Legal restrictions allowed in the election of house arrest and the prohibition of certain actions under the legislation of the Russian Federation and the Republic of Tajikistan

Holzoda Umed Khol ORCID: 0009-0002-3199-4426 Associate Professor; Faculty of Adjunct; St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1, room 728 umed_9664@mail.ru

The sphere of criminal proceedings, in which public principles are manifested, traditionally protects the interests of society and the state. For this reason, this area of legal relations is associated with the use of coercive measures, which are provided by the authorities of the relevant state bodies. In any case, the range of such measures is restrictive in terms of the rights of those participants in the criminal process against whom they are applied. However, the extent of such restrictions cannot be arbitrary and is therefore strictly regulated by the law in both the Russian Federation and the Republic of Tajikistan. The Basic Law of Russia stipulates that the range of rights and freedoms may be restricted only on the basis of a specially adopted law and only for socially useful purposes or to ensure the security of the state (Article 55 of the Constitution of the Russian Federation). A similar provision is contained in Article 14 of the Constitution of the Republic of Tajikistan.

The restrictive nature of State coercion in the sphere of criminal procedural legal relations is particularly significantly manifested in the institution of preventive measures applied to those participants in the criminal process against whom criminal prosecution is being carried out. According to R.G. Nazarzoda, all preventive measures restrict certain rights of suspects or accused ^{[9, p. 77]}.

Preventive measures are regulated by Chapter 13 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the CPC RF), as well as Chapter 12 of the Criminal Procedure Code of the Republic of Tajikistan (hereinafter referred to as the CPC RT). It is worth noting that the criminal procedure legislation of Tajikistan, like the Russian one, is the "heir" of the Soviet criminal justice system. In particular, this is directly evident in the CPC of the Republic of Tatarstan, which is as similar in structure and content of procedural rules as possible to the CPC of the Russian Federation. This similarity can also be seen in the institute of preventive measures. If there are eight such measures in the Criminal Procedure Code of the Russian Federation, then there is only one less in the Criminal Procedure Code of the Republic of Tajikistan due to the absence of a preventive measure in the Tajik law in the form of a ban on certain actions, which appeared in Russia in 2018.

The procedural diminution of the rights of the suspect and the accused occurs through the application of prohibitions and restrictions provided for by specific preventive measures. At the same time, the concept of prohibitions and restrictions as structural elements of preventive measures is not defined either at the level of the law or in criminal procedure science ^[6].

The following persons dealt with issues and existing problems of law enforcement in the selection of preventive measures in Russian criminal proceedings: N.S. Alekseev, I.A. Antonov, V.P. Bozhev, V.M. Bykov, V.V. Vandyshev, M.H. Geldibaev, L.V. Golovko, A.P. Gulyaev, P.M. Davydov, N.V. Zhogin, Z.Z. Zinatullin, K.B. Kalinovsky, E.K. Kutuev, V.S. Latypov, O.V. Logunov, V.T. Tomin, M.S. Strogovich and others.

The problems of the institution of preventive measures in the Republic of Tajikistan were dealt with by: I. Alimbayev, A.V. Grishin, Sh.F. Iskandarov, P.A. Isozoda, I.I. Zievaddinov, E.D. Kamolova, A.M. Majitov, N.S. Manova, S.H. Nuritdinov, F. Lawrence, K. Osmonaliev, Yu.V. Franciforov, A.H. Khakimzoda, A.I. Khalimov and others.

Without going into discussions about the distinction between these concepts, we note that there are both commonalities and differences between them. Thus, both prohibitions and restrictions are mandatory and provide for procedural sanctions for their violation. The key difference between prohibitions and restrictions is that prohibitions prescribe to refrain from performing specific actions, while restrictions, on the contrary, impose a specific obligation to carry out any activity.

In this article, we will analyze how prohibitions and restrictions are manifested in the application of preventive measures such as house arrest and prohibition of certain actions in Russian and Tajik criminal procedure legislation, with the caveat, however, that in the current Code of Criminal Procedure of the Republic of Tajikistan, the prohibition of certain actions is not yet provided for as an independent preventive measure, but law enforcement The practice needs to expand the list of possible preventive measures.

House arrest has been enshrined in Russian criminal procedure legislation since 2001. This measure was the development of the ideas of humanism in the criminal process. The general content of house arrest boils down to the fact that a person is isolated from society, but at the same time is in conditions that are familiar to him. House arrest is the second most severe measure of restraint, second only to detention in terms of the severity of the invasion of the constitutional rights of a criminally prosecuted person ^{[7, p. 31]}. For a long time after the introduction of the Criminal Procedure Code of the Russian Federation, cases of house arrest were relatively few due to the lack of elaboration of the mechanism of application of this measure. So, Yu.Y. Akhminova cites statistics according to which house arrest was used 518 times in 2005 ^{[1, p. 48]}. In the future, this measure began to be applied more often. For example, according to statistics from the Judicial Department of the Supreme Court of the Russian Federation (URL: http://www.cdep.ru/index.php?id=79&item=8688 In 2023, she was elected in 7,407 cases in Russia, which is 1.25% more than in the previous year, 2022. As for the Republic of Tajikistan, house arrest as a preventive measure also appeared only in the current Criminal Procedure Code of the Republic of Tajikistan in 2009. The previous Criminal Procedure law, which was adopted back in Soviet times on August 17, 1961, did not provide for such a measure.

The Criminal Procedure Code of the Russian Federation devotes Article 107 to house arrest, which refers the law enforcement officer to Article 105.1 of the Criminal Procedure Code of the Russian Federation in terms of prohibitions applied to the accused or suspect. Article 110 of the Criminal Procedure Code of the Republic of Tajikistan is entirely devoted to house arrest and does not contain any reference rules regarding the procedure for its application, however, a list of possible prohibitive measures is listed.

In the light of the issues of prohibitions and restrictions that interest us, the analysis of the regulation of the preventive measure in question under the laws of both countries primarily draws attention to the concept of house arrest, which is given in the relevant articles of the criminal procedure laws of Russia and Tajikistan. Thus, Part 1 of Article 107 of the Criminal Procedure Code of the Russian Federation states that prohibitions may be applied to a person under house arrest, while Part 1 of Article 110 of the Criminal Procedure Code of the Republic of Tatarstan in a similar situation refers to legal restrictions. At the same time, it is indicated that such restrictions are determined by the court, although according to the logic of the Code of Criminal Procedure of the Russian Federation, the list of prohibitions on house arrest is determined by the investigator, and the court only gives permission for their application. Topical issues of law enforcement are discussed in the legal literature of the two states ^{[7; 8]}.

According to Part 7 of Article 107 of the Code of Criminal Procedure of the Russian Federation (with reference to paragraphs 3-5 of Part 6 of Article 105.1), as a general rule, the following types of prohibitions may be applied to a person being prosecuted:

- engage in communication with specific people;

- be the addressee and sender of messages or objects transmitted through post offices;

- use other means of communication, as well as the Internet ^{[5, p. 257]}.

In accordance with Part 8 of Article 107 of the Criminal Procedure Code of the Russian Federation and taking into account the severity of the crime committed, either all of the listed prohibitions or individual of them can be applied to a person.

As for the CPC of the Republic of Tajikistan, Part 2 of Article 110 of the CPC of the Republic of Tajikistan provides for the following legal restrictions, which can be applied both collectively and separately:

- the prohibition to leave the dwelling both permanently and during specific time periods;

- prohibition on the use of means of communication, including telephone and postal communication;

- prohibition of communication with certain people and the inadmissibility of their stay in the apartment of the arrested person.

In our opinion, these provisions do constitute criminal procedural prohibitions, as they contain instructions to the suspect and the accused to refrain from committing specific actions. However, other provisions contained in the same part 2 of Article 110 of the Criminal Procedure Code of the Republic of Tajikistan relate not to prohibitions, but to restrictions. So, among such provisions, one can distinguish:

- the obligation to carry electronic controls at all times;

- the obligation to report to the control body at the prescribed time for verification or to call this body by phone;

- the obligation to answer phone calls or other signals received from the supervisory authority for the purpose of verification.

We consider these provisions of the Tajik legislator to be related to restrictions, since through them an additional specific obligation is imposed on the person to whom house arrest is applied to carry out any actions.

110 of the CPC of the Republic of Tajikistan, the monitoring of a person, his dwelling, as well as ensuring the protection of this dwelling, does not apply to prohibitions or restrictions, since the subject of this measure is not the suspect and the accused, but the criminal prosecution authorities.

Taking into account the above, it seems advisable to distinguish the legal restrictions provided for in Part 2 of Article 110 of the Criminal Procedure Code of the Republic of Tajikistan into prohibitions and restrictions and, taking this into account, to present this norm in an improved version. It seems that this would improve the legal technique of using the conceptual framework in the criminal procedure law of Tajikistan. It is this approach that will exclude the principle of alternativeness when choosing a preventive measure, which A.R. Belkin spoke about the possibility of violating ^{[2, p. 45]}.

Continuing the analysis of the legislation of the two states, it is worth noting that paragraph 7 of Part 2 of Article 110 of the Criminal Procedure Code of the Republic of Tajikistan is of particular interest, which stipulates that other measures may be applied during house arrest, the purpose of which is to ensure proper behavior of a person, as well as his isolation from society. At the same time, these other measures are not specified in the norm, which allows us to conclude that they are open-ended ^{[10, p. 153]}. It seems that such an approach by the legislator is unacceptable when implementing such a preventive measure as house arrest, which significantly encroaches on the constitutional rights of a person being prosecuted. In our opinion, the list of measures by which the said person is deprived of his rights should be categorically exhaustive when applying house arrest.

Also considering that since house arrest is higher in terms of restrictions on rights and freedoms than incarceration, stricter prohibitions cannot be applied when electing the first one. For example, in accordance with Part 3 of Article 31 of the RT Law No. 164 dated June 9, 2011 "On the procedure and conditions of detention of suspects, accused and defendants", it is not allowed to limit the duration of daily walks for pregnant women and women with children, then when choosing house arrest, the question of the possibility of walking should be It may also be allowed, taking into account the current legislation. Moreover, in the Russian Federation there is a practice of recognizing the unreasonableness of the ban on walking, recognizing it as posing a threat to the health of a pregnant woman (the ruling of the European Court of Human Rights in the case of Lepeshkina and Shilov v. Russia dated January 11, 2022).

In general, an analysis of law-restrictive measures related to the choice of a preventive measure in the form of house arrest allows us to conclude that the procedure for applying this measure in the Criminal Procedure Code of the Russian Federation is more elaborate than in the Criminal Procedure Code of the Republic of Tatarstan. In particular, Part 1 of Article 107 of the Criminal Procedure Code of the Russian Federation contains a provision according to which house arrest can be chosen only when a milder measure of restraint cannot be chosen. There is no such condition in the Criminal Procedure Code of the Republic of Tatarstan, which indicates that the person conducting the investigation may choose house arrest in any case, based on his discretion.

In addition, Article 107 of the Criminal Procedure Code of the Russian Federation contains a provision on the specifics of choosing house arrest in the event of a violation of the health of a suspect or accused. For such persons, the place of residence under house arrest may be determined by a healthcare institution. There are no such norms in the Criminal Procedure Code of the Republic of Tatarstan.

107 of the Code of Criminal Procedure of the Russian Federation regulates that the prohibitions provided for by law regarding means of communication cannot be applied to situations where a person under house arrest needs to contact a medical institution, law enforcement agencies, emergency services, or the person conducting the proceedings. In the CPC RT does not provide for such exceptions either.

As part of this study, we consider it necessary to focus in more detail on the measure of restraint we have already mentioned above – the prohibition of certain actions. As we have already noted, this is the only preventive measure, the analogue of which is absent in the criminal procedure legislation of the Republic of Tajikistan. In this regard, A.H. Khakimzoda notes that this reduces the capabilities of investigative bodies and courts in solving problems related to limiting the range of rights of a person who has committed a crime ^{[12, p. 241]}.

In the Russian Code of Criminal Procedure, this measure appeared last of those provided for in Chapter 13. This happened only in 2018 with the adoption of Federal Law No. 72-FZ dated April 18 "On Amendments to the Criminal Procedure Code of the Russian Federation regarding the Election and Application of a preventive measure in the form of a ban on Certain Actions, bail and house arrest," 17 years after the adoption of the original version of the criminal procedure law.

As O.D. Vastyanova notes, the appearance of a ban on certain actions in the Criminal Procedure Code of the Russian Federation allowed the law enforcement officer to use more than one preventive measure at the same time in the case, which happened for the first time in Russian criminal procedure practice ^{[4, p. 4]} and changed the approach to the institution of preventive measures.

It seems that the relatively recently introduced preventive measure, as conceived by the legislator, is designed to increase the effectiveness of ensuring such constitutional rights of a person under criminal prosecution as, in particular, personal freedom and inviolability, in comparison with the most stringent preventive measures, which are house arrest and detention. Since the introduction of the ban on certain actions in the Criminal Procedure Code of the Russian Federation, this measure has become quite applicable. So, according to the statistics of the Judicial Department at the Supreme Court of the Russian Federation (URL: http://www.cdep.ru/index.php?id=79&item=8688 In 2023, the courts gave their decision on her election in 4005 cases, which is 22.9% more than the same indicator in 2022.

The current position of the Russian legislator regarding the regulation of the prohibition of certain actions does not look perfect. In particular, it is not entirely clear why this measure was placed in Article 98 of the Code of Criminal Procedure above bail, although it is obvious that it is more stringent in terms of the degree of restrictive effect on the suspect and the accused. In addition, regarding the legal restrictions applied to a person, the issues of a combination of a ban on certain actions and house arrest remain unresolved. In theory and practice, there are other problems regarding the legal regulation and application of the prohibition of certain actions. However, despite this, we consider this measure to be very effective, especially considering the above statistics of its application in Russia. Therefore, we consider it necessary to invite the Tajik legislator to consider the possibility of borrowing it for inclusion in the CPC of the Republic of Tajikistan.Such a measure of restraint seems appropriate for Tajik legislation. For example, in practice, there are situations when it is impractical to choose stricter preventive measures, taking into account the identity of the suspect, the accused, his state of health or marital status, the presence of dependents, but taking into account the severity of the crime and the financial situation of the participant, it is not possible to choose bail, and a subscription not to leave or surety is not enough for the proper behavior of the suspect. the accused. Therefore, we agree with the opinion of A.B. Sudnitsyn that the prohibition of certain actions, despite the law enforcement difficulties and contradictions, is relevant and has a practical need ^{[11, p. 6]}, which is confirmed by the statistics above.

To give an example, when applying a preventive measure in the form of house arrest, a suspect or accused in his home or in a place where house arrest was determined and carried out by a court should not have left his place of residence. But in case of a serious illness, he may be offered hospitalization for medical reasons. In this case, according to Tajik law, it is necessary to apply a preventive measure again, since he has already left the house. The situation is different in the case of preventive measures imposed by a ban on actions, that is, if the suspect or accused became ill and was admitted to the hospital, in this case, until the completion of his treatment and discharge from the hospital, the preventive measure will remain in force and instead of the preventive measure continues, that is, there is no need to apply another preventive measure, given The preventive measure will continue to be in effect. Also, the expansion of the list of preventive measures will make it possible to take into account the restrictions imposed on the suspect and the accused when imposing punishment. Since any restrictions and prohibitions imposed by the court on a participant who is not found guilty in accordance with the procedure established by law must be taken into account when making a final final decision ^{[3, pp. 105-106]}.

For this reason, we propose to amend Article 110.1 of the Criminal Procedure Code of the Republic of Tajikistan, since it is similar to the measure of restraint house arrest, and at the same time, the measure of restraint complies with the legislation of the Republic of Tajikistan. When applying such a preventive measure as the prohibition of definitions of actions against a suspect, an accused who has committed one of the crimes provided for in art. 146, 149, 153, 153.1, 199.1, 210, 210.1, 211, 212, 217, 225, 228, 229, 230 , 231, 232, 233, 234, 234.1, 237 h . h . 1 and 2, 237.1, 238, 239, 245, 246, 247 h. h. 1, 2, 253, 254, 259, 259.1, 263, 264, 265, 266, 8 , 269, 270 77, 278, 294, 295, 298, 299, 300, 301, 302, 303, 304, 334, 338, 338,1, 340 According to the Criminal Code of the Republic of Tatarstan, it is advisable to apply a preventive measure to him in the form of a ban on certain actions. Of course, we noted that house arrest is rare in practice, but if changes are made to the Criminal Procedure Code of the Republic of Tatarstan in the future and a preventive measure is introduced in the form of a ban on certain actions, the preliminary investigation will be able to choose possible measures to limit the participant's behavior, allowing for conflict-free evidence formation without isolation from society, because in this type of preventive measure They will allow you to assign a number of prohibitions and restrictions that apply to house arrest and bail, although similar, but at the same time with proper prohibitions in behavior and actions.

Thus, the following conclusions can be drawn::

1. The structural elements of preventive measures in the form of house arrest and prohibition of certain actions, as well as other preventive measures under the criminal procedure legislation of Russia and the Republic of Tajikistan, are prohibitions and restrictions on the rights of the suspect and the accused. Both prohibitions and restrictions are mandatory and provide for procedural sanctions for their violation. The key difference between prohibitions and restrictions is that prohibitions prescribe to refrain from performing specific actions, while restrictions, on the contrary, impose a specific obligation to carry out any activity.

2. House arrest under the Code of Criminal Procedure of the Russian Federation, with reference to Article 105.1, provides only prohibitions, while Article 110 of the Code of Criminal Procedure allows for the possibility of applying both prohibitions and restrictions. With this in mind, it seems advisable to distinguish the right of restrictions provided for in Part 2 of Article 110 of the Criminal Procedure Code of the Republic of Tajikistan on prohibitions and restrictions and, with this in mind, to set out this rule in an improved version. This will improve the legal technique of using the conceptual framework in the criminal procedure law of the Republic of Tajikistan.

3. Paragraph 7 of Part 2 of Article 110 of the Criminal Procedure Code of the Republic of Tajikistan provides that measures other than those listed in the same article above may be applied during house arrest, the purpose of which is to ensure proper behavior of a person, as well as his isolation from society. At the same time, these other measures are not specified in the norm, which allows us to conclude that they are open-ended. It seems that such an approach by the legislator is unacceptable when implementing such a preventive measure as house arrest, which significantly encroaches on the constitutional rights of a person being prosecuted, but thereby proves the need to introduce a new policy – a ban on certain actions.

4. An analysis of law-restrictive measures related to the choice of a preventive measure in the form of house arrest allows us to conclude that the procedure for applying this measure in the Criminal Procedure Code of the Russian Federation is more elaborate than in the Criminal Procedure Code of the Republic of Tajikistan, which, in our opinion, should be taken into account by the legislator in Tajikistan.

5. The Criminal Procedure Code of the Republic of Tatarstan does not contain an analogue of such a preventive measure under the Criminal Procedure Code of the Russian Federation as a ban on certain actions. This measure, taking into account the analysis carried out, including the statistics of its application in Russia, seems to be very effective. Therefore, we consider it necessary to invite the Tajik legislator to consider the possibility of borrowing it for inclusion in the CPC of the Republic of Tajikistan.