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§ 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

One of kinds of maintenance of the general laws of procedure held in custody or serving time in the form of imprisonment is maintenance of their right to reasonable term of the criminal trial. The granted right following from a principle, fixed in item 6.1 UPK the Russian Federation, admits and for other participants of criminal legal proceedings \However a part the first specified article is especially essential and important persons for a considered category.

According to the norm fixed in it prolongation of terms of the criminal trial can be in cases and in an order, provided UPK the Russian Federation. At the same time criminal prosecution, awarding punishment and the criminal prosecution termination should occur in reasonable term.

In spite of the fact that item 6.1 has been entered in UPK the Russian Federation in 2010, pravoprimenitel and has not learnt to fulfil requirements containing in it irreproachably. As a result non-observance of a principle of reasonable term is widespread infringement of the criminal procedure law in modern pravoprimenitelnoj to practice. The given problem was mentioned time and again in reports of the Prosecutor General of the Russian Federation. In this occasion in

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One of its reports it was noticed, that growth of a share of the criminal cases ended with excess of term, statutory, gets menacing scales (every third business in law-enforcement bodies, and in Investigatory committee - every second). And in the report of the Prosecutor General of the Russian Federation on a legality and law and order condition in 2015 at session of the Federation Council of Federal assembly of the Russian Federation the attention that an essential lack continues to remain for - [121] tjazhnoj character of a consequence has been paid. The quantity of the criminal cases investigated by inspectors of all departments in time over statutory, remains high (growth on 5 %, 186 thousand) \In 2016 the Prosecutor General of the Russian Federation in the report on a legality and law and order condition has expressed anxiety concerning the rest of the neoterminated affairs with term of investigation over 3 years. In 2016 their number with reference to Investigatory committee has constituted 247 дел2.

However, not only terms of preliminary investigation on criminal cases can clash with the rationality requirement. The situation and with terms of holding in custody of the suspects convicted is similar. The representative under human rights in the Russian Federation in the report has noticed, that in 2016 435 references concerning duration of terms of holding in custody suspected and convicted have arrived, in practice there are cases when the persons which guilt is not established by court yet, are held in custody some years.

Preferring long terms of holding in custody, pravoprimenitel is guided by different circumstances which are considered by it as the unconditional bases to election of taking into custody and prolongation of terms of holding in custody. However the Russian Federation such circumstances frequently "are not entered" in a format of item 97 UPK. Thereby errors and omissions are committed at election of taking into custody and its prolongation which negatively influence maintenance to the suspect, convicted the rights to reasonable term of the criminal trial.

[122 [123] [124]

The specified facts prove to be true the decisions which have been taken out by vessels of appeal instance, considering complaints of applicants to unreasonable election and prolongation concerning them a preventive punishment in the form of the conclusion under стражу1.

To ignore such errors and omissions it is impossible, as as V.L.Grigoryan truly marks, modernisation of any legal mechanism, assumes finding-out and ordering of lacks of it механизма2.

All errors and the omissions typical for election of taking into custody and its prolongation, it is necessary to mete on two big blocks. The first will accumulate in itself(himself) infringements regarding application of the bases of election of the taking into custody, the second - the infringements supposed concerning procedural conditions of election, prolongation of taking into custody and its appeal.

The first group of infringements is connected: with application as the bases of election of taking into custody of circumstances which the legislator do not concern that; with the inadequate argument pravoprimenitelem at acceptance of corresponding decisions of presence of the bases for election of taking into custody concerning the concrete person or their absence.

Application pravoprimenitelem as the bases of election of taking into custody of circumstances which the legislator do not concern that, frequently leads to frank substitution of lawful basises of the specified legal proceeding by the illegal. Such situation is observed in cases: [125 [126]

1) references to weight of the brought accusations as on the basis of election of taking into custody while it along with data on the person suspected or convicted, its age, a state of health, the marital status, an occupation it agree item 99 UPK the Russian Federation concerns the circumstances considered at application of a preventive punishment. To the bases of election of a preventive punishment it agree item 97 UPK the Russian Federation the circumstances which are speaking well for that convicted concern, the suspect can or disappear from agencies in charge of preliminary investigation, preliminary investigation or court; or to continue to be engaged in criminal activity or to threaten the witness, other participants of the criminal trial, to destroy proofs or other by to prevent criminal proceeding. The specified bases are the general and can be supplemented with the special bases of application of the taking into custody, containing in item 108 UPK РФ1. Unfortunately, pravoprimenitel at the decision of a question on election of a preventive punishment in the form of taking into custody first of all to number of the bases for its election carries weight of the committed crime. Such approach has been used at election of the specified preventive punishment concerning citizen O convicted of committing a crime, the provided item "in" ch. 2 items 231 UK the Russian Federation;

2) recognitions as the bases of prolongation of holding in custody of statements of bodies of preliminary investigation that the person does not wish to co-operate with the investigation. During studying of materials of criminal cases we also had to face similar situations. For example, concerning citizen K convicted of committing a crime, provided ch. 2 items 228 UK the Russian Federation. [127 [128] [129]

It is necessary to notice, that behind unwillingness to co-operate with the investigation refusal of the person to recognise the fault quite often disappears. But confession and a cooperation with the investigation are not included at all into its remedial duties, however, as well as other forms of co-operation with a consequence. Other would designate negation of one of the basic postulates of the Russian criminal trial - the onus of proving of charge and a refutation of the arguments resulted in protection suspected or convicted, is assigned to the charge party (ch. 3 items 14 UPK the Russian Federation). Despite it, possibility of application of a preventive punishment continues to remain "trump" in hands of workers of law enforcement bodies and at times unique argument to "force" suspected to admit fulfilment to them преступлений1;

3) recognitions as the bases of prolongation of holding in custody of necessity of the further performance of investigatory actions [130 [131] [132];

4) recognitions as the bases of taking into custody of absence of the defendant in the session of the court, having individual character. The infringements of a similar sort supposed by regional vessels, quite often find out court above. So, Judicial boards on criminal cases of the Kaluga provincial court, considering case in an appeal order, has cancelled the decision of Ljudinovsky regional court and has released K from under guards, having underlined, that its absence in session of the court had on July, 21st, 2016 individual character. In the following session of the court appointed for July, 25th, 2016, the defendant was independently and participated in it;

5) definitions as a basis of decision-making on prolongation of holding in custody of results of operatively-search activity. As truly marks V.V. Konin, the most widespread kind of belief of vessels in necessity to select or extend a preventive punishment in the form of holding in custody - official reports of the operative employees, addressed them руководителю1. The similar phenomenon should be observed sometimes and to us at studying of materials of criminal cases (for example, on criminal case on charge gr. K, convicted of the committing a crime, provided ch. 2 items 228 UK the Russian Federation) [133 [134] [135].

For eradication of similar practice the legislator the Federal act from December, 2nd, 2008 has included in ch. 1 items 108 UPK the Russian Federation position that results operativnorozysknoj the activity cannot be the actual facts laying in the basis of acceptance by the judge of the decision on taking into custody, mismatching requirements of item 89 UPK the Russian Federation.

The inadequate argument pravoprimenitelem presence of the bases for election or prolongation concerning the concrete person of taking into custody is expressed in following actions pravoprimenitelja:

1) neprivedenie vessels of the concrete facts in favour of presence of the bases provided in ch. 1 items 97 UPK the Russian Federation. Holding in custody prolongation is frequently proved by unfounded phrases about legality and validity of a preventive punishment; the social danger made convicted crimes; the information characterising the person; about that, «that the bases for taking into custody« have not disappeared ». The Representative has paid To distribution of similar practice under human rights in the Russian Federation» 1 in due time attention. In such situation the requirement of the decision of Plenum VS the Russian Federation from October, 10th, 2003 № 5 according to which courts are obliged to enlarge holding in custody terms at validity of following circumstances is ignored: the suspects, convicted can continue criminal activity, take cover from preliminary investigation or court or to forge proofs on business, to enter arrangement to witnesses [136 [137] [138] [139]. That is for the given legal proceedings as truly marks V.A.Lazareva, there is a ultimate fact.

Thus the given circumstances should prove to be true authentic data, that is to be real, proved. Deviation from this rule as truly marks A.P.Guljaev, frequently gives to measures at -

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nuzhdenija independent repressive character;

2) ignoring of arguments of the party of protection in favour of taking into custody change on other preventive punishment. As it is truly marked in the literature, ESPCH that in decisions on prolongation of arrest of the judge constantly referred on «absence of circumstances for clearing» reacts. At the same time in the references in the form of petitions and complaints defenders resulted concrete arguments in favour of taking into custody change. But the Russian judges did not consider them. Thus the refutation of such arguments was not carried out [140]. In our opinion, the specified circumstances cause infrequent change of taking into custody on other preventive punishment. So, studying of criminal cases by us has shown, that during pre-judicial manufacture a preventive punishment concerning the suspect, convicted varied in 35 % of cases. Thus change from taking into custody on other preventive punishment was observed on 14 % of criminal cases, and from other preventive punishment on taking into custody - on 21%1.

The infringements supposed concerning procedural conditions of election, taking into custody prolongation, and also its appeal get following forms more often:

1) non-observance of requirements of item 4 of item 5 of the European Convention on urgent consideration of complaints to the decision on taking into custody. As obosnovanno it was marked in the literature, urgency means «not only necessity of observance of the terms established in Russian for -

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konodatelstve, but also their rationality taking into account complexity of business »;

2) nerassmotrenie possibilities of application of an alternative preventive punishment taking into account the individual circumstances, concerning suspected and convicted. By the way, if to consider the Federal act from 18.04.2018 № 72-FZ «About modification of the Code of Criminal Procedure of the Russian Federation regarding election and application of a preventive punishment

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In the form of an interdiction of certain actions, pledge and house arrest »ten - [141 [142] [143] [144] [145] dentsija to a choice of the preventive punishment alternative to taking into custody, amplifies;

3) neukazanie in the substantive provision of the decision of the judge about prolongation of holding in custody of concrete term for which preventive punishment action is enlarged, and final date of this term. The Supreme Court of the Russian Federation on concrete business has specified in inadmissibility similar практики1. Studying of criminal cases has shown, that similar practice up to the end is not got rid. So, on criminal case in the relation gr. S, convicted of the committing a crime, provided ch. 2 items 159 UK the Russian Federation, in the decision of the judge have not been specified concrete term for which action of taking into custody [146 [147] [148] was enlarged;

4) discussion of a question on election, prolongation of taking into custody for lack of the defender. However, sometimes and participation of the defender in the specified procedures does not guarantee appropriate protection of the rights of the person subjected to the specified preventive punishment. It is a question of situations when the defender participating in session of the court does not react in any way to election concerning the client of taking into custody: does not declare petitions, does not bring complaints. What it, how not indifference to destiny of the client?

It is necessary to notice, that on occasion the legislator himself gives an occasion to such situation. For example, in ch. 4 items 399 UPK the Russian Federation are reserved, that the condemned can carry out the rights by means of the lawyer. Thereby the criminal procedure role of the participant of the criminal trial acting on the party condemned, including of to what taking into custody (item 18, 18.1 items 397 UPK the Russian Federation) is applied is underestimated. The person acting on the party condemned, urged to defend interests of the principal on a professional basis. Most effectively to execute this mission it is possible within the limits of criminal procedure function of protection. And for this purpose in the standard form it is necessary to recognise an accessory of this function to the lawyer condemned. The legislator has already made a step to this direction, having provided participation of the defender, instead of the lawyer, «in consideration of the questions connected with execution of sentence». As to ch. 4 items 399 UPK the Russian Federation it, under O.V.Levchenko and A.A.Kamardinoj's fair remark, requires change of the edition assuming replacement of a word of "lawyer" on a word of "defender" 1;

5) wrong calculation of terms of a finding of the person under guards. Concerns less widespread errors which also lead to infringement of a principle of reasonable term of the criminal trial. At the same time in practice it is possible to find the examples illustrating the given problem. So, in the decision of presidium of the Volgograd provincial court № 44u - 17/2016 from 16.03.2016 the attention to wrong definition of the moment from which the imprisonment term under guards ekstradiruemomu L which delivery has been enquired by the Russian state should be estimated has been paid. In the decision of the Volga city court from November, 20th, 2015 it has been decided to estimate an imprisonment term under guards L from the moment of its actual detention. However the presidium of the Volgograd provincial court has come to conclusion about necessity of change of the court decision regarding calculation of the beginning of term of holding in custody and has enacted: To exclude instructions on calculation of term of its maintenance under guards from the moment of actual detention; to consider as the beginning of term of holding in custody of defendant L the extradition moment on territory of the Russian Federation or the detention moment in territory of the Russian Federation. [149 [150]

The given errors and omissions cannot positively influence realisation of a principle of reasonable term which plays not last role in the mechanism of maintenance of laws of procedure held in custody or serving time in the form of imprisonment. That in a root to change the specified situation, it is necessary to review stereotypes which have developed in the Russian practice of election of taking into custody and prolongation of terms of holding in custody. To such stereotypes adherence concerns the big terms of holding in custody. Its overcoming will be promoted by acceptance of the measures directed on reduction of terms of holding in custody. Thereupon fastening in the law of position on differentiation of terms of holding in custody depending on weight made преступления1 will be useful. For example, in a situation when the person is convicted of fulfilment heavy or especially grave crime, term of its holding in custody can be big, than on charge in a crime which is not heavy. Certainly, it is impossible to equalise term of holding in custody of thefts convicted of fulfilment and convicted of premeditated murder fulfilment. These terms depending on a category of crimes should be various, at least in preliminary investigation.

Moreover, some authors consider, that in UPK the Russian Federation it is necessary to fix a rule that taking into custody of the persons convicted of fulfilment of crimes of small and average weight, it is necessary to apply only in case of infringement by them before the preventive punishment applied to them [151 [152]. The given statement in a certain measure will be adjusted with a course of the legislator on the criminal policy liberalisation, one of which displays is inclusion in text UPK the Russian Federation of item 25.1 and chapter 51.1, devoted to questions of manufacture on appointment of the judicial penalty at clearing of the person of the criminal liability. According to A.J.Epihina, the given short stories as a whole should make positive impact on process of decrease in quantity condemned, directed to deprivation places свободы1.

So, the establishment of different terms of holding in custody depending on magnitude of offence can really promote reduction of terms of holding in custody of considerable number of the persons involved in the criminal liability. In favour of this measure testifies and the combined investigatory practice to finish investigation of crimes of small and average weight before the expiration of two months of the maintenance convicted under guards, that is in the smaller term provided criminally - the law of procedures. For this reason it is difficult to agree with opinion that two-month term of holding in custody by preliminary investigation manufacture does not answer a principle of reasonable term of the criminal trial of that is not enough this time for investigation of a crime [153 [154] [155]. As in some countries for achievement of the specified purpose manage smaller terms. So, according to the item 109 UPK Iraq taking into custody is possible for the term up to 15 days, then this term can be enlarged for 15 days repeatedly till 6 months under the decision

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The investigatory judge.

One more way of optimisation of terms of holding in custody from a rationality position is the establishment of maximum permissible terms of holding in custody at judicial stages of the criminal trial. Unlike pre-judicial manufacture where holding in custody term is limited to 18 months (ch. 3 items 109 UPK the Russian Federation), at a stage of judicial manufacture are absent now the top limit of holding in custody of defendants on affairs about heavy and especially grave crimes. It is not specified in the law and the general duration of proceeding. According to ch. 3 items 255 UPK the Russian Federation «court in which manufacture there is a criminal case, after 6 months from the date of criminal case receipt in court have the right to extend term of the maintenance of the defendant under guards. Thus holding in custody prolongation is supposed only on criminal cases about heavy and especially grave crimes and each time no more than for 3 months».

Some authors consider, that the given rule does not require revision. In this connection it is noticed, that «duration of proceeding of criminal case in the trial court cannot be regulated in the law owing to features of each business. Other would mean to tyre out judicial manufacture in prokrustovo a bed» 1.

Hardly it is possible to agree with such conclusion. Absence in UPK the Russian Federation of deadlines of holding in custody of defendants essentially limits their right to freedom and breaks a personal immunity principle. Definition of limiting time borders of proceeding and holding in custody of defendants would mean an establishment of a limit of a condition of uncertainty in which there is a person because of [156 [157] shown to it criminal обвинения1. Consequences of the given measure will be rather positive for the mechanism of maintenance of laws of procedure held in custody or serving time in the form of imprisonment. So, V.V. Truhachev not without justification notices, that pravoprimeniteli would be sorientirovany in time borders of realisation of proceeding and by that would be more disciplined in respect of performance of the professional duties, and in case of non-observance by the official of deadlines of proceeding it would be possible to count on its attraction to disciplinary otvetst - vennosti [158 [159].

How the limiting time border of holding in custody of defendants should look? E.V.Zolotar suggests to provide a deadline of holding in custody to the decision sentence court - 1 year [160]. More optimum in a context of the given question A.P.Sheremetev's offer looks to limit «terms of holding in custody in proceeding the same as it is provided concerning a stage of preliminary investigation. That is term should not exceed 12 months on grave crimes and 18 months on especially heavy» [161].

Let's notice, that results of the interrogation spent by us on the given question show, that the majority of the interrogated inspectors (74 %), public prosecutors (70 %), lawyers (85 %) has supported realisation of the given offer in practice. At the same time the majority of the interrogated judges have negatively concerned the specified offer, apparently, having regarded the specified offer as an encroachment on independence of judges.

One more measure is required that maintenance of the right to reasonable term of the criminal trial has got real outlines. It is a question of inclusion in number of circumstances which will be significant for definition of reasonable term of the criminal trial and which are already provided ch. 3 items 6.1 UPK the Russian Federation, term of a finding of the suspect convicted under guards. In favour of it says that infringement of a principle of reasonable term of the criminal trial occurs on those affairs where the convicted were in custody to what practice ESPCH testifies also. Held in custody and serving time in the form of imprisonment more often the others address in ESPCH for protection of the rights with complaints. In them they mainly refer to infringement of reasonable term of the criminal trial, on unreasonable election and holding in custody prolongation.

The instructions on duration of holding in custody in item 6.1 UPK the Russian Federation will underline importance of the given circumstance for the legislator, the attention of court and law enforcement bodies will draw to validity of prolongation of holding in custody, eventually will deepen tendency which has already outlined in the literature to expansion of system of the circumstances considered at definition of reasonable term of the criminal trial. So, in the literature already there was an offer to add the list of criteria of definition of reasonable term with position about value of an operative legal investigation for заявителя1. In the specified context in 2016 the Russian Federation a part 3.3 has been added by item 6.1 UPK. [162 [163]

Persons who took part in interrogation spent by us, in the majority have estimated positively offer to carry to the circumstances considered at definition of reasonable term of the criminal trial and stated in item 6.1 UPK the Russian Federation, duration of holding in custody. For it 53 % of inspectors, 64 % of public prosecutors, 68 % of judges, 85 % адвокатов1 have expressed.

The told allows to formulate following addition in ch. 3 items 6.1 UPK the Russian Federation: before words «and the general duration of the criminal trial» to include words «duration of the maintenance of the suspect convicted under guards».

However, on it correction of item 6.1 UPK the Russian Federation should not come to the end. With a view of strengthening of remedial aspect of a corresponding principle, the requirement in which follows, first of all, from the maintenance of item 6 UPK the Russian Federation, it is necessary, as fairly offers S.B.nekenova, to reflect in ch. 1 items 6.1 UPK the Russian Federation the requirement that to the persons participating in criminal case as the parties, the right to reasonable term of legal proceedings is provided. The given position should replace nowadays provided ch. 1 items 6.1 UPK the Russian Federation a rule that the criminal trial occurs in reasonable term.

Maintenance held in custody and in the places of confinement of the right to reasonable term is difficult for considering out of communication with maintenance of their right to a personal immunity. After all the criterion of a rationality of term is used by the legislator for border definition behind which restriction of the right on a personal immunity will be illegal. So, at detention it agree ch. 1 items 10 UPK the Russian Federation "Personal immunity" it is necessary to be guided by the term which duration should not be more than 48 hours. With reference to imprisonment, holding in custody, and also with reference to a premise in the medical organisation, okazy - [164 [165] vajushchuju medical aid in stationary conditions, or in the medical organisation rendering the psychiatric help in stationary conditions, a part the Russian Federation speaks 2 items 10 UPK about the term fixed in UPK the Russian Federation, and inadmissibility of its excess.

The analysis of some criminal procedure norms (item 10 item, 91, 108, 466 UPK, etc.) allows to approve the Russian Federation, that held in custody and in the places of confinement cannot possess the right to a personal immunity. After all, as it is truly marked in the literature, such right assumes «a condition of the person at which its psychophysical integrity and an autonomy of the person are free from compulsion» 1, and, means, «the person at any moment can take advantage of the personal liberty» [166 [167]. As the considered category of participants of the criminal trial is not free from compulsion with reference to them pertinently to speak about the right to that their inviolability has been legally limited.

Unfortunately, realisation of the granted right has grown in the whole problem. Pravoprimenitel, observing formalities at restriction of freedom of participants of the criminal trial, quite often tries to deform sense of standard positions about terms of such restriction. As well as possible it can be tracked in practice of application of detention. Widespread infringement of legality in this area is the artificial increase in actual term of detention at the expense of application before criminally - remedial detention of administrative detention, ostensibly in connection with fulfilment by the person of is administrative-legal infringement. It proves to be true and data of interrogation of lawyers and condemned. The following attention to the question has been brought them: whether there was in their practice and in a life an administrative detention of suspects before criminally-remedial detention? It is indicative, that 70 % of lawyers, 64 % of judges, 50 % of public prosecutor's workers, 67 % of heads of organs of inquiry, 59 % of inspectors, 62 % of investigators have answered the given question положительно1.

During studying of the criminal cases considered by regional vessels during the period with 2012 on 2017, it has been established, that on 10 % of affairs ugolovnoprotsessualnomu detention was preceded by administrative detention. It was shown that the person was delivered in a part of police on duty. However the detention report in criminally-remedial order was not constituted, and the official report about dostavlenii the detained person in a part on duty [168 [169] was constituted. On the specified data of Office of Public Prosecutor, about detention nobody was notified, including relatives of the person which has been detained.

Time of a finding of the detained person in such position was not considered, though after it dostavlenija in police the process-verbal on administrative detention according to requirements KoAP the Russian Federation should be executed. But also such reports were not always constituted. Only after some days the process-verbal on criminal procedure detention was executed, and detention time in it was specified without the account of a finding of the person in position of the arrested person in OVD. Thus persons deliberately were late administratively for the purpose of illegal increase in term of criminal procedure detention.

In similar situations supervision from the public prosecutor as legal documents give to it the bases is especially necessary. So, according to item 1.4 of Instructions of the Prosecutor General of the Russian Federation from November, 9th, 2011 № 392/49 public prosecutor to reveal and bar infringements of the rights of citizens, is obliged «to establish conformity of time of detention specified in the report with actual, to study necessary materials, including official reports of employees of the law enforcement bodies which have made detention; to compare data on drawing up of reports of detention of suspects directly after the expiry of the term of their arrest for administrative violations; to carry out other verifying actions» 1.

It is necessary to tell, that as regards efficiency procurator's supervision in this area successfully surpasses various kinds of the remedial control (departmental, judicial).

And in spite of the fact that studying of the norms regulating maintenance of legality in places of the compulsory maintenance suspected and convicted, specifies it in secondariness of procurator's supervision in relation to the judicial review.

Such situation that the considerable volume of actions on elimination of infringements of legality all the same continues to be in conducting the public prosecutor which, as well as earlier, remains a key figure in maintenance of legality of the maintenance of persons under guards [170 [171] [172] speaks. At the same time separate authors consider, that the existing circle of powers of the public prosecutor should be subordinated, first, the purposes of maintenance of the rights and freedom of the person and the citizen which it is necessary fix the Russian Federation in item 37 UPK, secondly, the system of powers of the public prosecutor should to be expanded. Reforming of the remedial status of the public prosecutor is impossible without change of mutual relations of the public prosecutor and the head of the organ of inquiry. An optimum variant of such transformation is E.N.Grinjuk's offer to make obligatory for the inspector and its head «requirements about elimination revealed by the public prosecutor during supervising activity of law-breakings» 1. The integral companion of the specified measure, in our opinion, is the offer of some authors about granting to the public prosecutor of the right of excitation before court of the petition for election, change or taking into custody cancellation. In this connection Since Ryabinin necessity of entering of respective alterations for item 221 and item 226 UPK proves the Russian Federation. Other authors [173 [174] [175] adhere to similar opinion also. Some steps to this direction are made by the legislator. So, in 2012 in item 221 UPK the Russian Federation has been included ch. 2.1, granting the right to the public prosecutor to whom criminal case with the bill of particulars has arrived from the inspector to initiate before court the petition for holding in custody prolongation if it sees, that by the moment of a direction of criminal case in court holding in custody term appears court of the requirements specified in ch insufficient for performance. 3 items 227 UPK the Russian Federation. Thereby, as it is truly marked in the literature, conflicts between inspectors and the supervising public prosecutors, caused by returning of criminal case to the inspector for holding in custody prolongation for the reasons specified now in ch have been excluded. 2.1 items 221 UPK the Russian Federation [176].

At the same time there are not resolved other conflicts between the public prosecutor and the inspector, the takings into custody caused by election. Especially it is characteristic for a situation when the public prosecutor does not consider it necessary to support arrived from the inspector in court the petition for election of a preventive punishment in the form of taking into custody. An exit from such situation have offered S.P.ShCherba and A.V.popova. Authors not without justification consider possible to invest with powers: to the public prosecutor participating in session of the court, «to withdraw the petition of the inspector from consideration of court or to declare the termination of consideration of the petition» 1; to court «to cease manufacture under the petition declared by the inspector» [177 [178] [179].

We believe, that steps offered by authors to a direction of granting to the public prosecutor of the additional powers connected with election, change or taking into custody cancellation, will promote increase of efficiency of procurator's supervision in this area. It speaks that the public prosecutor allocated with such powers, can prevent legality infringements, not waiting the session of the court devoted to questions of election of taking into custody and its prolongation. It is remarkable, that the offer on investment of the public prosecutor with power on excitation before court of the petition for election, change or taking into custody cancellation has supported not only the majority of public prosecutors, that is quite predicted (82 %), but also the majority of inspectors (57 %) and judges (64 %).

However correction requires not only an order of restriction of the right of the person on inviolability, but also other criterion of an estimation of legitimacy of such restriction. It is a question of the bases of restriction of the right of the person on inviolability. Among them the special attention is deserved by the basis of detention of the person. In our opinion, they are not completely reflected in item 91 UPK the Russian Federation. So, in it the basis of detention condemned, disappeared with a view of evasion from enduring the punishment in the form of the penalty, obligatory works, correctional labour or freedom restriction, and also condemned to imprisonment with enduring the punishment in a colony-settlement, the instruction which have evaded from reception provided by a part of first article 1 Wick to the Russian Federation, or the enduring the punishment which have not arrived to a place in the term established in the instruction is not considered.

In a context of criminal procedure relations the basis of the detention previous taking into custody, according to items. 18. And 18.1 items 397 UPK the Russian Federation will be maintenance of execution of sentence. This purpose also it will be necessary to fix the Russian Federation in item 91 UPK. Besides the similar purpose - maintenance of execution of sentence - is already provided ch. 2 items 97 UPK the Russian Federation for election of taking into custody concerning the persons specified in items. 18. And 18.1 items 397 UPK the Russian Federation. It is thought, such approach of the legislator is quite reasonable despite criticism from the separate scientists, offering to exclude from the criminal procedure law maintenance of execution of sentence as the purpose of election of taking into custody [180].

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

- Maintenance held in custody and being in the places of confinement of the right to reasonable term should be considered in a close connection with maintenance of their right to a personal immunity as the criterion of a rationality of term is used by the legislator for border definition behind which restriction of the right on a personal immunity will be illegal;

- Application by officials of criterion of a rationality to definition of term of the criminal trial and, in particular, term of the maintenance of the suspect convicted under guards should be considered as the important remedial means used during maintenance ugolovnoprotsessualnyh of the rights held in custody and in the places of confinement. A legal ground for such conclusion first of all are item 6.1 UPK the Russian Federation, one of which corrected (provided by a part of the third) it is necessary to correct by replenishment of the circumstances fixed in it considered at definition of reasonable term of the criminal trial, duration of the maintenance of the suspect convicted under guards;

- Typical errors and the omissions supposed at election, conclusion prolongation under guards and its appeal, resulting obviously or it is hidden to infringement of a principle of reasonable term of the criminal trial, can be systematised as follows:

Errors and omissions regarding application of the bases of election of taking into custody which share on two kinds:

Connected with application as the bases of election of taking into custody of circumstances which the legislator do not concern that (the reference to weight of the brought accusations as on the basis for taking into custody; a recognition as the bases of prolongation of holding in custody of refusal convicted from a cooperation with the investigation; use as the bases of prolongation of holding in custody of necessity of the further performance of investigatory actions; a recognition as the bases of taking into custody of absence of the defendant in the session of the court, having individual character; definition as a basis of decision-making on prolongation of holding in custody of results of operatively-search activity);

Connected with the inadequate argument pravoprimenitelem at acceptance of corresponding decisions of presence of the bases for election of taking into custody concerning the concrete person or its absence (neprivedenie vessels of the concrete facts in favour of presence of the bases provided in ch. 1 items 97 UPK the Russian Federation; ignoring of arguments and arguments of the party of protection in favour of taking into custody change on other preventive punishment);

Errors and the omissions supposed concerning procedural conditions of election, prolongation of taking into custody and its appeal (wrong calculation of terms of a finding of the suspect convicted under guards; non-observance of requirements of item 4 of item 5 of the European Convention [181] about urgent consideration of complaints to the decision on taking into custody; nerassmotrenie possibilities of application of an alternative preventive punishment taking into account the individual circumstances, concerning suspected and convicted; neukazanie in the substantive provision of the decision of the judge about prolongation of holding in custody of concrete term for which the preventive punishment is enlarged, and its final date; consideration of a question on election, prolongation of taking into custody for lack of the defender);

- One of criteria of legality of restriction of the right to a personal immunity is conformity of the bases of application of detention to requirements UPK the Russian Federation. Taking into account that it is necessary to give the remedial form to detention condemned, disappeared with a view of evasion from enduring the punishment in the form of the penalty, obligatory works, correctional labour or freedom restriction, and also condemned to imprisonment with enduring the punishment in a colony-settlement, the instruction which have evaded from reception provided by a part of first article 75.1 Wick to the Russian Federation, or the enduring the punishment which have not arrived to a place in the term established in the instruction, the basis to such kind of detention to provide in item 91 UPK the Russian Federation in the form of maintenance of execution of sentence is necessary.

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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 § 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:

  1. § 1. Concept and subjects of maintenance of criminal procedures held in custody or serving time in the form of imprisonment
  2. § 1. Maintenance held in custody or serving time in the form of imprisonment of the right of defence
  3. § 2. Criminal procedures held in custody or serving time in the form of imprisonment as object obespechitelnojthe activity which is carried out concerning them
  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. § 2. Features and properties of the criminal procedure form of information technologies in criminal trial of the Russian Federation