 224, ch. 1 items 263, ch. 1 items 264, ch. 1 items 293, ch. 3 items 332 UK the Russian Federation, etc.), at total of careless structures of the crimes, exceeding fifty. ":

The most widespread kind of punishment provided sankyotsijami of articles about careless crimes, imprisonment for certain term is. Though all careless socially dangerous acts javyoljajutsja crimes of small or average weight (item 15 UK the Russian Federation).

Thus many authors approve, that influence of threat of strict punishment for a careless crime on the person much more low, unlike that influence at deliberate crimes. In this connection, predyostavljaetsja unreasonable presence of such strict kinds of punishments as lisheyonie freedom for certain term in sanctions of articles about careless prestuyoplenijah. At least, alternativeness of the given sanctions for the inclusion account in nih'aresta should be expanded. "Shock" influence of arrest, in our opinion, at high level will be shown at its appointment for fulfilment of careless crimes. Therefore it is represented tselesoobyoraznym to provide arrest as a punishment under criminal law kind in bolshem kolicheyostve norms about careless crimes.

With reference to a question on a coordination of the certain sanction with the sanctions provided for fulfilment of other crimes as one of preconditions of justice of the sanction, some authors also come to conclusion about necessity of addition of some articles the sanction in the form of arrest. So, And. V.Polivtsev offers such addition in the sanction ch. 1 items 160 and ch. 1 items 117 UK the Russian Federation which it proves, first of all, the fact nesoglaso -

156 See, for example: Zolotov B.P.punishment for careless crimes (Legal and sociological aspects): the Author's abstract diss.... kand. jurid. nayouk. - M, 1980. — With. 11-12; Nersesjan V. A. Responsibility for careless preyostuplenija. - SPb., 2002. - with. 207.

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vannosti operating sanctions. In our opinion such offer javyoljaetsja quite natural.

V.V. JAkovlev suggests to include arrest in the sanction ch. 1 items 273 UK the Russian Federation (Creation, use and distribution of the harmful computer programs), giving reason for such step conformity of weight of described act in a disposition of its sanction named criminally-rule of law. At the same time, the author proves necessity of an exception on the same basis of arrest from the sanction of item 112 UK the Russian Federation (Deliberate causing of average weight of harm zdoyorovju), item 175 UK the Russian Federation (Acquisition or sale of the property obviously extracted criminal by) and item 176 UK the Russian Federation (Illegal reception of the credit).

If the expediency of expansion of sanctions of specified articles for the inclusion account in them of arrest by us is supported, with an arrest exception, in our opinion to agree to individualise punishment difficult as it essentially reduces vozyomozhnost vessels. Certainly, given problem will get an urgency not earlier than 2006

At the same time, during action UK 1996 arrest in sanctions of articles of the Special part already underwent the Russian Federation, changes. For example, Federal zako th Russian Federation «About modification and additions in the Criminal code of the Russian Federation» № 92-FZ from June, 25th, 1998 arrest is excluded from the sanction ch. 2 items 194 UK the Russian Federation (Evasion from payment of the customs payments levied from the organisation or the physical person) also it is included in the sanction ch. 1 items 198 UK the Russian Federation (Tax evasion and (or) gathering from the physical person). Arrest as a punishment kind has appeared in sanctions of item 199-1 UK the Russian Federation (Default of duties of the tax agent), ch. 2 items 115 UK the Russian Federation (Deliberate causing of easy harm to health

polivtsev A.V.legal regulation of arrest application as punishment under criminal law kind: the Author's abstract diss.... kand. jurid. Sciences. - Rostov-on-Don, 2001. - With. 21-22.

Jakovlev V.V. Ugolovno-pravovaja the arrest characteristic (teoreticheyosky aspect): Diss.... kand. jurid. Sciences. - SPb., 1999. - with. 107.

72 from hooligan promptings), ch. 2 items 116 UK the Russian Federation (the Beating from hooligan pobuyozhdeny), entered by the Federal act № 162-FZ from December, 8th, 2003 159.

Thus, justice of sanctions criminally-rules of law, at least, regarding presence in them of arrest, is some ideal, to koyotoromu the legislator by perfection of the Criminal code of the Russian Federation should aspire.

By justice principle should be guided and court at naznayochenii to the person who has committed a crime, punishment under criminal law. In particular, choosing from available in the sanction of article of punishments arrest, court is obliged uchity -

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vat positions of item 54 UK the Russian Federation. According to given article arrest, zakljuyochajushchijsja in the maintenance condemned in the conditions of strict isolation from obshchestyova, is not appointed to the persons who have not reached by the moment removal by court of a sentence shestnadtsatiletnego of age, and also to pregnant women and the women having children is elderly till fourteen years.

Attracts attention will lock on arrest appointment to pregnant women and the women having children about fourteen years are elderly. In our opinion, the given interdiction is excessive in a part. We will spend analoyogiju with punishment in the form of imprisonment. At awarding punishment in the form of imprisonment for certain term of such interdiction in the Criminal law (item 56) does not contain. From this follows, that to the pregnant woman and the woman having children about fourteen years are elderly, punishment under criminal law in the form of arrest (item 44 UK the Russian Federation) can be appointed nakazayonie in the form of imprisonment which is more strict, than. Thus condemned to deprivation svoyobody women can place in children's homes correctional facilities of children aged till three years (ch. 1 items 100 Wick the Russian Federation). After achievement reyobyonkom three-year age it is transferred to relatives or other persons, or goes to corresponding child care centre (ch. 2 items 100 Wick the Russian Federation).

The Russian newspaper. - on December, 16th, 2003.

73 From the aforesaid follows, that as condemned to arrest soder -

It was reaped in the conditions of strict izoljatsy from a society the inexpedient will appoint arrest to pregnant women and the women having children in vozrasyote till three years. To appointment of arrest to the women having children is more senior tryohyoletnego age, interferes nothing.

Besides, it is not necessary to forget, that concerning the condemned women having children aged is more senior three years, at judicial discretion, such basis of clearing of punishment as its delay otbyyovanija (item 82 UK the Russian Federation) can be applied.

The enduring the punishment delay to pregnant women and the women, having juvenile children, proceeding from sense of item 82 UK the Russian Federation, cannot primeyonjatsja only to the named women condemned to imprisonment for term over five years for heavy and especially grave crimes against the person.

Arrest is not provided for heavy and especially grave crimes. And possibility of appointment to women of arrest also would give to court bolyoshy potential for a punishment individualization. Really, the court could appoint in many cases arrest instead of imprisonment to certain term and, if necessary, to delay real enduring the punishment to dosyotizhenija the child chetyrnadtsatiletnego age.

Analyzing restrictions at the arrest appointment, containing in ch. 2 items 54 UK the Russian Federation, are fairly noticed in the legal literature, that «they spoyosobny to worsen position of the specified category condemned» 160.

Thus, it is represented quite proved to change an interdiction for awarding punishment in the form of arrest to pregnant women and the women having children about fourteen years, containing in ch are elderly. 2 items 54 UK

Miljukov S. F. The Russian criminal legislation: experience kritiyocheskogo the analysis. - SPb., 2000.-With. 180; the Practical comment to UgolovYOnomu to the code of the Russian Federation / Under obshch. red. X. D.Alikperova and E.F.Pobegajlo. - M, 2001. - With. 54, 55; Starkov O. V, Miljukov S. F. Punishment: criminally-legal and kriminopenologichesky the analysis. - SPb., 2001. — with. 50.

• 74 Russian Federations, having forbidden to appoint arrest to exclusively pregnant women and zhenshchiyonam, having children are elderly till three years.

It is necessary to notice, that the given offer has supported 65 % respondenyotov.

At the same time, it is quite fair, that item 54 UK the Russian Federation does not forbid naznayochat arrest to invalid persons. Really, condemned to arrest soyoderzhatsja in the conditions of strict isolation from a society also can be involved only in works on economic service of lock-up prodolzhiyotelnostju no more than four hours per week (item 70 URZH the Russian Federation). Arrest can be appointed and военнослужащим161. Besides, in the Criminal law not oboyoznachaetsja the top physical limit for awarding punishment in the form of arrest. The given positions possibility of application of arrest, unlike such adjacent punishments on severity as essentially increases freedom restriction (item 53 UK the Russian Federation), correctional labour (item 50 UK the Russian Federation), obligatory works (item 49 UK the Russian Federation).

Arrest has certain specificity at its appointment voennosluzhayoshchim. In ch. 3 items 54 UK the Russian Federation are reserved, that unlike civilians, voyoennosluzhashchie leave arrest as a punishment under criminal law kind on a guardroom. The military men condemned to arrest, do not leave from military service that is additional stimulus for them исправления162.

Besides the account of a principle of justice, at appointment to the person, soveryoshivshemu a crime, punishments in the form of arrest, the court should rukovodstvovatyosja the general principles of awarding punishment regulated by item 60 UK the Russian Federation. According to named article UK, it is necessary to consider following positions:

- First, the court is obliged to appoint punishment within the sanction of norm of the Special part of the Criminal code;

161 Stanovsky n. - SPb., 1999. - with. 110-111.

162 See: Jakovlev V.V. The Criminally-legal characteristic of arrest (teoreyo tichesky aspect): Diss.... kand. jurid. Sciences. - SPb., 1999. - with. 139.

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- Secondly, the court should take into consideration positions of the General part of the Criminal code;

- Thirdly, the court should consider character and degree of the social danger of a crime;

- In the fourth, it is necessary for court to be guided by characteristics of the person of the guilty;

- In the fifth, the court is obliged to consider the circumstances softening and aggravating punishment;? '.

- In the sixth, the court should take into consideration influence appointed nakayozanija on correction condemned and on conditions of a life of his family.

Awarding punishment within the sanction criminally-rule of law OsoYObennoj the court should pay attention of a part to kinds available in the sanction nayokazany the basic and additional.

Arrest, it agree ch. 1 item 45 UK the Russian Federation, is a punishment principal view. The court, choosing at own discretion the basic punishment in the form of arrest, is obliged to recognise that less strict kind of punishment, for example, freedom restriction, restriction on military service, correctional labour, etc., cannot provide achievement of the purposes of punishment. That is, restoration sotsiyoalnoj justice, correction condemned and the prevention soversheyonija new crimes (ch. 2 items 43 UK the Russian Federation) can be carried out, in that case, only by the short-term maintenance guilty of conditions stroyogoj isolation from a society. So-called "shock" influence by arrest, in our opinion, is really capable to reach the specified purposes, at the same time, not tearing off condemned from a society for long time.

On the basis ch. 1 item 54 UK the Russian Federation arrest can be appointed for the term from odyonogo about six months. At the same time, sanctions of articles of Special part UK the Russian Federation establish concrete terms of arrest. So, for infringement neprikosnovennoyosti a private life (item 137 UK the Russian Federation) on ch. 1 arrest for the term up to four months can be appointed. The minimum term of arrest in this case cannot be, under the general rule, less than one month. For the qualified kind naru -

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shenija inviolability of a private life (ch. 2 items 137 UK the Russian Federation) arrest can be appointed for the term from four about six months.

Fall outside the limits the sizes of the punishments regulated by the sanction of article of the Special part, towards their increase pravoprimenitel in the person suyoda can only in case of awarding punishment under cumulative offences or cumulative sentences (ch. 2 items 60 UK the Russian Federation) as item 69 item, 70 UK the Russian Federation.

At awarding punishment under cumulative offences for which arrest is provided and at a choice of the given kind of punishment the court appoints definitive punishment by absorption of less strict by more strict or by partial or full addition (ch. 2 items 69 UK the Russian Federation), as if for the committed crimes arrest from this follows is provided, that the given crimes of small or average weight. We will remind, that arrest is provided by sanctions criminally-rules of law about crimes neyobolshoj or average weight.

At the same time, according to ch. 2 items 69 UK the Russian Federation, definitive nakazayonie more than on half maximum term of arrest, in that case, cannot exceed. For example, making on set two episodes of infringement nepri-kosnovennosti a private life on ch. 1 item 137 UK can constitute the Russian Federation, the maximum term of arrest six months. The same maximum term of arrest will be and in case of awarding punishment on set of the qualified kinds nayorushenija inviolability of a private life (ch. 2 items 137 UK the Russian Federation).

From the given example the conclusion follows, that at awarding punishment in the form of arrest under cumulative offences in one cases punishment will be more term provided by the sanction of article, in others - is not beyond the sanction of article of the Special part.

The similar order of appointment of arrest is regulated and for situations nayoznachenija punishments under cumulative sentences (item 70 UK the Russian Federation). Appointing nayokazanie in the form of arrest on cumulative sentences, court should completely or

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Partially to attach to the punishment appointed on last sentence

77 vessels not left part of punishment on the previous sentence of court (ch. 1 items 70 UK the Russian Federation).

Besides, in ch. 4 items 70 UK the Russian Federation are underlined, that definitive punishment under cumulative sentences should be more as the punishment appointed for again committed crime, and not left part of punishment on preyodydushchemu to a court sentence. Punishment absorption at its appointment on sovoyokupnosti sentences is not provided by the Criminal law.

At the same time, To. V.Obrazhiev pays attention to that fact, that «predyopisanija ch.ch. 1 and 4 items 70 UK concerning partial or full prisoeyodinenija punishments« do not work the Russian Federation "in some cases" 163. The given statement is represented to us fair and it shows the following example.

So, the person who is serving time in the form of arrest again makes prestuyoplenie. We will assume, that not left part of arrest constitutes five months. ruyokovodstvujas item 70 UK the Russian Federation, court should appoint punishment under cumulative sentences and in case for again committed crime the court appoints arrest for five months, definitive punishment in the form of arrest, in sootvetstyovii with ch. 1 items 54, ch. 2 items 70 UK the Russian Federation, cannot exceed six months., that «fulfilment of a new crime in serving nakazayonija as a result turns out, as a matter of fact, becomes the circumstance commuting punishment for earlier soyovershyonnoe a crime» 164. If to admit, that for again committed crime punishment in the form of arrest for a period of six mesjayotsev there is a fulfilment of a new crime will be appointed will be obstojatelstyovom, releasing from the punishment appointed on the previous sentence vessels. And this situation becomes even more absurd.

In connection with stated, we adhere to the points of view of those authors, koyotorye suggest to bring in item 70 UK the Russian Federation changes which legislatively would settle a question on possibility of appointment of definitive punishment

Obrazhiev K.V.problem of cumulative sentences in criminal prayove. - Stavropol, 2003. - With. 33. 164 There zhe.-with. 36.

78 under cumulative sentences, if it less strict, than imprisonment, and by full absorption by the punishment appointed on last sentence vessels, neotbytogo on the previous sentence суда165.

At arrest appointment under cumulative offences and cumulative sentences the court can face necessity of recalculation of one kinds of punishments for others when are appointed for the committed crimes razlichyonye principal views of punishments. For example, if will take place sovokupyonost threats by murder or causing of heavy harm to health (item 119 UK the Russian Federation) for which punishment in the form of restriction of freedom on term is appointed one year, and deliberate causing of easy harm to health from hooligan pobuzhyodeny (ch. 2 items 115 UK the Russian Federation) for which in the form of arrest punishment is appointed to term four months definitive punishment as on a data set of crimes, and sovokupnostt'prigovorov, taken out for their fulfilment, will demand recalculation of one punishment in another.

The criminal law does not contain direct instructions about what nakazayonie is necessary for counting: appointed for the first crime or the second; more strict punishment in less strict or on the contrary.

Under the fair remark To. V.Obrazhieva (with reference to sovoyokupnosti sentences), less severe punishment should be translated in boyolee severe as unfair replacement naznayochennogo punishments differently will follow earlier, at cumulative sentences, on softer вид166. PeYOrevodja arrest in freedom restriction at definition definitive nakazayonija the court thus will commute a penalty for earlier committed crime.

Practically similar situation will be and in case of appointment nakazayonija under cumulative offences: recalculation more strictly in less strict will entail punishments, in our opinion, unreasonable decrease criminally -

165 See: CHernenko T.G.pluralit of crimes on the Russian criminal law: Diss.... Doctors jurid. Sciences. — Kemerovo, 2001. — With. 281-282; Obrazhiev K.V.decree. soch. - with. 39:.

16 Obrazhiev K.V.problem of cumulative sentences in criminal prayove. - Stavropol, 2003. - With. 40.

79 legal estimations of criminal action for which more strict punishment has been appointed.

From the above-stated the conclusion about necessity of a summer residence sootvetstyovujushchego explanations on the given question the Supreme Court of the Russian Federation follows.

According to ch. 1 item 71 UK the Russian Federation, at awarding punishment by chasyotichnogo or full addition under cumulative offences and cumulative sentences corresponds to one day of arrest:

- Two days of restriction of freedom;

- Three days of correctional labour or restriction on military service;

- Eight hours of obligatory works.

. At arrest recalculation in more strict kinds of punishments one day of arrest corresponds to one day of the maintenance in disciplinary military unit or to one day of imprisonment.

At addition of arrest with the penalty, the debaring to occupy opredelyonyonye posts or to be engaged in certain activity or deprivation special, military or an honorary title, a class rank and gosudarstyovennyh awards the last are executed independently (ch. 2 items 71 UK the Russian Federation).

Additional kinds of punishments can be attached to arrest as to a punishment principal view at its appointment on sovokupyonosti crimes or cumulative sentences in the form of the penalty, debaring to occupy opyoredelyonnye posts or to be engaged in certain activity or liyoshenija special, military or an honorary title, a class rank and gosuyodarstvennyh awards. Thus definitive additional punishment at partial or their full addition cannot exceed the maximum term or the size provided for the given kind of punishment by the General part of the Criminal code (ch. 4 items 69, ch. 5 items 70 UK the Russian Federation).

So, Plenum of the Supreme Court of the Russian Federation in the decision № 40 from June, 11th, 1999 «About practice of appointment by punishment under criminal law vessels» spetsiyoalno has underlined, that «the additional punishment not left on the previous sentence can join the core appointed on set

80 sentences, only as the supplementary measure of punishment or skladyyovatsja with the additional punishment of the same kind appointed on a new sentence within established by corresponding articles of General part UK the Russian Federation of terms for the given kind of punishment »167.

According to item 72 UK the Russian Federation, arrest term is estimated in months and years, and at replacement of punishments and offset of punishments arrest terms can be estimated in days. Time of holding in custody before proceeding is set off in time arrest from calculation one day for one day.

To appoint arrest to term smaller, than it is provided by the sanction, or nayoznachit arrest when it is not provided by the sanction corresponding stayoti Special part UK the Russian Federation court can on the basis of item 64 UK the Russian Federation (ch. 2 items.60 UKRF).

According to item 64 UK the Russian Federation, in the presence of exclusive obstojayotelstv, connected with the purposes and motives of a crime, a role guilty, its behaviour during time or after committing a crime, and others obstojayotelstv, essentially reducing social danger degree prestuyoplenija, and it is equal with active assistance of the participant of a group crime to disclosing of this crime punishment can be appointed below the lowest

The limit provided by corresponding article of Special part UK the Russian Federation,

*. Or the court can appoint softer kind of punishment, than is provided by this

Article.

For example, according to the sanction ch. 1 item 171 UK the Russian Federation, for illegal predpriyonimatelstvo can be appointed punishment in the form of arrest for the term from chetyyoryoh about six months. At an establishment court of the specified exclusive circumstances, court, being guided by item 64 UK the Russian Federation, can appoint punishment in the form of arrest to term of less than four months. And, as it is explained in item 8 of the Decision of Plenum of the Supreme Court of the Russian Federation «About practice of application by punishment under criminal law vessels» from June, 11th, 1999 № 40, to such decision «not prepjatstyovuet presence in the sanction of same article of alternative softer kinds on -

167 Bulletin of the Supreme Court of the Russian Federation. - 1999. - № 8. - with. 7.

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168 і '

kazany ». So, the sanction ch. 1 item 171 UK the Russian Federation besides punishment in the form of arrest provides the penalty (as a punishment principal view) and obligatory works.

At the same time, decrease in the minimum term of arrest as item 64 UK the Russian Federation has strictly certain borders. Punishment should not be more low preyodela, provided by corresponding article of General part UK the Russian Federation. For arrest, according to ch. 1 items 54 UK the Russian Federation, it constitutes one month. Given

169

Position is regulated by the above-named decision, and also under -

170

tverzhdaetsja the developed judiciary practice.

CH. 1 item 64 UK the Russian Federation also allows to appoint arrest and in cases when it is not provided by the sanction of concrete article of Special part UK the Russian Federation. Thus there should be such: exclusive circumstances which «would testify that the punishment provided for given preyostuplenie, concerning concrete guilty is unfair because of excessive severity» 171.

Operating edition of item 65 UK the Russian Federation does not provide awarding punishment possibility at the verdict of the jury of assessors about indulgence of punishment outside the limits of the sanction of corresponding article of Special part UK the Russian Federation, behind an exception not application under such circumstance of a death penalty or lifelong imprisonment.

As follows from ch. 1 items 60 UK the Russian Federation, appointing the person who has made prestupyolenie, punishment in the form of arrest the court should consider positions of the General part of the Criminal code of the Russian Federation. It is necessary to carry to number of those:

1) general provisions on problems UK and on the punishment purposes (item 2, ch. 2 items 43 UK the Russian Federation);

Judiciary practice to the Criminal code of the Russian Federation / Under. red. V.M.Lebedev. - M, 2001. - With. 233. 169 There zhe.-with. 233. 170 Bulletin. The Supreme Court of the Russian Federation. - 1998. - № 4. - with. 16.

171

Criminal law of Russia. Parts the General and Especial / M.P.Zhuravlyov, A.V.Naumov, etc. - M, 2004. - With. 219.

: 82

2) instructions of the norm devoted to general principles of awarding punishment (item 60 UK the Russian Federation);

3) lists of circumstances softening and aggravating punishment (the item of item 61-63 UK the Russian Federation); **

4) rules of appointment of arrest (item 54 UK the Russian Federation);

5) the norms regulating a special order of awarding punishment (the item item 64,65УКРФ);

6) the norms regulating features of awarding punishment for neokonyochennoe a crime, for a crime made in partnership and at retsidiyove of crimes (the item of item 66-68 UK the Russian Federation);

7) awarding punishment rules under cumulative offences and prigoyovorov (item 69 item, 70 UK the Russian Federation);

8) the norms regulating an order of definition of penal terms at cumulative sentence, calculation of terms of punishments and offset of punishments (item 71 item, 72 UK the Russian Federation) 172. t*.

Let's consider the specified positions.

The account at appointment of arrest of item 2 and ch. 2 items 43 UK the Russian Federation are shown in obosyonovanii arrest elections as kind of punishment under criminal law by that danyonyj the punishment kind will allow to restore social justice, isprayovit condemned and will bring the contribution to the prevention of crimes.

As item 60 is located in the General part of the Criminal code of the Russian Federation, that, needless to say, should be considered also at awarding punishment.

Necessity of the account is obvious at appointment of arrest of the circumstances softening and aggravating punishment (the item of item 61-63 UK the Russian Federation), but the given question is taken out in the separate general beginning of awarding punishment (ch. 3 items 60 UK the Russian Federation), therefore it will be considered more low. Rules of appointment of arrest, reglamentirovanyonye item 54 UK the Russian Federation, also as well as the norms regulating a special order naznache -

1 THAT

Not remembering T.Uchyot vessels of general principles of awarding punishment//UgoYOlovnoe the right. - 2001. - № 3. - with. 29.:

83 nija punishments below the lowest limit and at the verdict of the jury of assessors about indulgence (item 64 item, 65 UK the Russian Federations) us are opened above.

At arrest appointment for the neoterminated crime (item 66 UK the Russian Federation), a crime made in partnership (item 67 UK the Russian Federation) and at relapse prestuyopleny (item 68 UK the Russian Federations) are available some features.

Appointing arrest for the neoterminated crime, court should consider the following. First, circumstances in which force the crime has not been finished (ch. 1 items 66 UK the Russian Federation). Secondly, arrest cannot be naznayochen for mere preparation as the given kind of punishment preduyosmatrivaetsja in Special part UK the Russian Federation only for crimes of small and average weight, and the criminal liability comes exclusively for preparation for heavy and especially heavy crimes (ch. 2 items 30 UK the Russian Federation). Thirdly, appointing arrest for attempted crime, term of analyzed punishment cannot exceed three quarters of the maximum term of the arrest provided by corresponding article of Special part UK the Russian Federation for okonyochennoe a crime if arrest is the most strict kind of punishment in the sanction.

For example, arrest is the most strict kind of punishment in the sanction of the basic structure of illegal business (ch. 1 items 171 UK the Russian Federation). In case of fulfilment of attempt at the given crime arrest can be nayoznachen, according to ch. 3 items 66 UK the Russian Federation, for term no more than four with poloyovinoj month.

At the same time, there is a question, and whether can appoint court in data sluyochae arrest to term four and a half a month? According to ch. 1 item 72 UK the Russian Federation, arrest term is estimated in months, arrest calculation in days probably only at replacement, addition or offset of punishments (ch. 2 items 72 UK the Russian Federation) which in such siyotuatsii do not occur.

Thus, proceeding from the letter of the law, in similar cases arrest dolyozhen to be appointed to term no more than four months, that is, to be estimated only in months.

84 Such position does not contradict ch. 3 items 66 UK the Russian Federation, but, at the same time, unfairly decrease a possible top limit of punishment. DejstvitelYOno, the neoterminated crime far not always testifies about sravniyotelno the smaller social danger of the person who have committed a crime,

173

Or the act made by it. Therefore it is represented expedient izyomenit ch. 2 items 72 UK the Russian Federation so, what the given norm would provide vozyomozhnost arrest calculations in days and in case of its appointment at ogranicheniyojah, provided ch. 3 items 66 UK the Russian Federation.

With the given statement has agreed 81 % interrogated.

At arrest appointment for the neoterminated crime when arrest not jav-ljaetsja the most strict kind of punishment in the sanction of corresponding article of Special part UK the Russian Federation, the court is not limited to possibility of appointment of the maximum term of the arrest provided by the sanction, and only considers circumstances in which force the crime has not been finished (ch. 1 items 66 UK the Russian Federation).

Appointing arrest for a crime made in partnership, court is obliged to consider character and degree of actual participation of the person in its fulfilment, value is participations for achievement of the aim of crime, its influence on harakyoter and ' the size of the caused or possible harm (ch. 1 items 67 UK the Russian Federation). What or restrictions for arrest appointment in this case the Criminal law does not provide.

* .

Arrest can be appointed at relapse of crimes. CH. 1 item 18 UK the Russian Federation defines relapse as fulfilment of a deliberate crime by the person having a previous conviction for earlier committed deliberate crime. At nayoznachenii arrest simple relapse (ch can take place only. 1 items 18 UK the Russian Federation). Dangerous and expecially dangerous relapse does not admit at fulfilment prestuyopleny average to weight (ch.ch. 2, 3 items 18 UK the Russian Federation), and previous convictions for deliberate crimes of small weight are not considered at all (the item "and" ch. 4 items 18 UK

Criminal law. The general part / Otv. red. I.J.Kozachenko, Z.A.nezna., 1998.-with. 395.

85 Russian Federations). Earlier we specified that arrest is provided in articles of Special part UK the Russian Federation exclusively for crimes small or sredyonej weights.

CH. 1 items 68 UK the Russian Federation defining rules of awarding punishment at reyotsidive of crimes, fixes, that at awarding punishment at relapse of crimes character and degree of the social danger before perfect crimes, circumstances in which force corrective influence of the previous punishment has appeared insufficient, and also harakyoter and degree of the social danger of again committed crime are considered. KroYOme that, the penal term at any kind of relapse of crimes cannot be less the one third part of the maximum term of the most strict kind nakayozanija, provided for the committed crime, but within the sanction of corresponding article of Special part UK the Russian Federation (ch. 2 items 68 UK the Russian Federation).

Thus, appoint arrest at relapse of crimes court can only in the event that arrest is the most strict punishment, preduyosmotrennym for the committed crime. Arrest term in such situation cannot be less the one third part of the maximum term of arrest, preduyosmotrennogo the sanction concrete criminally-rule of law Special part UK the Russian Federation.

For example, for fulfilment of not qualified infringement of the author's and adjacent rights (ch. 1 item 146 UK the Russian Federation) the maximum punishment is provided in the form of arrest for the term up to six months. If the person makes given prestupyolenie and it forms relapse the court should appoint punishment in the form of arrest to term not less than two months.

At the same time, if for a certain crime the most strict punishment in the form of arrest for the term up to four months (napriyomer, item 155 UK the Russian Federation «Disclosure of secret of adoption (udocherenija)) arrest should be appointed to term not less than one month and the one third part from a month is provided. And again (as well as in case of arrest appointment for attempt on prestuple -

86 nie) becomes the question on calculation of term of arrest, is more exact about possibility of its calculation in months and days which is not provided item 72 UK the Russian Federation.

The rule about necessity of appointment of the most strict kind of punishment for the term of not less one third from its maximum term at relapse preyostupleny can be not applied, if the court establishes the circumstances commuting punishment (item 61 UJURF). Moreover, at presence iskljuchitelyonyh the circumstances provided by item 64 UK the Russian Federation (awarding punishment below the lowest limit), can be appointed even softer punishment, than is provided for the given crime (ch. 3 items 68 UK the Russian Federation).

From among positions of General part UK the Russian Federation, coming under to the account at naznayochenii arrest (in sense ch. 1 items 60 UK. The Russian Federation), all of us above-named rassmotreyony. Appointment rules nakazanija.po cumulative offences and sovokupyonosti sentences (item 69 item, 70 UK the Russian Federation), and also the norms regulating an order of definition of penal terms at cumulative sentence, calculation of terms nayokazany and offset of punishments (item 71 item, 72 UK the Russian Federation), have been analysed by us primenitelno to such general beginning of awarding punishment as a court duty to award punishment within the sanction of norm of Special part UK the Russian Federation.

The following general beginning of awarding punishment obliges court at nayoznachenii arrest to consider character and social danger degree preyostuplenija (ch. 3 items 60 UK the Russian Federation).

The criminal law theory admits, that character public opasyonosti crimes is its qualitative characteristic, and degree obshchestyovennoj dangers - количественная174.

According to item 1 of the Decision of Plenum of the Supreme Court of Rossijyosky Federation «About practice of appointment by punishment under criminal law vessels» from June, 11th, 1999 № 40, character of the social danger of a crime opredeljayoetsja its object, the form of fault and reference by the Criminal code prestup -

See, for example: Kuznetsova N.F.crime and criminality. - M, 1969.-with. 69, 70.

87 nogo acts to corresponding category of crimes (item 15 UK the Russian Federation). SteYOpen the crime social danger depends from:

- Degrees of realisation of criminal intent;

- Way of committing a crime;

- The size of harm or weight of the come consequences;

- Roles of the defendant at committing a crime in partnership;

- And other circumstances содеянного175.

On character of the social danger, as a rule, differ among themselves crimes (for example, murder and theft) and already in it the legislator puts in pawn the differentiated approach for fixing a sentence with the account ha-raktera the social danger of a crime by designing razyolichnyh sanctions for nonidentical crimes.

In bolshej to a part on judicial discretion remains, in our opinion, voyopros about the account of degree of the social danger of act at appointment nakazayonija. As fairly marks V.I.Tkachenko, «for different, but legally tozhyodestvennye crimes, can be appointed excellent from each other by the form and to the size of punishment, as acts, as a rule, neodinakovy on social danger degree. For the account of last in sanctions wide enough range in the sizes of punishment is established and some kinds of punishments» 17 are provided in many cases.

The fourth general beginning of awarding punishment which are coming under to the account by court at appointment of arrest is a person guilty (ch. 3 items 60 UK the Russian Federation). In UgolovYOnom the law does not reveal which signs of the person should uchityyovatsja court at awarding punishment.

At the same time, it is necessary to agree with T. Not remembering, that «only preyodelno the full and wide account of data about the person will allow to appoint spra -

175 Bulletin of the Supreme Court of the Russian Federation. - 1999. - № 8. - with. 2.

176 Tkachenko V. I. Awarding punishment General principles. - M, 1984. — With. 12-13.

88 vedlivoe punishment to the guilty person »177. To number of the personal characteristics considered by court at awarding punishment, it is necessary to carry sledujuyoshchie signs:

- Is social-demographic (a sex, age, the marital status, obrayozovanie, профессия* official position, etc.);

- Criminally-legal (previous conviction presence);

- Psychophysiological (a state of health, features of character,

17R

Temperament).

The following general beginning of awarding punishment orders to vessels to consider the circumstances softening and aggravating punishment (ch. 3 items 60 UK the Russian Federation). L.L.Kruglikov and And. V.Vasilevsky is classified by the circumstances softening and aggravating punishment on:

A »I.

«1) characterising degree of the social danger of a crime and the person, and shown in a crime;

2) characterising the person not in connection with a crime, which

17Q

Influence or do not influence degree of the social danger of the person ».

From the told follows, that the given circumstances as a whole concern character and degree of the social danger of a crime and the person vinovyonogo. However the legislator has considered necessary to fix such circumstances in item 61 and item 63 UK the Russian Federation and has obliged courts to consider them at awarding punishment.

At the same time, in the Criminal law are not regulated any kriyoterii awardings punishment in the presence of the circumstances softening or otjagyochajushchih punishment. An exception constitute: an appearance with guilty, active spo -

d »і.

sobstvovanie to crime disclosing, exposure of other accomplices of a crime and search of the property extracted as a result of a crime, (the item

1 77

Not remembering T.Uchyot vessels of general principles of awarding punishment//UgoYOlovnoe the right. — 2001. — № 3. — with. 31.

1 7R

See: In the same place. — with. 31; Salpagarov M. U. Appointment General principles nakayozanija//Works of faculty of law of the Stavropol state university. Release. 2. - Stavropol, 2003. - With. 150.

Kruglikov L.L., Vasilevsky A.V.differentiation of responsibility in criminal law. - SPb., 2002. - with. 142.

89 "and" ch. 1 items 61 UK the Russian Federation) and rendering of medical and other help to the victim is direct after committing a crime, voluntary compensation of a property damage and the moral harm, caused as a result preyostuplenija, other actions directed on smoothing down of harm, caused to the victim, (the item "to" ch. 1 items 61 UK the Russian Federation). According to item 62 UK the Russian Federation, in the presence of the named circumstances and absence of aggravating circumstances term or the size of punishment cannot exceed three quarters of the maximum term or the size of the most strict kind of the punishment provided sootyovetstvujushchej by article of Special part UK the Russian Federation.

Thus, at appointment of arrest with the account of positions of item 62 UK the Russian Federations operate the same restrictions, as well as at arrest appointment for attempted crime (ch. 3 items 66 UK the Russian Federation) — arrest term (provided that it is the most strict kind of punishment in concrete criminally-rule of law) cannot exceed three quarters of the maximum term of arrest, predusmotrenyonogo the sanction.

L »

Last general beginning of awarding punishment and rather actual at awarding punishment in the form of arrest is an influence of the appointed punishment on correction condemned and on conditions of a life of his family (ch. 3 items 60 UK the Russian Federation). Item 3 of the Decision of Plenum of the Supreme Court of the Russian Federation «About practice nayoznachenija punishment under criminal law vessels» from June, 11th, 1999 № to 40 vessels predpiyosyvaetsja «to find out, whether is the defendant the unique supporter in seyome, whether there are on its expense minor children, aged parents, and also whether there were the facts testifying to its negative behaviour in a family (drunkenness, cruel treatment with members of a family, otritsayotelnoe influence on education of children, etc.)» 180.

Really, if the court selects punishment under criminal law in arrest, zaklju-chajushchemsja in strict isolation condemned from a society, the person more or less long time cannot communicate with a family, help it, take part in education of children. At the same time, awarding punishment in vi -

180 Bulletin of the Supreme Court of the Russian Federation. - 1999. - № 8. - with. 3.

90 de arrest to the person negatively characterised, it can favorably affect both on the terms of his family life, and correction most osuzhyodyonnogo.

Thus, awarding punishment general principles (item 60 UK the Russian Federation) objayozyvajut courts at appointment to the person who has committed a crime, punishments in the form of arrest to consider a wide range objective and subjective obstojayotelstv concerning questions of an individualization of punishment concerning the concrete person. As a whole the general ': the awarding punishment beginnings allow to apply in full volume them and to arrest appointment, debatable javljajutyosja only some special rules of awarding punishment which can be applied to arrest.

Attracts attention inadmissibility of probation to areyostu as it follows from the text ch. 1 items 73 UK the Russian Federation. According to named criminally-rule of law, freedom restriction, the maintenance in disciplinary military unit or imprisonment for the term up to 8 years without reyoalnogo endurings the punishment can be conditionally appointed corrective rayoboty, restriction on military service. Having analysed item 44 UK the Russian Federation, it is possible to come to conclusion, that the listed kinds of punishments are included in ch. 1 items 73 UK the Russian Federation by a principle of their comparative severity, since correctional labour and, zayokanchivaja imprisonment for certain term. Arrest "drops out" of the given group osnovyonyh kinds of punishments only. There is a question why zakoyonodatel does not give possibility to court to recognise the appointed punishment in the form of arrest conditional?

V.V. JAkovlev answers this question the reference that «the persons which correction nevozyomozhno without enduring the punishment» or «will be necessary that« shock »vozyodejstvie which marks a number of modern writers» 181 will be sentenced to data nayokazaniju more often. However on the basis of what the given author does a conclusion that arrest, in most cases, will be

Jakovlev V.V. Ugolovno-nravovaja the arrest characteristic (teoreticheyosky aspect): Diss.... kand. jurid. Sciences. - SPb., 1999. - with. 100.

* ': 91

To be appointed to the persons which correction is impossible without real enduring the punishment, not absolutely clearly. Necessity of "shock" influence, on nayo shemu to opinion, far will be not always unique correct variyo antom criminally-legal influence on the person recognised guilty of soya holding court of a crime. '-. ' •.

And. V.Polivtsev, on the contrary, supports expediency zakonodayotelnogo fastenings of possibility, arrest appointment conditionally. It obosnovyyovaet the position recommendations of application of probation only for the crimes characterised by low character and degree obshchestyovennoj of danger, (arrest is provided for crimes of small or average weight) at restrictions ': probation possibilities for pre-stuplenija heavy and especially heavy.

Really, Russian criminal legislation allows priyomenjat to vessels probation for heavy and especially grave crimes, as, according to ch. 1 item 73 UK the Russian Federation, can be conditionally appointed nakazayonie in the form of imprisonment for the term up to 8 years. At the same time, to recognise naznachenyonoe punishment in the form of arrest conditional it is not supposed, though arrest predusmatriyovaetsja as it was already underlined, only for crimes of small and average weight.

It is necessary to agree with And. V.Polivtsevym what more reasonably to apply probation to the persons who have committed crimes the small

183

Or average weight. * '.

It is possible to assume, that the legislator has not included arrest in number nakayozany which can be recognised by conditional, in a kind rather nebolyoshih terms of the given punishment. So, correctional labour can be naznayocheny for the term from two months till two years (ch. 2 items 50 UK the Russian Federation), restriction on military service — from three months till two years (ch. 1 items 51 UK the Russian Federation), restriction

polivtsev A.V.legal regulation of arrest as punishment under criminal law kind: Diss.... kand. jurid. Sciences. - Rostov-on-Don, 2001. - With. 112-114. 183 There zhe.-with. 113.

92 freedom — from one year till five years (ch. 2 items 53 UK the Russian Federation), the maintenance in distsipyolinarnoj military unit — from three months till two years (ch. 1 items 55 UK the Russian Federation), liyoshenie freedom - from two months till twenty years (ch. 2 items 56 UK the Russian Federation). Arrest, it agree ch. 1 item 54 UK the Russian Federation, can be appointed for the term from one about six months. However, in our opinion, the given parity of terms of the named punishments at all will not lower efficiency of application conditional osuzhdeyonija and to arrest.

Besides, as we marked above, the criminal legislation of some foreign countries provides probation possibilities to are -

__ 184

stu.

Thus, it is represented expedient to add ch. 1 items 73 UK the Russian Federation such kind of punishment as arrest, that is legislatively to provide court possibility to recognise the appointed punishment in the form of arrest conditional.

It is not provided in the Criminal law and possibility of is conditional-preschedule clearing of arrest. According to ch. 1 item 79 UK the Russian Federation, uslovyono-preschedule clearing of enduring the punishment is applied only in otyonoshenii the persons, leaving the maintenance in disciplinary military unit or imprisonment. In this case we support V.V. JakovYoleva's point of view about a rationality of non-use of is conditional-preschedule clearing from otby -

185

vanija arrest in a kind of brevity of arrest.

Arrest as a punishment under criminal law kind can be applied at replacement of not left part of punishment with softer kind of punishment (item 80 UK the Russian Federation). ZaYOmena not left part of punishment on arrest can be carried out court, soyoglasno ch. 1 items 80 UK the Russian Federation, to the person, leaving the maintenance in disciplinary military unit or imprisonment. At replacement of not left part of the named

184 See: the Criminal code of Georgia. - SPb., 2002. - with. 130; Criminal koyodeks the Latvian Republic. — SPb., 2001. - С.91; Criminal law zarubezhyonyh the states. The general part / Under the editorship of I.D.Kozochkina. - M: Institute mezhyodunarodnogo the rights and economy of a name of A.S.Griboedov, 2001. - С.557; SovreYOmennoe the criminal legislation of the Peoples Republic of China. — M, 2000. - С.271.

Jakovlev V.V. Ugolovno-pravovaja the arrest characteristic (teoreticheyosky aspect): Diss.... kand. jurid. Sciences. - SPb., 1999. - with. 100.

• 93 kinds of punishments on arrest, arrest term should be selected by court in the limits provided ch. 1 items 54 UK the Russian Federation, that is from one about six months (ch. 3 items 80 UK the Russian Federation).

At the same time, it is necessary to recognise, that under condition of comparability of terms of arrest and imprisonment or the maintenance in disciplinary military unit, «arrest will act as more strict punishment that does replacement in the such

А*

1.

Situations inexpedient ». Really, for example, the person leaves nayokazanie in the form of imprisonment for colonies settlement and not left part soyostavljaet 6 months. In such situation replacement of not left part of punishment with arrest by six months as condemned to arrest to contain in the conditions of strict isolation from a society (ch will be absolutely senseless. 1 items 54 UK the Russian Federation). On them the order of the maintenance established for osuzhyodyonnyh to imprisonment in the conditions of the general mode in prison (ch extends. 2 items 69 UIKRF).

Arrest can be appointed in a replacement procedure of the penalty, obligatory rayobot or correctional labour in case of malicious evasion from their serving (ch. 5 items 46, ch. 3 items 49, ch. 4 items 50 UK the Russian Federation).

**

2.

So, being guided ch. 5 items 46 UK the Russian Federation, court, in case of malicious evasion from payment of the penalty appointed as the basic punishment, can zameyonit its arrest if last is provided by the sanction sootvetstvujuyoshchej articles of Special part UK the Russian Federation. Penalty recalculation in arrest in this case is not required. The court should appoint arrest within the sanction sootvetstyovujushchej criminally-rule of law. For example, to the person who has made moshenniyochestvo, qualified on ch. 1 items 159 UK the Russian Federation, the core nakazayonie in the form of the penalty is appointed. If the condemned evades from its payment court can replace the penalty with arrest by term from two about four months (the given term of arrest is provided by the sanction ch. 1 items 159 UK the Russian Federation).

See: polivtsev A.V.legal regulation of arrest as kind ugolovyonogo punishments: Diss.... kand. jurid, sciences. - Rostov-on-Don, 2001. — With. 111.

94

Before coming into force of the changes brought in item 46 UK Russian Federation FederalYOnym by the law № 162-FZ, in case of malicious evasion from payment of the penalty it could be replaced by arrest according to the size of the appointed penalty in the limits provided by the Criminal code for this kind of punishment. In connection with the given position in the criminal law theory repeatedly there was a question on an order such "respective" замены.187 Now this problem is removed.

In case of malicious evasion from obligatory works they also can be replaced by court with arrest (ch. 3 items 49 UK the Russian Federation). In that case, time, in teyochenie which the condemned left obligatory works, is considered at definition of term of arrest from calculation one day of arrest for eight hours objazayotelnyh works (ch. 3 items 49 UK the Russian Federation).

However remains not clear, which term of arrest can be nazna-chen in that case. According to ch. 1 item 54 UK the Russian Federation, term of arrest in case of replacement of obligatory works with it can be less than one month. From what iznayochalnogo arrest term the court should proceed, subtracting from it time of departure of obligatory works, the Criminal law does not define.

Arrest can be appointed and at replacement of correctional labour, in case of malicious evasion from their serving (ch. 4 items 50 UK the Russian Federation). In such situation neyootbytaja the part of correctional labour is replaced with arrest from calculation one day of arrest for two days of correctional labour (ch. 4 items 50 UK the Russian Federation). Given poloyozhenie the law it is represented quite concretised, unlike replacement of obligatory works, in case of malicious evasion from their departure. In this connection, we offer to change the formulation ch. 3 items 49 UK the Russian Federation similarly ch. 4 items 50 UK the Russian Federation.

1 Й7

See: Jakovlev V.V. Ugolovno-pravovaja the arrest characteristic (teoretiyochesky aspect): Diss.... kand. jurid. Sciences. — SPb., 1999. — with. 100-102; polivtsev A.V.legal regulation of arrest as punishment under criminal law kind: Diss.... kand. jurid. Sciences. - Rostov-on-Don, 2001. — With. 110.

188 See: ShChepelkov V. F. The Criminal law: overcoming of contradictions and incompleteness. - m, 2003. - With. 304-305.

95

As well as at replacement of obligatory works, term appointed nakazayonija in the form of arrest can be less than one month (ch. 1 items 54 UK the Russian Federation). At the same time, there is a question on possibility of replacement of correctional labour, in case of malicious evasion from their departure, arrest if not left part ispraviyotelnyh works exceeds term in one year. It turns out, that arrest in such sluyochae can be appointed to term more than six months, and it contradicts ch. 1 items 54 UK the Russian Federation. Leaves, that the court in an analyzed situation can appoint only restriction of freedom or imprisonment (ch. 4 items 50 UK the Russian Federation). However, as to us sees, such restriction is not completely defensible. It would be absolutely fair to provide, in our opinion, in similar situations possibility of replacement of correctional labour by arrest for term six months.

Freedom restriction, in case of malicious evasion from its serving, cannot be replaced by arrest (ch. 4 «item 53 UK the Russian Federation). It speaks, in our opinion, difficult comparability of severity and terms of restriction of freedom and arrest. Freedom restriction is, according to item 44 UK the Russian Federation, less strict kind of punishment, in comparison with arrest. But freedom restriction is appointed for the term from one year till five years (ch. 2 items 53 UK the Russian Federation).

Thus, arrest as a punishment under criminal law kind can be appointed in following situations:

1) when it is provided by the sanction of corresponding article of Special part UK the Russian Federation;

2) at appointment of softer punishment, than it is provided for the given crime (item 64 UK the Russian Federation);

3) at replacement of not left part of punishment with softer kind of punishment (item 80 UK the Russian Federation);

4) in a replacement procedure of the penalty, obligatory works and corrective rayobot, in case of malicious evasion from their departure (ch. 5 items 46, ch. 3 items 49 and ch. 4 items 50УКРФ).

96 As it was marked, arrest, according to item 45 UK the Russian Federation, is osnovyonym a punishment kind, therefore cannot join other kinds nakayozany.

?.

At the same time, from Criminal law close interpretation follows, that additional punishments can be attached to arrest. Dopolnitel -

nymi as punishments can act the penalty, the debaring to occupy oprede -

lyonnye posts or to be engaged in certain activity and deprivation special, military or an honorary title, a class rank and gosudarstyovennyh awards (ch.ch. 2, 3 items 45 UK the Russian Federation).

However in Special part UK the Russian Federation is not present any criminally-legal noryomy which sanction would provide possibility of appointment of arrest with штрафом.189

* ■ Deprivation special, military or an honorary title, a class rank

And the state awards it is appointed exclusively for fulfilment of the heavy

л*

Or especially grave crimes (item 48 UK the Russian Federation). Means, the given kind of punishment cannot be attached to arrest as arrest is provided in articles of Special part UK the Russian Federation for crimes small or average tjazheyosti.

The unique additional punishment which joining ^ is possible to arrest, the debaring is to occupy certain posts

Or to be engaged in certain activity. And, it can be naznayocheno for the term from six months till three years (ch. 2 items 47 UK the Russian Federation). That is in any case the person will leave the given additional punishment on term longer the core. Besides, the debaring to occupy certain posts or to be engaged in certain activity it can be appointed in quality dopol -

nitelnogo punishments and in cases when it is not provided I correspond -

f,

Russian cabbage soup article of Special part UK the Russian Federation (ch. 3 items 47 UK the Russian Federation).

polivtsev A.V.legal regulation of arrest as punishment under criminal law kind: Diss.... kand. jurid. Sciences. - Rostov-on-Don, 2001. - With. 109.

: 97

Certain specificity arrest possesses at its appointment nesoveryoshennoletnim.

As is known, ch. 2 items 54 UK the Russian Federation are contained by an interdiction for appointment of arrest to the persons who have not reached shestnadtsatiletnego age, and, according to the item "d" ch. 1 item 88 UK the Russian Federation, to the minor can be appointed punishment in the form of arrest. Thus, arrest as a punishment under criminal law kind can be nazna-chen the minor at the age from sixteen till eighteen years.

Being guided ch. 5 items 88 UK can appoint the Russian Federation, court nesovershennoyoletnemu condemned, reached by the moment of removal by sentence court sheyostnadtsatiletnego age, for the term from one about four months. Such sniyozhenie the top limit of arrest concerning minors obosnovyvayoetsja display of humanism of the Criminal law.

It is remarkable, that arrest is appointed to the minors who have reached by the moment of removal by court of a sentence shestnadtsatiletnego of age, instead of by the committing a crime moment, unlike other kinds of punishments. NaYOprimer, it agree ch. 6 items 88 UK the Russian Federation, imprisonment are appointed nesovershenyonoletnim condemned, committed crimes is elderly till sixteen years, for term not over six years. The given position, in our opinion, obosnovyyovaetsja relative severity of isolation condemned to arrest from a society (for example, according to ch. 2 items 69 Wick the Russian Federation, the general education, profesyosionalnoe formation and vocational training condemned not osuyoshchestvljaetsja), that can fatally affect on physical and mental razyovitii the minor.

From sense UK follows, that arrest can be appointed nesovershennoletyonemu and to term less than one month at:

- To replacement of the penalty, obligatory and correctional labour, in a case zlostyonogo evasion from their serving;

- Awarding punishment below the lowest limit (item 64 UK the Russian Federation).

98

Thus, truncated softer system of kinds наказаний190, priyomenjaemyh concerning minors, provides privilegiroyovannye conditions of appointment of arrest of the given category of the persons who have made preyostuplenija.

The carried out research of questions of appointment of arrest as kind ugolovyonogo punishments allows to draw following basic conclusions:

1) the arrest consisting in the maintenance condemned in the conditions of strict isolation from a society (ch. 1 item 54 UK the Russian Federation), is applied only in quality osyonovnogo a punishment kind (ch. 1 items 45 UK the Russian Federation). The unique additional punishment which joining is possible to arrest, the debaring is to occupy certain posts or to be engaged defined dejayotelnostju;

2) the carried out analysis allows to draw a conclusion on necessity zakrepyolenija arrest in sanctions of those articles where possibility primeyonenija punishments is regulated, in the form of restriction of freedom and imprisonment on opredeyolyonnyj term (or maintenances in disciplinary military unit in prestupleyonijah against military service (section 11 UK the Russian Federation));

3) the interdiction for awarding punishment in the form of arrest to pregnant women and the women having children is elderly till fourteen years, containing in ch. The Russian Federation, it is necessary to replace 2 items 54 UK with an interdiction of appointment of arrest iskljuchiyotelno to pregnant women and the women having children about three years are elderly. Such offer is proved by absence of a similar interdiction for imprisonment appointment, thus, that possibility of stay of the woman in the places of confinement with the child is provided only to dostizheyonija by it of three-year age (item 100 Wick the Russian Federation). Besides, in the Criminal law possibility of giving time of enduring the punishment zhenyoshchine is fixed, having children is elderly do.chetyrnadtsati years (item 82 UK the Russian Federation);

190 See: Zubkova V. I. The System of penalties on UK the Russian Federation and its problems realiyozatsii//Criminal law in the XXI-st century: Materials of the International scientific conference on faculty of law of the Moscow State University of M.V.Lomonosova on May, 31st - on June, 1st, 2001 - M, 2002. - With. 135.

99 4) it is represented expedient to change ch. 2 items 72 UK the Russian Federation so, what the given norm provided 6bv possibility of calculation of arrest in days and in case of its appointment at the restrictions provided by item 62, ch. 3 items 66, ch. 2 items 68 UK the Russian Federation (calculation of fractional parts from maximum or minimalyonogo the penal term).

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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 2.1. The Criminal sentencing in the form of arrest:

  1. 1.1. Essence, the maintenance and the form 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 2. Appointment and execution of punishment under criminal law in the form of arrest
  4. Chapter 1. Concept of punishment in the form of arrest in Russia and the characteristic in the criminal legislation of foreign countries
  5. 2.2. An order, conditions and some problems of execution and enduring the punishment in the form of arrest
  6. § 2. Features and properties of the criminal procedure form of information technologies in criminal trial of the Russian Federation
  7. § 1. The Criminal procedure form of the information technologies used for the organisation of activity of officials and bodies, carrying out the criminal trial
  8. § 3. The Criminal procedure form of the information technologies used for the control of activity of officials and bodies, carrying out the criminal trial
  9. 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
  10. the admissible remedial form of material evidences in Criminal trial
  11. VLADIMIROVA JULIA KONSTANTINOVNA. MAINTENANCE of CRIMINAL PROCEDURES of PARTICIPANTS of the CRIMINAL TRIAL which is held IN CUSTODY OR SERVING TIME In the form of IMPRISONMENT. The dissertation on competition of a scientific degree of the master of laws. Voronezh -, 2018 2018
  12. § 2. The Criminal procedure form of the information technologies used for collecting, check and evaluation of evidence