Prohibition of certain actions in the system of preventive measures: practice of application and directions of optimization

Filimonova Marina Dmitrievna Associate Professor, Department of Management of Crime Investigation Agencies, Academy of Management of the Ministry of Internal Affairs of the Russian Federation 63a Koptevskaya str., Moscow, 125239, Russia fmd38@yandex.ru

Article 105.1 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the CPC of the Russian Federation) was introduced into the relevant codified act by Federal Law No. 72-FZ dated 04/18/2018 "On Amendments to the Criminal Procedure Code of the Russian Federation regarding the Election and Application of Preventive Measures in the form of a ban on Certain Actions, bail and house Arrest". The purpose of introducing a new preventive measure was fully outlined in the explanatory note to the draft law – the formation of an alternative to detention.

It is worth noting that this is not the first attempt by the legislator to fix certain restrictions that can be imposed on a suspect or accused of committing a crime ^{[5, p. 33]} (previously, the application of such restrictions was possible, for example, within the framework of house arrest). However, the prohibition of certain actions as an independent preventive measure in the domestic criminal procedure law was introduced for the first time.

The introduction of a ban on certain actions in the system of preventive measures certainly actualizes the study of the measure in question in the scientific community, which is fully confirmed by the intensity of publication of relevant works. Over the past five years, since the addition of the Code of Criminal Procedure to Article 105.1, the institute of prohibition of certain actions has been considered by the scientific community from the perspective of a retrospective study ^{[5; 13]}, and in a comparative legal aspect ^{[4; 7]}, and as a specific unit using a systematic approach to the institution of preventive measures as a whole [1 6; 12], and as a system-forming factor in the application of combined preventive measures ^{[2; 9; 10]}. In addition, a significant number of works are devoted to the problems of legal regulation and enforcement of the prohibition of certain actions as a preventive measure in scientific periodicals ^{[3; 8]}.

Meanwhile, the current degree of scientific development seems to be insufficiently saturated with analysis of the practice of prohibiting certain actions, compared with the study of the theoretical and regulatory aspects of the institution under study, as well as specific proposals for optimizing the legal regulation of the prohibition of certain actions. Thus, it can be stated that the research potential of the practice of prohibiting certain actions and problem analysis of the relevant institute is quite extensive. The above allows us to focus specifically on the designated aspects of the institution of prohibition of certain actions as a preventive measure. The subject of this study is problematic aspects of the legislative consolidation of norms governing the application of a preventive measure in the form of a ban on certain actions, as well as law enforcement practice.

Starting directly with the study, it seems necessary to pay attention to the statistical characteristics of the application of the prohibition of certain actions as a preventive measure. An appropriate analysis of the practice of prohibiting certain actions can be made on the basis of reports from the Judicial Department of the Supreme Court of the Russian Federation.

The analysis of reports on the work of courts of general jurisdiction on the consideration of criminal cases in the first instance for 2018-2022 allows us to formulate a conclusion about the insufficiently intensive application of the preventive measure in question.

Thus, in 2018, 347 materials with a petition for the election of a ban on certain actions as a preventive measure were received by the courts (301 petitions were satisfied, which is 86.7%), in 2019 1,419 materials were received (1,246 were satisfied, which is 87.8%), in 2020 – 2117 materials (1,850 were satisfied, which is 87.4%), in 2021 – 2,924 (2,565 were satisfied, which is 87.7%), in 2022 - 3,464 (3,085 were satisfied, which is 89%) (Report on the work of courts of general jurisdiction to consider criminal cases at first instance for 2018-2022 [Electronic resource]. Access mode: http://www.cdep.ru/?id=79 (date of application: 02/20/2024)).

Thus, it can be concluded that the level of application of the prohibition of certain actions as a preventive measure tends to increase, and the percentage of satisfied petitions over the years, reflected in the statistics of the Judicial Department of the Supreme Court of the Russian Federation, remains approximately the same (slight fluctuations within 2.3% over 5 statistical periods). In the first half of 2023, 2205 materials were received, of which 1,939 petitions were granted (which is 87.9%) (Report on the work of courts of general jurisdiction to consider criminal cases in the first instance for the first half of 2023 [Electronic resource]. Access mode: http://cdep.ru/userimages/_F1-svod-vse_sudy-1-2023.xls (date of application: 02/20/2024)).

Despite the increase in applications for the prohibition of certain actions as a preventive measure, it is worth noting their relatively small number, in comparison, for example, with detention. It was to reduce the level of application of such a measure as detention that the legislator introduced such measures as bail and prohibition of certain actions. If the pledge has already been recognized by the scientific community as an unsuccessful, practically unused institution ^{[6, p. 50]}, then it is possible to expand the application of the prohibition of certain actions as a preventive measure at the present stage of the development of the criminal procedure law, including by optimizing its regulatory regulation.

The above actualizes the identification of problems and conflicts of the legal regulation of the prohibition of certain actions as a preventive measure and allows us to proceed to the appropriate analysis.

When conducting a problem analysis, it is necessary to briefly mention some of the problems already voiced in scientific periodicals, but not solved at the time of writing the article.

First of all, it is necessary to resolve the conflict with the possibility of a combination of preventive measures, which has been repeatedly raised in the scientific literature ^{[5, p. 35; 12, p. 16]}.

On the one hand, to this day there is a discussion in the scientific community about the independence of banning certain actions precisely as a preventive measure (and not, for example, additional restrictions that can be used to "complement" another preventive measure). On the other hand, if we axiomatically perceive the prohibition of certain actions as an independent measure of restraint (which is implied based on the construction of Section IV and Chapter 13 of the Code of Criminal Procedure of the Russian Federation), there is an unresolved issue at the legislative level about the possibility of applying more than one measure of restraint at the same time.

At first glance, Part 1 of Article 97 of the CPC of the Russian Federation clearly formulates the possibility of applying one preventive measure (namely, "one measure", and not "measures"), however, part 11 of the same article allows the use of certain measures along with those already applied. The current situation has given rise to the above-mentioned disputes among researchers.

Therefore, if the prohibition of certain actions is an independent measure of restraint, then at the legislative level it is necessary to classify preventive measures into basic and additional ones (as is actually happening now, taking into account the content of Part 11 of Article 97 of the Code of Criminal Procedure of the Russian Federation, Part 8.1 of Article 106 of the Code of Criminal Procedure of the Russian Federation), while making changes to the wording of Part 1 of Article 97 of the Code of Criminal Procedure of the Russian Federation, regarding the replacement of the wording "one of the preventive measures provided for" with the phrase "preventive measures provided for". This method of eliminating the existing conflict seems less radical, since at the moment, despite the ambiguous interpretation of the formulations considered, the law enforcement officer acts exactly like this – supplements bail or house arrest with a number of prohibitions of certain actions according to the provisions of Part 11 of Article 97 of the Code of Criminal Procedure of the Russian Federation (with sufficient argumentation of the validity of the application of such prohibitions).

When considering the second, more radical option, we should talk either about dividing preventive measures into basic and additional ones (there is an analogy with the institution of punishment in criminal law), or about removing the prohibition of certain actions from the scope of the institution of preventive measures and forming the institution of additional restrictions. This option also seems to be quite promising, especially in terms of flexibility in the formation and "staffing" of preventive measures. However, the optimization of preventive measures in this way implies a rather serious doctrinal revision of both measures of procedural coercion in general and preventive measures in particular.

The practical result seems similar, with the only difference that the preventive measure, as prescribed by Part 1 of Article 97 of the Code of Criminal Procedure of the Russian Federation, will be applied alone, and other restrictions used as an addition will not be among the preventive measures.

There is also a point of view in the scientific literature, according to which there are no contradictions in the current situation, since the legislator uses a more advanced technical and legal method of reference in the construction of the norms under consideration ^{[6, p. 51]}. Thus, I. S. Dikarev comes to the conclusion that "the imposition of prohibitions on a suspect or accused occurs within the framework of applying bail or house arrest to them, and prohibitions at the same time form part of the content of these preventive measures" ^{[6, p. 52]}. However, the proposed interpretation of the analyzed norms also seems to raise questions of the independence of the prohibition of certain actions as a preventive measure, as well as the possibility and expediency of classifying the relevant prohibitions into the category of "restrictions" or "prohibitions".

Thus, it seems that this issue should be resolved at the legislative level.

Next, it is necessary to pay attention to the legal technique of Article 105.1 of the Code of Criminal Procedure of the Russian Federation, which directly regulates the prohibition of certain actions. In part 4 of the article in question, the legislator restricts the judge to three variants of decisions when resolving a petition for the election of a preventive measure in the form of a ban on certain actions. According to the relevant list, the court may choose this measure of restraint; may impose additional prohibitions on a person to whom a ban on certain actions has already been applied; may refuse to satisfy the petition. At the same time, the second point of the investigated part 4 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation can be interpreted ambiguously – on the imposition of additional prohibitions (taking into account the closed nature of the list of Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation). As stated by I. S. Dikarev ^{[6, p. 52]}, we are talking about the imposition of additional prohibitions from the list of Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation, and not about the independent formulation of prohibitions not included in the specified list by the court. Nevertheless, for the purpose of uniform application of the norm of Part 4 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation, this issue seems to need to be clarified by the legislator, since the current version of the article does not imply its unambiguous interpretation.

In this regard, it seems advisable to state paragraph 2 of Part 4 of Article 105.1 of the Criminal Procedure Code of the Russian Federation in the following wording:

"2) on the imposition of additional prohibitions established by part six of this article on the suspect or accused, in respect of whom a preventive measure has been applied in the form of a ban on certain actions;".

In addition, it is worth noting that with a literal interpretation of the provisions of Part 4 of Article 105.1 of the CPC of the Russian Federation, if the court agrees with the need to ban certain actions, but disagrees with the list of prohibitions proposed by the investigative body, the court is unable to choose this measure of restraint, excluding one or more prohibitions from the petition when appointing it. Thus, the court is limited by the provisions of the declared petition in this part. The solution to this situation is seen in giving the judge the authority to reasonably exclude one or more prohibitions when considering the relevant application.

In view of the above, in order to optimize the activities for the election of this preventive measure, it seems advisable to supplement Article 105.1 of the Code of Criminal Procedure of the Russian Federation Part 41, stating it in the following wording: "41. When the court issues the decision referred to in paragraph one of part four of this article, the judge has the right to exclude one or more prohibitions from the number specified in the petition of the investigator or inquirer.".

Finally, the wording of one of the prohibitions seems controversial, namely the prohibition regulated by the norm of clause 6, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation.

The current version of this paragraph allows for a double interpretation by using the phrase "committed crime". Both the law enforcement officer and the researcher may have the erroneous feeling that the relevant prohibition can be applied to a person whose guilt in committing a particular crime has already been established, and the event of the crime itself has been proven. Meanwhile, the literal interpretation of Part 2 of Article 8, Part 1 of Article 73, paragraphs 1-4 of Part 1 of Article 299 of the Code of Criminal Procedure of the Russian Federation make it possible to exclude the above interpretation of the norm in question. In order to eliminate the identified conflict, it is preferable to state paragraph 6, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation in the following wording:

"6) to drive a car or other vehicle if the crime of which a person is suspected or accused is related to violation of traffic rules and operation of vehicles.".

The introduction of the proposed changes will contribute to a uniform understanding and application of the prohibition provided for in clause 6, Part 6, Article 105.1 of the Code of Criminal Procedure of the Russian Federation.

Thus, this study analyzes the prohibition of certain actions as a preventive measure. In the course of the research, both problems and collisions that previously became the subject of research by process scientists were studied, and others that were not previously discussed in the scientific literature were identified. The formulations fixed by the legislator in relation to the prohibition of certain actions, in some cases, allow for an ambiguous interpretation of them, which seems at least undesirable. The specificity of this study is mediated by the variability of the author's approach to the conflicts of legal regulation of the prohibition of certain actions as a preventive measure already identified by the scientific community, a review of various research positions, taking into account the statistical analysis carried out during the study.

The conclusions formulated in the framework of the article include the following.

Firstly, the legal regulation of the institution of preventive measures needs to be optimized. In particular, the legislator needs to eliminate the existing conflict between the indication of the election of one preventive measure (Part 1 of Article 97 of the CPC of the Russian Federation) and the possibility of a combination of preventive measures (Part 11 of Article 97 of the CPC of the Russian Federation, Part 8.1 of Article 106 of the CPC of the Russian Federation). Possible ways to eliminate the conflict are analyzed within the framework of the conducted research. Each of them provides an opportunity to eliminate the existing conflict, but the first one involves a technical and legal clarification of the legal regulation of preventive measures and their classification, and the second one involves a deeper reworking and understanding of the institution of preventive measures, and the formation of a sub-institute of restrictive measures.

Secondly, in order to uniformly apply the norm established by paragraph 2 of Part 4 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation, the author proposes to state this paragraph in the following wording: "2) on imposing additional prohibitions established by part six of this article on a suspect or accused against whom a preventive measure has been applied in the form of a ban on certain actions;".

Thirdly, in order to optimize the activities for the election of this preventive measure, it seems advisable to supplement Article 105.1 of the Code of Criminal Procedure of the Russian Federation Part 41, stating it in the following wording: "41. When the court issues the decision referred to in paragraph one of part four of this article, the judge has the right to exclude one or more prohibitions from the number specified in the petition of the investigator or inquirer.".

Fourthly, in order to eliminate the double interpretation of the phrase "committed crime" (paragraph 6, part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation), it is proposed to replace the specified wording with "a crime of which a person is suspected or accused". The introduction of the proposed amendment will contribute to the uniform application of the prohibition provided for in paragraph 6, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation. This proposal involves the revision of this norm from a technical and legal point of view.