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§ 1. Concept and subjects of maintenance of criminal procedures held in custody or serving time in the form of imprisonment

Maintenance of laws of procedure held in custody or serving time in the form of imprisonment concerns one of kinds of criminal procedure maintenance of laws of persons. Under ugolovnoprotsessualnym maintenance of laws of persons it is accepted to understand «activity of the inspector, the investigator, the public prosecutor, the court, directed on creation of optimum conditions for realisation of laws of procedure and duties of participants of the criminal trial» 1.

Hence, pravoobespechitelnoj the activity [10 [11] which are carried out concerning held in custody or serving time in the form of imprisonment, all characteristics which maintenance of the rights of any person in the criminal trial and to which to some extent the attention in the scientific literature time and again was paid possesses are inherent. Among them: an accessory of criminally - remedial maintenance to one of kinds of the state activity; Realizability its state bodies and the officials participating in the criminal trial; reglamentirovannost the given kind of activity by the law; conformity to its appointment of the criminal trial; an orientation on realisation of rights of the persons participating in criminal procedure relations; use in a course pravoobespechitelnoj activity of means, statutory. Some listed characteristics demand the specification with reference to a situation when the person requiring maintenance of the laws of procedure, is in custody or serves time in the form of imprisonment. The subjects who are carrying out pravoobespechitelnuju activity concerning specified persons require specification, and also object and means obespechitelnoj activity.

On these parametres difference of maintenance of laws of procedure held in custody or serving time in the form of imprisonment from maintenance of remedial possibilities of the persons who are at large is observed.

Speaking about the subjects providing laws of procedure held in custody or serving time in the form of imprisonment, it is necessary to remember, that the state bodies and officials which under the law are obliged to condition for realisation of laws of procedure held in custody or serving time in the form of imprisonment concern them. It is a question of the persons leading criminal proceeding. Such approach is used in some works [12]. The state bodies and officials for realisation of the duty on maintenance of laws of procedure held in custody or serving time in the form of imprisonment are allocated by imperious powers. In the legal literature the emphasis that imperious character of the powers which realisation allows the state bodies and officials to guarantee the actions laws of procedure of other participants entering with them in criminal procedure relations, is the major sign of subjects pravoobespechitelnoj activity \allowing them is not casually traditionally placed to be the guarantor [13 [14]. For this reason it is impossible to agree with attempts of separate authors to expand a circle of such subjects at the expense of the defender [15]. After all at the defender other appointment in the criminal trial: to protect the principal by realisation of corresponding criminally-remedial function.

The given circumstance has been considered by Plenum of the Supreme Court of the Russian Federation which in one of the decisions has noted: «Maintenance of the right of defence is a state duty...» [16].

In it it has been underlined, that the possibility of realisation of the rights of the convicted is assigned on the persons who are carrying out check of the message on a crime and preliminary investigation on business: on the investigator, agency in charge of preliminary investigation, the chief of body or division of inquiry, the inspector, the head of the organ of inquiry, the public prosecutor, and during judicial manufacture - on court [17]. Apparently, any of the listed subjects does not carry out protection function. According to structure and the maintenance of section II UPK the Russian Federation the court carries out legal investigation function in essence, and other participants - charge function. It is not difficult to see also, that in resulted in the decision of Plenum VS the Russian Federation the list of subjects pravoobespechitelnoj activity the defender is absent. But in it along with the public prosecutor, the inspector, the investigator and court behind which the legislator the role of subjects pravoobespechitelnoj activity (ch unequivocally admits. ch. 1, 2, 3 items 11, ch. 2 items 16 UPK the Russian Federations), find the place the state bodies and officials, pravoobespechitelnaja which function is rather shy seen by the legislator. It is a question of agency in charge of preliminary investigation, the chief of body or inquiry division, the head of the organ of inquiry. Their role in maintenance of laws of procedure of the persons participating in criminal procedure relations, has received an accurate designation only in ch. 3 items 11 UPK the Russian Federation in the form of acceptance of security measures in relation to the persons requiring them. The analysis ch. 3 items 16 UPK allow to speak the Russian Federation about one pravoobespechitelnom a direction of activity of agency in charge of preliminary investigation, the chief of body or division of inquiry, the head of the organ of inquiry: maintenance of obligatory participation of the defender and (or) the legal representative. To such conclusion it is possible to come, considering instructions of the legislator that the given kind of maintenance lays down on the officials leading criminal proceeding. Subjects of the departmental remedial control (the head of the organ of inquiry and the chief of division of inquiry) under this requirement can fall, when are engaged in crime investigation agree ch. 2 items 39 and ch. 2 items 40.1 UPK the Russian Federation.

Indecision of the legislator in fastening to agency in charge of preliminary investigation, the chief of body or inquiry division, the head of the organ of inquiry pravoobespechitelnoj roles is obvious. And after all subjects of maintenance of the personal rights in the criminal trial detailed fastening in the law of powers belonging to them \and also always distinguished them garantirovannost. Long before an exit of the Decision of Plenum VS the Russian Federations № 29 on this circumstance have paid attention from 30.06.2015 a number of the authors, urged to carry the specified participants to subjects pravoobespechitelnoj of activity in the criminal trial. I.A.Nasonov it is successful argu - [18 [19] mentirovala necessity of entering of respective alterations for the item of item 11 and 16 UPK РФ1. However the legislator in the given direction moves irresolutely. However, separate shifts cannot remain not noticed. So, from 30.12.2015 № 440-FZ pravoobespechitelnaja function of agency in charge of preliminary investigation, the chief of agency in charge of preliminary investigation and the chief of division of inquiry, the head of the organ of inquiry has been strengthened by the Federal act. In - the first, on agency in charge of preliminary investigation, the chief of agency in charge of preliminary investigation and the chief of division of inquiry along with the investigator, the inspector, the public prosecutor and court have officially been assigned a duty to take out lawful, proved and motivirovannye decisions (ch. 3 items 7 UPK the Russian Federation) to carry out actions so that they were sufficient and effective (ch. ch. 3, 3.1 items 6.1 UPK the Russian Federation) to be eliminated from participation in manufacture on business in the presence of grounds for disqualification (ch. 1 items 62 UPK the Russian Federation). Secondly, there was an item 40.2 UPK the Russian Federation regulating the remedial status of the chief of agency in charge of preliminary investigation, including the duties which realisation during the departmental remedial control is capable to assist maintenance of the rights of the participants who are not possessing imperious powers (for example to check materials of check of the message on a crime and the materials of criminal case which are in manufacture of agency in charge of preliminary investigation, the investigator; to approve the indictment or the accusatory decision). Thirdly, the higher head of the organ of inquiry has been authorised prini - [20 [21] [22] [23] mother the decision on tap of the head of the organ of inquiry (ch. 1 items 67 UPK the Russian Federation), that is important for interests of maintenance of the laws of persons which are not carriers of imperious powers.

So, that subjects of maintenance of the rights of any person involved in criminal procedure relations, are is conclusive: the investigator, agency in charge of preliminary investigation, the chief of agency in charge of preliminary investigation or the chief of division of inquiry, the inspector, the head of the organ of inquiry, the public prosecutor, court. They urged to provide laws of procedure held in custody or serving time in the form of imprisonment. However not only the named subjects are allocated pravoobespechitelnoj by function. It is characteristic and for other persons allocated with imperious powers: sledo - the vatelja-criminalist (item 40.1 ch. 1 items 5 UPK the Russian Federation), the head of investigatory group (item 4 ch. 4 items 163 UPK the Russian Federation), the head of group of investigators (ch. 3 and item 5 ch. 4 items 223.2 UPK the Russian Federation). II UPK the Russian Federation the mentioned persons are not included by section in number of participants of the criminal trial. However, in the literature in favour of an actual accessory of some of them (in particular, the inspector-criminalist) convincing arguments are resulted in a circle of the subjects participating in criminal procedure отношениях1. Separate authors suggest to include in text UPK the Russian Federation new article 38.1"the Inspector-criminalist» 2. Not going into details the specified discussion, with reference to a question considered by us we will tell, that the inspector - the criminalist and the head of investigatory group, possessing powers of the inspector, and also the head of group of investigators, possessing powers of the investigator, can carry out investigation on criminal case and as V.L.Kudryavtsev truly marks, to make detention. Thus [24 [25] [26] in parallel they carry out pravoobespechitelnuju activity in relation to the persons who are not possessing imperious powers. With them sledo - the vatelju-criminalist, the head of investigatory group, the head of group of investigators should enter criminal procedure relations in connection with investigation on criminal case, including and application of remedial compulsion. Means, it is necessary to speak about more wide range of the subjects providing the rights of participants of the criminal trial by which are covered the inspector-criminalist, the head of investigatory group, the head of group of investigators.

It is important to notice, that pravoobespechitelnaja loading between the state bodies and the officials who are carrying out corresponding activity in relation to held in custody or serving time in the form of imprisonment, it is meted on - the especial. So, it considerably increases as on court, the public prosecutor and the head of the organ of inquiry, and on the investigator, the chief of division of inquiry and the inspector. This results from the fact that the specified subjects are found in "epicentre" of procedure of application of measures of criminal procedure compulsion (both detention, and taking into custody) without which the remedial status held in custody or serving time in the form of imprisonment would lose any sense. And time so the state bodies and the officials involved in application of measures of criminal procedure compulsion, should compensate the activity in relation to interested persons an additional arsenal pravoobespechitelnyh means which is not applied to the participants of the criminal trial who are at large.

From the specified arsenal it is possible to carry the following actions carried out by the state bodies and officials according to their duties and directed on creation of conditions for to number of means realiza - tsii the rights held in custody or serving time in the form of imprisonment:

- Substantiation inspectors and investigators in the decision about excitation before court of the petition for election of a preventive punishment of impossibility of application of other preventive punishment (ch. 3 items 108 UPK the Russian Federation);

- Observance of terms for the reference with such petition in court, observance by court of terms of consideration of such petition (ch. 4 items 108 UPK the Russian Federation);

- Explanation court to the suspect convicted, taking part in session of the court, their rights and duties (ch. 6 items 108 UPK the Russian Federation);

- Substantiation in session of the court by the public prosecutor of the initiated petition (ch. 6 items 108 UPK the Russian Federation);

- Consideration by court of appeal instance of the complaint to the decision of the judge about election as a taking into custody preventive punishment (ch. 11 items 108 UPK the Russian Federation);

- The immediate notice the person who is carrying out manufacture on business, close relatives suspected or convicted, commands of military unit, the secretary of Public chamber of the Russian Federation, the chief of law-enforcement body in which its employee serves, about a place of holding in custody suspected or convicted (ch. 12 items 108 UPK the Russian Federation);

- Maintenance of participation in the session of the court devoted to election of taking into custody or its prolongation, suspected or convicted, its defender and the legal representative (ch. 13 items 109 UPK the Russian Federation);

- The permission of the head of the organ of inquiry to the reference of the inspector in court with the petition for election as a taking into custody preventive punishment (ch. 3 items 108 UPK the Russian Federation);

- The permission of the public prosecutor to the reference of the investigator in court with the petition for election as a taking into custody preventive punishment (ch. 3 items 108 UPK the Russian Federation), etc.

The resulted list of means allows not only to show some additional criminal procedure possibilities of the subjects providing laws of procedure held in custody or serving time in the form of imprisonment, in comparison with the similar subjects occupied with maintenance ugolovnoprotsessualnyh of the rights of participants of the criminal trial, at large. In it one of classifications of the remedial means used in pravoobespechitelnyh the purposes is recognised. The criterion laying in its basis, are the subjects, authorised to use these means.

Classification consolidates following groups of means:

- Applied by the public prosecutor;

- Applied by the inspector;

- Applied by the investigator;

- Applied by agency in charge of preliminary investigation and its chief;

- Divisions of inquiry applied by the chief;

- Applied by the head of the organ of inquiry;

- Applied by court.

Subjects pravoobespechitelnoj activity use the specified means in interests of the persons requiring maintenance of the rights. These persons are the second party of the legal relations arising and existing in pravoobespechitelnyh the purposes. The participants who are held in custody and serving time in the form of imprisonment concern such persons taking into account a theme of our research. As truly marks E.K.Kutuev, the specified persons get a specific legal status of the person held in custody, caused pravoogranichenijami and conditions of its finding in an investigatory insulator [27].

The given participants are consolidated by conditions nesvobody («compulsory isolation» [28]) in which they are, sojourning in places of holding in custody or in places of enduring the punishment in the form of imprisonment. Not without reason the Federal act from July, 15th, 1995 № 103-FZ supposes "combination" of these places. According to item 7 of the mentioned normative act «maintenance places on guards suspected and convicted the establishments of criminally-executive system executing punishment under criminal law in the form of imprisonment, in cases, statutory» can be.

Conditions nesvobody are characterised:

1) restriction of possibility of the person independently to carry out following remedially significant actions in interests of the protection: personally to invite the defender; to communicate with the defender with the maximum efficiency and it is unlimited in time; personally to collect evidentiary information, mainly, justificatory character, personally to give to the persons who are carrying out the criminal trial, the received information;

2) necessity of observance by the person of some the restrictions connected with requirements of a mode of holding in custody. One of them is, for example, the requirement for the person to communicate with the defender in conditions at which the employee of a place of holding in custody can see them, but not hear. If the defender makes attempt to transfer suspected or convicted the forbidden subjects and substances, the employee has the right to interrupt appointment (ch. 2 items 18 of the Federal act from 15.07.1995 № 103 FZ);

3) impossibility for the person immediately to transfer the complaint about infringement of the rights and legitimate interests, and also impossibility of immediate visiting public prosecutor's or the judicial officer in connection with the arrived complaint.

Article 126 UPK the Russian Federation though contains a rule according to which the administration of a place of holding in custody is obliged to send immediately to the public prosecutor or in court the complaints of the suspect convicted addressed to it, held in custody, however this requirement, unfortunately, is not always carried out;

4) difficulties in operative acquisition of access to the legislation (in operating edition) and use of the legal literature. Especially it concerns the normative acts operating at the moment of the maintenance, and collections judicial практики1;

5) restriction of possibilities in personal security maintenance. It is connected, first of all, that owing to objective circumstances workers of places of holding in custody are deprived possibility quickly to react to threat of safety held in custody and to accept corresponding measures of protection [29 [30];

6) action of adverse psihologo-physiological factors which complicate, and sometimes do impossible preparation of protection with appropriate carefulness and reasonableness.

And last characteristic of conditions nesvobody can be shown in various forms:

1) frequently suppressed and oppressed condition in the psychological plan which is caused by sharp change of habitual conditions of existence, movement imprisonment, necessity of the adaptation to unfamiliar surrounding conditions, the official constant control from administration and the informal control of other persons who are in one premise with taken into custody;

2) decrease in concentration of attention for preparation for the protection, caused by a conditions of life in which there is a person.

For example, in one of decisions ESPCH the following reference on the answer given by Office of Public Prosecutor of the Astrakhan area of the Russian Federation, to the lawyer of the applicant is resulted. In the letter it was informed, that on February, 29th, 2008 the assistant to the regional public prosecutor and the deputy chief of an investigatory insulator № 1 have spent all-round material check of the chamber № 79. During check the chamber № 79 had 12 berths, however for that moment in it 15 persons contained. By results of the above-stated check also it has been established, that similar infringements were in the majority of other chambers of an investigatory insulator. Such negative factors as overpopulation, the shabby condition of buildings and other infringements of the Federal act from 15.07.1995 № 103-FZ, have served as the reason of a direction regional Office of Public Prosecutor of representation to the chief [31];

3) a lack of time for preparation for protection as first of all the person is obliged to fulfil the requirements of a mode concerning, including, an order of dialogue with representatives of administration and other persons held in custody;

4) a round-the-clock finding of the person in aggressive and hostile environment for it in which frameworks continuous contact to representatives of administration and to other in custody persons is carried out.

Such conditions nesvobody in aggregate can lead to infringement of laws of procedure held in custody or serving time in the form of imprisonment. So ESPCH in one of the the decision briefed the following: «... Sufferings and feeling of a dissatisfaction which the applicant should test in connection with brutal conditions of transportation and the conclusion, mention its ability to concentration and intensive application of mental faculties on the eve of sessions of the court when possibility to give the lawyer of instructions and to consult to it had the major value. Cumulative

The effect of external conditions and inadequacy of accessible means have made impossible appropriate preparation of the applicant for the protection, especially because it could not get acquainted with business or with the notes in the chamber »[32].

Conditions "nesvobody" affect maintenance of the rights of considered participants, defining its specificity. They, limiting or at all doing impossible executing process in the protection, cause in the last the big requirement in pravoobespechitelnyh measures, than at the persons who are at large. Especially demanded there are those means which applications for the participants who are at large do not find: granting of appointment to the defender (ch. 4 items 92, item 9 ch. 4 items 47 UPK the Russian Federation), relatives (item 395 UPK the Russian Federation); acceptance and consideration of complaints to application to them of taking into custody (ch. 11 items 108 UPK the Russian Federation), etc. the Participants who are at large, are not interested in the specified means as do not require in granting of appointments to the defender, relatives (can with them at any time meet); in acceptance and consideration of the specified complaints. At the same time a similar sort of a measure urged to strengthen maintenance of laws of procedure held in custody or serving time in the form of imprisonment. As a result the mechanism of maintenance of laws of procedure held in custody or serving time in the form of imprisonment appears more difficult and powerful, than the similar mechanism calculated on persons, at large. After all it besides the other includes the means, called to soften negative for realisation of laws of procedure held in custody or serving time in the form of consequence imprisonment nesvobody. Besides, in criminal trial the tendency to the further strengthening pravoobespechitelnoj the activity which is carried out concerning held in custody or serving time in the form of imprisonment is distinctly observed. It is well traced in changes to which was exposed UPK the Russian Federation during the period after its acceptance. Among them:

- Putting on by the Federal act from 08.12.2003 № 161-FZ1 on the judge of a duty to specify in the decision about election of a preventive punishment in the form of taking into custody concrete, actual facts on which basis the judge has made such decision. The given position is reproduced by a part of first item 108 UPK the Russian Federation. And the Federal act from 02.12.2008 № 226-FZ, bringing additions in ch. 1 item 108 UPK the Russian Federation, has specified, that circumstances should be checked in session of the court;

- Addition with the Federal act from 22.04.2004 № 18-FZ articles 100 UPK the Russian Federation a part of the second, state bodies providing a duty and officials immediately to cancel taking into custody in case of a presentation to the person of charge in fulfilment at least one of crimes of the list established by given norm, in time, of exceeding 30 days from the moment of detention. Further taking into account interests of the person containing under the guards, the list of crimes has been expanded. However, the deadline too has been increased till 45 days [33 [34] [35] [36];

- Increase (from two till three years) the minimum threshold of punishment in the form of the imprisonment, allowing to apply the conclusion under стражу1. The given short story has been fixed in ch. 1 items 108 UPK the Russian Federation in 2012;

- Addition with the Federal act from 03.07.2016 № 325-FZ parts of fourth article 46 point 3.1 and parts of fourth article 47 point 9.1 from which follows, that taken into custody from the moment of preventive punishment election should be given appointments without restriction of their number and duration with the notary with a view of the certificate of the power of attorney on the right of representation of interests suspected of sphere of enterprise activity;

- Putting on by the Federal act from 08.12.2003 № 161-FZ on the state bodies and officials of a duty on taking into custody change on softer measure at revealing at the heavy disease suspected or convicted of committing a crime interfering its holding in custody and certificated by medical evidence, taken out by results of physical examination. There was a target date for decision-making on taking into custody change (not later than 3 days from the date of receipt to them from places of holding in custody of a copy of medical evidence) later. All it has been provided in ch. 1.1 items 110 UPK the Russian Federation;

- Occurrence in ch. 1.1. Item 108 UPK the Russian Federation of the list of crimes, charge or suspicion in which does not give the basis for use concerning [37 [38] persons of taking into custody if the conditions listed ch are not observed. ch. 1-4 items 108 UPK РФ1.

It only some examples confirming a course of the legislator on strengthening of maintenance of laws of procedure held in custody or serving time in the form of imprisonment. And, judging by approving statements of scientists, efforts of the legislator in the designated direction are not vain. So, with reference to maintenance of laws of procedure of arrested persons S.B.Rossinsky and T.J.Vilkova consider, that the built system as a whole is rather effective [39 [40] [41].

As to maintenance of laws of persons which are exposed to taking into custody questions of its further optimisation continue to be discussed in the scientific environment. It is possible to judge it under corresponding offers of some authors in the field of current legislation perfection. These offers, anyhow, are connected with introduction new pravoobespechitelnyh the means applied to the considered category of participants. So, V.I.Rudnev suggests to provide in UPK the Russian Federation taking into custody application only after indicting as it takes place in some foreign countries (Poland, Kyrgyzstan, etc.).

D.S.Ustinov proves necessity of fastening in ch. 1 item 108 UPK the Russian Federation positions according to which taking into custody application to the persons convicted of fulfilment of crimes of small and average weight, should be applied only in case they have broken measure earlier selected concerning them пресечения1. A.O.hare suggests to include in the maintenance of item 108 UPK the Russian Federation position according to which the material breach of the criminal procedure law leading to cancellation of the decision about election of a preventive punishment in the form of taking into custody, it is necessary to recognise leaving by the judge without check of validity of suspicion (charge).

N.V.Spesivov considers necessary addition ch. 2 items 108 UPK the Russian Federation the list of cases at which taking into custody of the minor suspects convicted is supposed, committed a crime of average weight. I.S.Trojnina, on the contrary, proves an exception from ch. 2 items 108 UPK the Russian Federation positions that taking into custody can be selected concerning minor suspected or convicted of fulfilment of crimes of average weight [42 [43] [44] [45]. It is obvious, that the specified offers are directed on strengthening of security of minors, especially when there is a question on election of a preventive punishment [46]. This tendency is traced and in the current legislation. So, taking into custody is not applied to the minor is more younger 16 years, committed a crime of average weight for the first time, as ch. The Russian Federation punishment in the form of deprivation свободы1 forbids to appoint 6 items 88 UK it.

However, in the literature it is a lot of the offers directed on creation of additional guarantees and for full age, if concerning them the decision on taking into custody is made. By the way, they can extend in the designated situation and on persons who have not reached majority.

T.V.Orlova in interests of reduction of terms of the maintenance of defendants under guards recommends: to simplify procedure of selection of jurymen, having reduced their number to seven (plus two spare); to improve the procedure in court with participation of jurymen according to gl. 42 UPK the Russian Federation, having provided joint removal in the deliberation room of the chief judge and jury for discussion of proofs, votings by the questions containing in voprosnom sheet, and renderings verdict [47 [48] [49]. M.N.Zatsepin is defended by opinion that in ch. 2 items 6.1 UPK the Russian Federation should be considered a rule according to which holding in custody prolongation is possible only in the presence of the exclusive circumstances defined taking into account criteria, listed regarding the third specified article. V.V. Nikoljuk considers expedient to formulate on the basis of chapter 18 UPK the Russian Federation positions, «called to regulate the basis and a compensation order condemned the harm caused as a result of illegal holding in custody at illegal cancellation of probation (for example, the sums paid in connection with rendering of a legal aid, transport services, restoration of laws of master and servant)» 1.

Unfortunately, not all offers existing in the literature on modernisation of an order and application conditions to the person of restriction of freedom should be regarded as a step towards maintenance of laws of procedure held in custody or serving time in the form of imprisonment. In this context it makes sense to mention A.S.Kirilova's offer on addition of a part 1 item 108 UPK the Russian Federation point of the following maintenance: « 5) the suspect is embodied at the moment of committing a crime by means of means of photo-video of fixing ». The given position will allow to reduce the disputable moments and infringements upon illegal application of taking into custody [50 [51]. We do not think, that the given condition of election of taking into custody will create additional guarantees of maintenance of the rights suspected and convicted. Besides this basis"is beaten out"from subjects by which the circumstances specified in items are subordinated. 1-4 ch. 1 items 108 UPK the Russian Federation. If them to analyse, it is visible, that all of them directly are connected not with an establishment of guilt of the person, as the basis offered A.S.Kirilovym. The specified circumstances testify only to difficulties which can negatively affect a timely appearance of the person suspected and convicted on a call in which manufacture there is a criminal case.

The tendency to strengthening of maintenance of criminal procedures of participants of the criminal trial which is in conditions "nesvobody", develops with the account not only similarity existing between them, but also distinctions. neidentichnost the specified participants of the criminal trial speaks distinction in remedial character of restriction of freedom applied to them, and, as consequence, the different locations during the period when such restriction operates concerning them. One «are in holding in custody places: investigatory insulators of criminally-executive system; temporary detention facilities of suspected and convicted law-enforcement bodies; temporary detention facilities of suspected and convicted boundary bodies of federal security service; in premises which are defined by captains river and the Courts of Admiralty which are in long voyage or chiefs of winterings in absence of transport communications with winterings; In the establishments of criminally-executive system executing punishment under criminal law in the form of imprisonment only in cases, provided by the federal act »(item 7 of the Federal act from 15.07.1995 № 103-FZ). Others - in places of enduring the punishment in the form of imprisonment to which article 73 of the Criminally-executive code of the Russian Federation [52] carries correctional facilities. If to be more exact the persons who are serving time in the form of imprisonment, can be in:« Colonies-settlements; corrective colonies of the general mode; corrective colonies of a strict mode, corrective colonies of a special mode; educational colonies; in prisons; medical correctional facilities; in investigatory insulators, in cases when investigatory insulators carry out function correctional facilities concerning the following condemned: the works left for performance on economic service; in which relation the court sentence has entered validity and which come under to a direction in correctional facilities for enduring the punishment; moved from one place of enduring the punishment in another; left in an investigatory insulator or translated in an investigatory insulator in an order established by item 77.1. Wick the Russian Federation; left in investigatory insulators from their consent if term to which they are condemned, does not exceed six months (ch. 1 items 74 Wick the Russian Federation) »1.

In due time I.JA.Fojnitsky, differentiating podsledstvennoe detention and the retaliatory conclusion, wrote: «the Person on remand has against itself only the suspicion requiring check. Naturally, as its position during detention is established by limits of this danger: the state can constrain its freedom of movement, but it has no right neither to its work, nor to its advantage and a reputation, even on the right of its intercourse with an external world if it is not accompanied by danger of runaway» [53 [54] [55].

Noted by the classic of a criminal procedure science difference of various categories of persons, podvergshihsja to freedom restriction, finds today the acknowledgement in normative acts, and first of all in the Organic law of our state. So, it agree ch. 3 items 32 of the Constitution of the Russian Federation containing in the places of confinement on a sentence of court have no right to be selected and be the elite. UPK the Russian Federation also differentiates considered categories of persons, allocating with their time different criminal procedures. We will result only some examples. Only the person held in custody, has a right to clearing after 48 hours from the moment of detention if concerning it taking into custody or court was not applied has not extended detention term in an order established by point 3 of a part of seventh article 108 UPK the Russian Federation (ch. 2 items 94 UPK the Russian Federation). It also posesses the right to count on indicting not later than 10 days from the moment of detention if the suspect has been detained, and then is taken into custody (ch. 1 items 100 UPK the Russian Federation), and the right of appeal in an appeal order the decision of the judge about election as a taking into custody preventive punishment (ch. 11 items 108 UPK the Russian Federation).

These possibilities are absent at serving time in the form of imprisonment. But last is allocated by possibility to appeal against a court sentence in cassation (item 401.2 UPK the Russian Federation) and supervising (ch. 1 items 412.1 UPK the Russian Federation) instances. It has possibility to address in court with request to transfer it for enduring the punishment in the state which citizen it is (item 469 UPK the Russian Federation). And already these rights serving time in the form of imprisonment cannot belong to the person in any way, held in custody.

Distinction in laws of procedure held in custody and serving time in the form of imprisonment causes netozhdestvennost their remedial status.

The current legislation allows to approve, that held in custody can sojourn in the status of the suspect (item 91 item, 108 UPK the Russian Federation), convicted of the value fixed by a part 1 item 47 UPK the Russian Federation (item 108 UPK the Russian Federation), the defendant (item 255 UPK the Russian Federation); the person enquired to delivery (item 466 UPK the Russian Federation); the person transferred as it should be ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call (item 456 UPK the Russian Federation); condemned, expecting transfer for enduring the punishment in the state which citizen it is (item 469 UPK the Russian Federation); condemned, disappearing with a view of evasion from enduring the punishment in the form of the penalty, obligatory works, correctional labour or freedom restriction (item 18 of item 397 UPK the Russian Federation); condemned to imprisonment with enduring the punishment in a colony of the settlement which have not arrived to a place of enduring the punishment (item item 18.1 397 UPK THE RUSSIAN FEDERATION).

And measures applied to named persons ugolovnoprotsessualnogo the compulsions causing their further holding in custody, it is separated. So, to the convicted taking into custody is applied and detention is not applied. And the suspect, the person enquired to delivery can be subjected detention. Thus both concerning the suspect, and concerning the person enquired to delivery, taking into custody can be selected. To condemned, disappearing with a view of evasion from enduring the punishment in the form of the penalty, obligatory works, correctional labour or freedom restriction, and condemned to imprisonment with enduring the punishment in a colony-settlement, not arrived to an enduring the punishment place, also it can be applied both detention, and taking into custody. However of criminal procedure essence of detention and taking into custody condemned, evading from enduring the punishment, among authors disputes are led. Ambiguities with detention of such persons much more, than with taking into custody. It is connected by that UPK the Russian Federation, fragmentary reacting to taking into custody condemned, evading from enduring the punishment, in any way does not regulate a question on application to it of detention. A consequence of such situation are absolutely opposite sights of scientists at such kind of detention. One recognise as its remedial detention and suggest to regulate separately in the law of its basis, a condition and an order [56]. Others call in question criminal procedure character of detention condemned, evading from enduring the punishment, approving, that it is the coercive measure of criminally-executive character as it is provided only Wick РФ1. According to V.V. Nikoljuka, such detention takes place, when criminal procedure activity is finished [57 [58] [59].

However other authors defends an opposite position. So, L.V.Lozhkin considers necessary to settle criminally - rules of procedure «a remedial order of detention condemned, is malicious evading from enduring the punishment in the form of the penalty, obligatory and correctional labour or freedom restriction». In our opinion, to it there are bases.

First, detention condemned, evading from enduring the punishment under the circumstances specified in items. 18 and 18.1 items 397 UPK the Russian Federation, necessarily precede taking into custody of such condemned. Under such circumstances taking into custody condemned, evading from enduring the punishment, is logic continuation of its detention. Not without reason in a number of articles Wick the Russian Federation is noticed, that after detention condemned court according to article 397 UPK the Russian Federation applies to it taking into custody (ch. 7 items 58, ch. 5 items 60.2, ch. 7 items 75.1).

And as criminal procedure norms react to such taking into custody also detention condemned, evading from enduring the punishment, also should be regulated in UPK the Russian Federation. Such addition of a regulation of detention with Russian Federation already existing to Wick condemned, evading from enduring the punishment, will promote a transparency of the mechanism of application of the specified coercive measure to such persons and strengthening of maintenance of their rights.

Secondly, a criminal trial component is the stage of execution of sentence. Means, and the activity which is carried out in it, including detention and taking into custody condemned, evading from enduring the punishment, too should have criminal procedure character, and, hence, should be settled properly criminally - rules of procedure.

Thirdly, as practice shows, is frequent at detention of the searched condemned the process-verbal of detention as item 91 UPK the Russian Federation as the given document is the unique basis for a premise of arrested persons in ИВС1 was executed. The given fact admits also the authors denying criminal procedure character of detention condemned, evading from enduring the punishment. Means, the requirement in ugolovnoprotsessualnom regulation of the given kind of detention at pravoprimenitelja exists.

Fourthly, detention condemned, evading from enduring the punishment as well as any other kind of detention, cannot last more than 48 hours. On it focuses item 22 of the Constitution of the Russian Federation. And even Wick the Russian Federation providing possibility of prolongation of detention till 30 days (ch. 2 items 30, ch. 4 items 32, ch. 4 items 46, ch. 6 items 58, ch. 2 items 60.17, ch. 6 items 75.1, ch.), the constitutional rule as in the same norms Wick the Russian Federation is spoken about prolongation only court cannot cancel 9 items 178.1. In remedial language it is called as election concerning the condemned taking into custody. As the specified positions Wick not korrespondirujutsja with positions of item 397 UPK the Russian Federation in which there are no instructions that [60 [61] court is authorised to extend condemned term of detention till 30 days, L.J.Budanovoj obosnovanno is offered to be excluded the Russian Federation from ch. 2 items 30, ch. 4 items 46 Wick the Russian Federation a phrase: « The given term can be extended court till 30 days », and from ch. 6 items 58 Wick the Russian Federation - a phrase:« the Specified term can be extended court till 30 days »1.

Thus, condemned, evading from enduring the punishment which are detained and taken into custody, too concern a category of the participants who are held in custody or serving time in the form of imprisonment.

As already it was spoken earlier, the legislator is not always consecutive in a regulation of the remedial status of the persons which freedom is limited. It is a question of the persons held in custody. It is necessary to tell, that the law connects holding in custody first of all with application to the person of taking into custody (item 108 item, 109 UPK the Russian Federation). Probably, therefore in item 42 of item 5 UPK the Russian Federations, opening concept "holding in custody", to number of the subjects who are in such conditions, concern suspected and convicted - participants to whom the specified preventive punishment more often is applied.

However there are also other persons whom the given preventive punishment can concern, "preventive punishment" not considered in definitions, the "taking into custody", the authors formulated nearby which has extended them only on cases of application of a preventive punishment to convicted and the suspect [62 [63].

It is a question of the person transferred as it should be ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call; condemned, evading from enduring the punishment under the circumstances reserved in items. 18 and 18.1 items 397 UPK the Russian Federation. Concerning such persons it can be applied both detention, and taking into custody. Moreover, they according to the current legislation possess the status of the participant of the criminal trial. So, the person transferred as it should be ch. 5 items 456 UPK the Russian Federation, can participate in criminal case, manufacture on which is carried out in territory of the Russian Federation, as the witness. The legislator speaks about an accessory of the criminal trial condemned to participants in ch. 2 items 47 UPK the Russian Federation, ranking it to convicted in which relation the verdict of guilty is taken out.

Means, according to the logic of things, and these participants should be specified in item 42 of item 5 UPK the Russian Federation along with suspected and convicted. In this connection the requirement for modification of the specified norm is obvious. Considering, that the concept convicted in the broad sense of the word includes not only a word convicted in the true sense, but also the defendant and condemned (ch. ch. 1, 2 items 47 UPK the Russian Federation), we believe, that the following text of point 42 of item 5 UPK the Russian Federation would be more comprehensible: « 42) holding in custody - stay in an investigatory insulator or other place defined by the federal act, the person detained on suspicion in committing a crime, or convicted to which the preventive punishment in the form of taking into custody is applied, or the person transferred as a part of fifth article 456 of the present Code on territory of the Russian Federation by competent body or the official of the foreign state for fulfilment of actions, specified in inquiry about a call, or condemned, evading from enduring the punishment; ».

Observance of the requirement of completeness at creation in UPK the Russian Federation of the list of the persons held in custody, is especially important for correct delimitation of object pravoobespechitelnoj the activity which is carried out concerning these persons. After all the object covers laws of procedure of all held in custody or serving time in the form of imprisonment. Held in custody or serving time in the form of imprisonment, the separate paragraph will be devoted more detailed studying of object of maintenance of laws of procedure.

Taking into account all considered signs pravoobespechitelnoj the activity which is carried out concerning held in custody or serving time in the form of imprisonment, it is possible to offer following definition: maintenance of the rights of the person who are held in custody or serving time in the form of imprisonment, is answering to criminal trial appointment the activity of inspectors guaranteed by the law, investigators, heads of the organ of inquiry, the chief of division of inquiry, the chief of agency in charge of preliminary investigation, the public prosecutor, court on creation by means of statutory means of real possibilities for realisation being in conditions nesvobody (in places of holding in custody or in the places of confinement) laws of procedure to the suspects convicted, the defendants condemned, enquired to delivery by the person, and the person transferred according to ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call.

It is important to mean, that the made definition calculated on pravoobespechitelnuju activity, opens only one side of maintenance of laws of procedure held in custody or serving time in the form of imprisonment. At the same time maintenance of laws of procedure held in custody or serving time in the form of imprisonment is:

- Version of the legal relations arising between the state bodies and held in custody or serving time in the form of imprisonment. The given legal relations are generated by requirement of the participants sojourning in conditions nesvobody, for maintenance of the criminal procedures;

- System of the norms regulating named activity and legal relations. These legal phenomena inevitably accompany pravoobespechitelnoj to activity for legal relations act as the form of its realisation, and norms - a legal basis of maintenance of laws of procedure held in custody or serving time in the form of imprisonment. The given circumstances also are necessary for considering.

In conclusion of the first paragraph it is possible to draw following conclusions:

1. Maintenance of laws of procedure held in custody or serving time in the form of imprisonment is the many-sided legal phenomenon presented pravoobespechitelnoj by activity, the legal relations arising concerning it, and system of the criminal procedure norms regulating given activity and legal relations.

2. In one of the values maintenance of laws of procedure held in custody or serving time in the form of imprisonment sees as the state activity possessing following signs: answers criminal trial appointment; it is guaranteed by the law; it is carried out by the state bodies and officials from among inspectors, investigators, heads of the organ of inquiry, the chief of division of inquiry, the chief of agency in charge of preliminary investigation, the public prosecutor, court; it is concentrated on creation of real possibilities for realisation being in places of holding in custody or in the places of confinement to the suspects convicted, the defendants condemned, enquired to delivery by the person, and the person transferred according to ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call, the rights given to it; It is carried out by means of statutory means.

3. The Inspector-criminalist, the head of investigatory group, the head of group of investigators along with court, the public prosecutor, the inspector, agency in charge of preliminary investigation, the chief of agency in charge of preliminary investigation, the head of the organ of inquiry and the chief of division of inquiry concern the subjects providing the rights of participants of the criminal trial, including and what sojourn under guards and in the places of confinement.

4. The standard position containing in item 42 of item 5 UPK the Russian Federation and devoted to holding in custody, demands addition at the expense of inclusion in the list of persons on which it extends, condemned, evading from enduring the punishment, and the person transferred as it should be ch. 5 items 456 UPK the Russian Federation on territory of the Russian Federation competent body or the official of the foreign state for fulfilment of the actions specified in inquiry about a call.

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A source: 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

More on topic § 1. Concept and subjects of maintenance of criminal procedures held in custody or serving time in the form of imprisonment:

  1. § 2. Criminal procedures held in custody or serving time in the form of imprisonment as object obespechitelnojthe activity which is carried out concerning them
  2. § 2. Maintenance held in custody or serving time in the form of imprisonment of the right to reasonable term of the criminal trial and a personal immunity
  3. § 1. Maintenance held in custody or serving time in the form of imprisonment of the right of defence
  4. 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
  5. § 3. Maintenance held in custody or serving time in the form of imprisonment of the right to respect of honour and advantage of the person
  6. § 4. Maintenance held in custody or serving time in the form of imprisonment of the right to the appeal of legal proceedings (inactivity) and decisions
  7. the CHAPTER II. PROBLEMS of REALIZATION of GENERAL DIRECTIONS PRAVOOBESPECHITELNOJ of the ACTIVITY which is CARRIED out Concerning held IN CUSTODY OR SERVING TIME In the form of IMPRISONMENT
  8. the CHAPTER I. CONCEPT, BASIC ELEMENTS of MAINTENANCE of CRIMINAL PROCEDURES held IN CUSTODY And In the PLACES OF CONFINEMENT
  9. 3.1. Criminally-executive measures of encouragement for condemned, serving time in the form of freedom restriction
  10. Criminally-executive disciplinary measures for condemned, serving time in the form of freedom restriction
  11. 1.1. Essence, the maintenance and the form of punishment under criminal law in the form of arrest
  12. § 3. Features of educational influence on condemned, serving time for plurality of crimes
  13. § 2. Tendencies of reforming and prospect of development of the organisation of execution of punishment in the form of imprisonment
  14. § 4. The elements of the criminal procedure form directed on maintenance of safety of information technologies
  15. § 2. Concept and essence of criminal procedure proving taking into account features of representation of the information on the facts in electronic form