Remand in Custody as Part of a Sentence: A Restrictive Measure or Presentation of the Sentence for Execution
https://doi.org/10.17803/1994-1471.2020.111.2.141-149
Abstract
Choosing remand in custody for the defendant on the sole basis of the need to ensure the execution of the sentence, without establishing and taking into account the risk of evading serving the sentence, is unacceptable. In such cases, the restrictive measure lacks a fundamental feature, i.e. its preventive nature. In this regard, the emerging criminal procedural relations are not governed by the provisions of Ch. 13 of the Criminal Procedural Code of the Russian Federation, but are subject to Ch. 46 of the Criminal Procedural Code of the Russian Federation, regulating the issues of presentation of the sentence for execution. The presentation of the sentence, yet to enter into legal force, in terms of the punishment imposed, for immediate execution bypassing the prohibition established by law, as well as the choice of a restrictive measure according to the punishment imposed when deciding the sentence solely for the purpose of its execution, contradicts the constitutional principle of the presumption of innocence. The provisions of Part 2 Art. 97 of the Criminal Procedural Code of the Russian Federation determine the possibility to choose a restrictive measure for ensuring the execution of the sentence. The constitutional legal sense suggests that in order to ensure the execution of the punishment imposed by a sentence yet to become effective, the court has the right to choose or change a restrictive measure according to the punishment imposed, if there are sufficient grounds to believe that the accused will evade serving the sentence imposed on him. The court does not have the right to choose or change a measure of restraint in respect of the accused according to the sentence imposed simultaneously with the sentencing. The issue of the necessity of applying a restrictive measure in connection with the decision of the sentence shall be resolved in a separate court session at the request of the prosecution or at the initiative of the court after the pronouncement of the sentence.
About the Author
V. A. Filatyev
Kaliningrad Region Legal Association
Russian Federation
Postgraduate student of the Russian State University of Justice, Attorney
ul. Novocheryomushkinskaya, d. 69, Moscow, Russia, 117418
Russian Federation
Postgraduate student of the Russian State University of Justice, Attorney
ul. Novocheryomushkinskaya, d. 69, Moscow, Russia, 117418
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Review
For citations:
Filatyev V.A. Remand in Custody as Part of a Sentence: A Restrictive Measure or Presentation of the Sentence for Execution. Actual Problems of Russian Law. 2020;15(2):141-149. (In Russ.) https://doi.org/10.17803/1994-1471.2020.111.2.141-149
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