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the Modern condition and problems of a legal regulation and practice of appointment and execution of punishment under criminal law in the form of freedom restriction

According to the Federal act from 27. 12. 2009 ¹ 377-FZ since January, 10th, 2010 positions UK the Russian Federation [98] , the punishments directed on modernisation in the form of freedom restriction have become effective.

Before entering of these changes the maintenance condemned in the correction centre was provided. Thus it was meant, that enduring the punishment should be carried out in the establishments located in territory of the subject of the Russian Federation in which lived or the person who has broken the law has been condemned. Given
the measure did not provide isolation from a society, however did not exclude application of supervision of the condemned. The occurred modernisation has been directed on that the condemned has had an opportunity to live with the family, not to lose a work place.

the Modern form of restriction of freedom can entail occurrence of negative consequences. Persons with a steady criminal orientation, including recidivists, will not be isolated from a society. Hence, they can maintain criminal relations and make new socially dangerous acts [99] .

the careful analysis of positions of the legislation and judiciary practice concerning appointment and application of restriction of freedom, directed on definition of debatable questions and a formulation of recommendations about their decision Is required. It will allow to avoid incorrect treatment and errors pravoprimenenija corresponding rules of law which can lead to a wrong establishment of duties concerning condemned or even to appointment of unfair punishment.

Many researchers positively estimate prospects of application of restriction of freedom and its inclusion in the list of criminally-legal measures [100] . However before modification of corresponding positions of the legislation of 2009 its realisation in practice was impossible. Since 2010 the situation has changed. By results of the statistical data given by Judicial department at the Supreme Court of the Russian Federation, in 2010 the considered measure (as the basic punishment) has been appointed less, than 1 % condemned [101] . In 2011-2016 the number varied from 10 994 persons in 2011ã. (That has constituted 1, 4 % from the general number condemned) to 32 052 people in 2013 (4, 4 %). In 2016 punishment in a kind
freedom restrictions has been appointed to 26 558 persons (3, 5 %) [102] . In 2017 the share of such persons has constituted 3, 6 % [103] . In the first half of the year 2018 The share condemned by which punishment in the form of freedom restriction (the basic punishment) also is appointed has constituted 3,6 % [104] . Thus, insignificant growth of number of the persons sentenced to the given measure, in comparison with the beginning of 2010th is observed

In a course pravoprimenitelnoj activity complexities of application of punishment in the form of restriction of freedom as additional punishment come to light.

In 2016 it íàçíà÷àëîñü9 502 condemned (1, 2 % from the general number condemned) [105] . In 2017 - (1, 3 %) [106] , in the first half of the year 2018 - (1, 4 %) [107] . In spite of the fact that in positions of the Russian legislation there is no express prohibition on simultaneous application of conditional punishment in the form of imprisonment and freedom restriction as additional punishment, the analysis of their maintenance excludes such possibility.

Both freedom restriction, and conditional imprisonment assume restriction of the right on inviolability of a private life and dwelling, moving freedom; the interdiction for residence change, for participation in meetings and demonstrations, processions and piketirovanijah, on visiting of some places or actions is provided; duties are established there are houses in concrete time intervals, and also to visit UII.

As fairly marks And. V.Zvonov, volume base pravoogranicheny at appointment of these punishments is identical. Thus
the scope of duties and restrictions at imprisonment serving conditionally formally should be more than at freedom restriction. It essentially distinguishes the given measures of influence on volume of retaliatory potential and, we will notice, what not towards punishment under criminal law in the form of freedom restriction. It is possible to tell, that inherent in it pravoogranichenija are absorbed pravoogranichenijami conditional imprisonment [108] . Thus, simultaneous application of probation to imprisonment and freedom restrictions as additional punishment is inexpedient as their essence radically does not differ. Judiciary practice develops in the same direction. Besides, unlike restriction of freedom the imprisonment appointed conditionally, is not punishment, and is faster a kind of clearing of it.

According to summary statistical data on activity of federal courts of the general jurisdiction and world judges, in 2016 to real imprisonment, 214 900 persons have been sentenced to probation to imprisonment-188 603 persons, to forced hard labour - 5 persons (all-403508 the person). To freedom restriction (as a punishment auxiliary view) in 2016, and also probationeers 9502 persons that constitutes only 2 % from total number of persons by which in the form of imprisonment punishment has been appointed to certain term, forced hard labour have been sentenced to imprisonment [109] . In 2017 the given measure was applied to 9274 persons that constitutes 2, 4 % [110] , in the first half of the year 2018 - 2, 5 % [111] .

So, a sentence of Butyrsky regional court of of Moscow from May, 10th, 2016 Volobuyev N. I has been recognised by guilty of committing a crime,
provided ch. 1 items 161 UK the Russian Federation. It, being in a cafe premise, has made open plunder of a mobile phone of mark «Ajfon 6 S» (by jerk) at the acquaintance then has left a premise, having ignored requirements sustained to return the stolen. N.I.Volobuyev was involved earlier in the criminal liability for fulfilment of a deliberate crime of average weight. Having not removed and outstanding previous conviction, it has committed a new crime (i.e. Relapse of crimes) takes place. In this connection the court has come to conclusion about necessity of awarding punishment in the form of imprisonment, however has found possible N.I.Volobuyev's correction without real serving of punishment by it. To the last probation to imprisonment for a period of 1 year of 6 months without restriction of freedom with a trial period within 2 years [112] has been appointed. The court has come to conclusion, that application of additional punishment in the form of freedom restriction in this case is not required.

If freedom restriction is appointed as the supplementary measure in relation to real imprisonment, its term starts to be estimated from the date of actual execution of the basic punishment. It, first of all, is directed on the decision of preventive problems. Pravoprimeniteli address to this sanction, as a rule, if condemned are sentenced to small terms of imprisonment for realisation of supervision of these persons after their clearing from correctional facilities. Cases of application of restriction of freedom after long terms of imprisonment [113] are rare.

Appointment of the given punishment as the additional has the lacks. After departure of real imprisonment of the person experience considerable complexities in resotsializatsii. Previous conviction presence

promotes occurrence of complexities with reception of formation and employment. Some kinds of activity will be a priori inaccessible to the person to whom punishment in the form of freedom restriction is appointed. Many researchers noticed, that appointment of the given punishment as that who works in territory of one municipal union, and lives in territory of another, is inexpedient [114] . Following the appointed

pravoogranichenijam, condemned have been forced to refuse work at night (for example, the watchman) or vahtovym a method. Otherwise the person who has broken an order of enduring the punishment, could be made accountable according to item 314 UK the Russian Federation.

Similar examples exist in pravoprimenitelnoj to practice. So, in Republic Bashkortostan the regional court has appointed punishment in the form of restriction of freedom to the person for professional work realisation it was necessary for them to leave city territory. However the sentence had been established an interdiction for such trips. As a result of such decision the condemned has lost work [115] .

However according to item 18 of the Decision of Plenum of the Supreme Court of the Russian Federation from 22. 12. 2015 ¹ 58 (red. From 29. 11. 2016) «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» [116] ­ ugolovnoispolnitelnaja inspection can independently make the positive decision of possibility of departure condemned for limits of territory of corresponding municipal union if it is connected with performance of work or formation reception. Under O.M.Kalininoj's fair remark, occurrence of this explanation
will allow judges to appoint more often the given kind of punishment [117] . Besides, at the condemned will appear more chances to keep or find work and free to continue training.

Before occurrence of the above-named decision there was a problem of treatment of some categories connected with definition of a place of enduring the punishment. According to the item 2Çàêîíà the Russian Federation from 25. 06. 1993 ¹ 5242-1 (red.ot 03. 04. 2017) «about the right of citizens of the Russian Federation on svoboduperedvizhenija, a choice of a place of stay and a residence within RossijskojFederatsii» a residence - an apartment house, apartment, a room, a premises of specialised available housing or other premises in which the citizen constantly or mainly lives in quality of the proprietor, under the employment agreement (podnajma), to the employment agreement of specialised premises or on other bases provided by the legislation of the Russian Federation and in which it is registered on a residence. Residence of the citizen concerning the radical small people of the Russian Federation, the leader nomadic and (or) the seminomadic way of life and not having place where he constantly or mainly lives, can be recognised one of the settlements which are in municipal area in which borders there pass routes kochevy the given citizen [118] . Also explanations are given in the decision named above (item 18). So, if freedom restriction is the basic punishment, in a sentence the territory for which limits condemned it is forbidden to leave and in which limits it is forbidden to visit certain places without the consent of criminally-executive inspection should be specified. If the settlement structure in which lives condemned, includes some municipal unions the court has the right to establish corresponding
restrictions within territory of such settlement. If the settlement is a municipal union part restrictions are established within municipal union territory, instead of settlement [119] .

When freedom restriction acts as the supplementary measure in relation to imprisonment, the restrictions connected with an interdiction to leave certain territories and to visit certain places, the municipal union concrete definition do not demand. Will be the instructions made court enough; restrictions extend on territory of that municipal union where the condemned will live after imprisonment departure. Thus the municipal union name is underlined to that UII which will carry out supervision of the person released from jails.

to Some categories of citizens the given sanction a priori cannot be appointed. The specified circumstance not always is considered at removal of judgements and generates errors pravoprimenenija. In particular, from March, 13th, 2014 citizens I and L were convicted by a sentence of Pyatigorsk city court of fulfilment of socially dangerous act provided by the item « »ch. 2 items 105 UK the Russian Federation. The court recognised as their guilty. Each of them was prigovorenk to punishments under criminal law in the form of imprisonment for the term of 14 years with restriction of freedom on 2 years. The court has appointed additional punishment and concretised it, that is has specified actual interdictions, restrictions, duties concerning I and at appointment of an auxiliary view of punishment under criminal law as court it was not accepted L.Odnako in attention that agree ch. 6 items 53 UK the Russian Federation punishment under criminal law in the form of freedom restriction are not appointed to persons who do not have permanent addresses in territory of our country. And at I and L there was no constant place of residence in territory of the Russian Federation. In this connection judicial
the board on criminal cases of the Supreme Court of the Russian Federation has considered case, has changed a sentence concerning I and L and has excluded the punishment appointed earlier in the form of freedom restriction [120] . Hence, in case pravoprimenitel, awards punishment in the form of freedom restriction as additional to military men, citizens of the foreign states, the persons who do not have citizenship or permanent residence in territory of the Russian Federation, it breaks instructions ch. 6 items 53 UK the Russian Federation. Elimination of such errors will be promoted by a recognition of inexpediency of appointment of restriction of freedom as additional punishment. As it was marked above, as worthy alternative to it the reference to administrative supervision for the persons having a previous conviction who have made socially dangerous acts with high degree of the social danger can serve.

In spite of the fact that legislators and pravoprimeniteli direct the efforts to elimination of problems of execution of punishment in the form of freedom restriction, it was possible to eliminate not all lacks. Application of restriction of freedom as supplementary measure does not allow to consider the personal changes which have occurred with condemned during serving of the basic punishment. At the moment of adjudgment and definition of penal terms the court is deprived possibility to provide what choice pravoogranicheny concerning this person will be the most effective. Especially, if freedom restriction is appointed as additional to the basic punishment in the form of imprisonment to long term. In this case between adjudgment and departure of the basic punishment there will pass a lot of time during which there will be considerable changes, both in the person condemned, and in a situation in the country.

Taking into account the aforesaid (including on the basis of the conclusions made in the previous paragraph), we believe, that in UK the Russian Federation it is necessary to change item 45 edition, 53, regulating questions of appointment of the given punishment, and also item 314 UK the Russian Federation, providing the criminal liability for evasion from the serving of restriction of freedom appointed as additional punishment. It is recommended to rename article 314 «Evasion from serving of restriction of freedom, imprisonment, and also from application of forced measures of medical character» UK the Russian Federation, having appropriated the name «Evasion from imprisonment serving, and also from application of forced measures of medical character» and to recognise become invalid ÷.1 and the note 1 to item 314 UK the Russian Federation.

Also it is necessary to change edition ch. 5 items 58 Wick the Russian Federation, having excluded a phrase: «Malicious evasion condemned from enduring the punishment in the form of the restriction of freedom appointed as additional punishment, attracts responsibility according to the legislation of the Russian Federation.

For condemned to freedom restriction by criminally-executive inspections supervision is carried out. It represents system of control measures and supervision over behaviour, activity and movement of corresponding persons. According to item 60 Wick the Russian Federations for supervision maintenance can be used supervision and control means. They are defined in the Governmental order of the Russian Federation from 31. 03. 2010 ¹ 198 «About the statement of the list of audiovisual, electronic and other means of supervision and the control used by criminally-executive inspections for maintenance of supervision for condemned to punishment in the form of restriction of freedom» [121] . Use corresponding technical
means facilitates realisation of professional work of employees UII. The existing system of electronic monitoring allows to find out quickly admitted condemned infringements of an order of enduring the punishment in the form of restriction of freedom and in due time to react to them. Thus, use of means promotes the decision of preventive problems. Thanking their use, there is a hindrance as to infringement of the instructions established by court for condemned, and fulfilment of new illegal acts.

Other important problem of execution of considered punishment - features of a territorial arrangement of inspections. In Republic Dagestan 51 UII, from them 41 serves territory of the areas located in a countryside. In overwhelming majority in UII works on one regular employee. To carry out the duties on supervision for condemned in the conditions of a city with the developed network of transport it is much easier, than in rural area, from it razbrosannostju and an undeveloped infrastructure. UII, located in a countryside, are characterised by low level of mobility as they are not provided by cars or motor-technics, the unique car is at the disposal of MRUII ¹ 1.

In execution ch. 4 items 47. 1 Wick the Russian Federations at statement condemned to restriction of freedom on the account should be spent dactyloscopic registration and photographing with the subsequent entering of a photo of the automated card-index account condemned in the program spetskontingenta. However not in all inspections of Republic Dagestan there is on hand an equipment necessary for it, therefore inspectors should address for the help to employees of mountains (paradise) of law-enforcement bodies which not always have possibility in due time to respond to the request. These and considered above circumstance
testify to necessity of the account of regional features at awarding punishment (in particular, freedom restrictions).

There are errors in pravoprimenitelnoj to the practice, connected with an establishment of duties and restrictions for the persons condemned to restriction of freedom. Such cases interfere with effective work of criminally-executive inspections. Their employees should resort to the help of organs of the Prosecutor's Office which should react to infringements, and also in the courts of justice, authorised to concretise an enduring the punishment order.

miscarriages of justice in the Republic Dagestan, connected by that in a court sentence interdictions and the duties imposed on the condemned have not been accurately defined Have been found out. For example, the sentence from March, 15th, 2014 of Ahtynsky regional court M and P had been appointed punishment in the form of imprisonment to certain term with restriction of freedom on 1 year. However there were no instructions on restrictions and duties for these persons. In this connection on criminal cases of the Supreme Court of the Russian Federation the sentence of Ahtynsky regional court has been changed and excluded by the full court appointment M and P punishments in the form of freedom restriction [122] .

If in a court sentence there are no instructions on concrete restrictions for condemned, punishment under criminal law is not considered appointed [123] .

In the Decision of Plenum of the Supreme Court of the Russian Federation «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» necessity of concrete transfer is underlined

pravoogranicheny. According to item 19 at an establishment of restriction on visiting of certain places the court should specify their signs (for example, public catering places in which consumption
is authorised to alcoholic production, child care centres). Also should be particularly specified, what quantity of times in a month condemned should visit UII [124] .

Except considered above debatable questions, we believe, that it is expedient to review term of restriction of freedom. Analyzing pravoprimenitelnuju to practice, it is possible to notice, that the maximum term of restriction of freedom has constituted 3 years of 6 months [125] [126] . Some scientists fairly specify that the majority of the condemned had a stay of process of correction of behaviour at appointment of the long

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terms of this punishment.

It is represented, that the establishment of the maximum term in four years is inexpedient. During this time the circumstances connected with execution of punishment, caused both the human factor, and perfection of means and control methods can change. Besides it if it is supposed, that for correction of the criminal 4 years there is a question on expediency of appointment of so soft punishment can be demanded. Hence, we suggest to review the maximum term of restriction of freedom towards decrease (till 3th years).

Conclusions under the paragraph:

Simultaneous application of probation to imprisonment and freedom restrictions as additional punishment is inexpedient. Their essence radically does not differ. Besides, application of restriction of freedom as the supplementary measure does not allow to consider the personal changes which have occurred with condemned during serving of the basic punishment. Especially, if freedom restriction is appointed as additional to the basic punishment in the form of imprisonment to long term. In this case between
adjudgment and departure of the basic punishment there will pass a lot of time during which there will be considerable changes both in the person condemned, and in a situation in the country.

After departure of real imprisonment of the person experience considerable complexities in resotsializatsii. Previous conviction presence promotes occurrence of complexities with reception of formation and employment. Appointment to it punishments in the form of freedom restriction will create additional difficulties. Some kinds of activity will be a priori inaccessible to this person. Following appointed pravoogranichenijam, condemned are forced to refuse work at night (for example, the watchman) or vahtovym a method.

we Believe, that in UK the Russian Federation it is necessary to change item 45 edition, 53, regulating questions of appointment of the given punishment, and also item 314 UK the Russian Federation, providing the criminal liability for evasion from the serving of restriction of freedom appointed as additional punishment and item 58 Wick.

the Establishment of the maximum term of restriction of freedom in 4 years is represented inexpedient. During this time the circumstances connected with execution of punishment, caused both the human factor, and perfection of means and control methods can change. Besides it if it is supposed, that for correction of the criminal 4 years there is a question on expediency of appointment of so soft punishment can be demanded. Hence, we suggest to review the maximum term of restriction of freedom towards decrease (till 3th years).

It is represented, that increase of efficiency of execution of punishment in the form of freedom restriction can be promoted by following measures:

I. It is necessary to state ch. 1, 2 items 45 UK the Russian Federation in the following edition:

Obligatory works, correctional labour, restriction povoennoj to service, freedom restriction, forced hard labour, arrest,
the maintenance in disciplinary military unit, imprisonment for certain term, lifelong imprisonment, a death penalty are applied only as principal views of punishments...

the Penalty, the debaring to occupy certain posts or to be engaged in certain activity are applied in quality as the basic, and additional kinds of punishments.

II. The following edition ch Is offered. 2 items 53 UK the Russian Federation: «freedom Restriction is appointed for the term from two months till three years for crimes of small weight and a crime of average weight».

III. We recommend to rename article 314 «Evasion from serving of restriction of freedom, imprisonment, and also from application of forced measures of medical character» UK the Russian Federation, having appropriated the name «Evasion from imprisonment serving, and also from application of forced measures of medical character» and also to recognise as become invalid ch. 1 and the note 1 to item 314 UK the Russian Federation.

IV. Also it is necessary to change edition ch. 5 items 58 Wick the Russian Federation, having excluded a phrase: «Malicious evasion condemned from enduring the punishment in the form of the restriction of freedom appointed from additional punishment, attracts responsibility according to the legislation of the Russian Federation.

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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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  2. the Basic kriminologicheskie the determinants promoting increase of efficiency of execution of punishment under criminal law in the form of restriction of freedom
  3. Chapter 2. Appointment and execution of punishment under criminal law in the form of arrest
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  5. CHAPTER 2. The KRIMINOLOGICHESKY COMPONENT of EFFICIENCY of EXECUTION of PUNISHMENT In the form of FREEDOM RESTRICTION
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  14. 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 - < year> 2019,
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  17. § 1. A modern condition of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen in operativnorozysknoj to practice
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