Remand in Custody as Part of a Sentence: Problem of Determination

The paper analyzes the provisions of the criminal procedure law determining the grounds and procedures for the application of preventive measures when deciding a sentence. The paper attempts to identify their constitutional and legal meaning. According to the author, the remand of a defendant in custody on the sole basis of the need to execute a real imprisonment sentence is unacceptable. Doctrinal representations of the theory of procedural decisions allow us to conclude that the decision on the measure of restraint cannot be taken simultaneously with the sentence and should not be an integral part of it. Under the current legal regulation, the defense is forced to refuse to express the position on the measure of restraint in the pleadings and the last plea if the position of the defendant is aimed at acquittal. The impossibility for the defense to make an immediate appeal on the formulated in the sentence decision on detention makes the appeal meaningless in general. Uncertainty of the procedure for sending persons sentenced to real imprisonment in all penal institutions but colony-settlements to the place of serving their sentence, for whom the court did not choose detention, reveals a gap in the law. The author claims that these and other defects in the legal regulation listed in the paper contribute to the existence of an accusatory bias in law enforcement practice, since they predetermine the detention decision and must be eliminated. Measures of restraint must be considered immediately after the verdict is sounded in a separate court session at the request of the prosecution or at the initiative of the court.

right to liberty, right to defense, presumption of innocence, criminal procedure, trial, sentence, detention, decision on the measure of restraint, sentence arrest, immediate appeal, defendant, convicted

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