Legal ambiguity of norms on the set-off of the restraining order time period provided for in Item 1 Part 6 Article 105.1 of the RF Criminal Procedure Code as part of punishment: Problems of law enforcement and ways to solve them

This article discusses the problem of the set-off of the restraining order time period, provided for in Item 1 Part 6 of Article 105.1 of the Criminal Procedure Code of the Russian Federation, as part of punishment. The analysis of the legislature shows that norms of the Criminal Code of the Russian Federation provide for the set-off of time in custody during preliminary investigation and up to the entry of a judgement into legal force as part of punishment. The length of detention is counted as part of punishment at the ratio 1:1; the length of home confinement is counted as the period of custody before pretrial proceeding and as part of punishment at the ratio 2:1. Both measures are related to the restriction of the right to freedom and privacy. Home confinement is equal to detention in terms of restriction of rights and freedoms. Establishing the special ratio for the set-off of time of home confinement to time of detention and to time of imprisonment, the legislator takes into account the fact that conditions of home confinement and of detention are different. Restriction of the right to freedom and privacy is related to prohibition of certain actions - to leave the house within a specific time period. The Criminal Code of the Russian Federation does not fix the possibility to set-off the restraining order time period as part of punishment and its ratio. The RF Criminal Procedure Code provides for the set-off, at the ratio of teo days of the restraining order application to one day of detention. The analysis of the law enforcement practice shows that there emerged a situation of legal ambiguity of the legal regulation of the set-off of the restraining order time period, as fixed in Item 1 Part 6 of Article 105.1 of the RF Criminal Procedure Code, as part of punishment. Courts choose different ways to set-off the time of prohibition of certain actions as time of punishment. The existing ratio of the set-off of the period of home confinement and of prohibition to leave the house is unjust because it gives the same status to persons who are in conditions of full and partial isolation (with regard to the set-off of the period as part of punishment). The legislator, providing restrictive measures, different yet similar by nature, should guarantee equal protection rights. Introducing restrictive measures as restrictions and prohibitions, in force at different period of time, the legislator should have fixed a specific approach to the set-off of this prohibition as part of punishment. The authors come to a conclusion that nowadays there are grounds to apply to the Constitutional Court of the Russian Federation with a request on the unconstitutionality of criminal law and criminal procedural law on the considered problem. Before this problem is solved on the highest level, considering the essence of the restraining order provided for in Item 1 Part 6 of Article 105.1 of the Criminal Procedure Code of the Russian Federation and following the general principles of penalty imposition, the authors propose to consider the specified time of the restraining order in hours and to define in total the period to be set off as part of punishment.

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