Peculiarities of the Criminal and Intelligence Nature of Imposing

Punishment in the Form of Restriction of Freedom

Kirill A. Chistyakov

, Elnur Fazil ogly Gadzhiev

and Normunds Ilmarovich Pavlukevich

Academy of the Federal Penal Service of Russia, Ryazan, Russian Federation

Bar Association "Titul" of Moscow, Moscow, Russian Federation

Municipal police Riga municipality, Riga, Republic of Latvia

Keywords: Problems of science, legislation and practice of criminal and law enforcement intelligence operations,

restriction of freedom, criminal punishment, convicted to restriction of freedom, activities of penal

enforcement inspectorate on the execution of restriction of freedom, the effectiveness of the execution of

punishment, law enforcement intelligence operations, detection and suppression of crimes in the execution of

punishment.

Abstract: It would be wrong in denying the unalterable fact of certain correlation between the results of law enforcement

intelligence operations and the efficiency and effectiveness of the results of the sentence enforcement. This

fully applies to such a relatively new for Russian criminal law type of punishment as restriction of freedom.

Speaking about the current edition of the Criminal Code of the Russian Federation, appearance of restriction

of freedom as a type of punishment could be attributed to 2009, although initially this type of punishment was

present in the system of punishments when the current Criminal Code of the Russian Federation came into

force. However, the introduction of restriction of freedom was delayed due to the lack of material and

economic conditions for its implementation. At the session of the State Council Presidium that was dedicated

to the issues of penal enforcement system functioning (the session took place on February 11, 2009 in

Vologda), the President of Russia pointed to the necessity of humanization of criminal punishment system,

including through dramatic multi-vector review of norms of Criminal Code of the Russian Federation

regarding such punishment measures as restriction of freedom and arrest. One of the main objectives in the

execution of the considered punishment is the goal of preventing the convicted person from committing new

crimes. In this case, the undeniable benefit is provided by the law enforcement intelligence operations.

Through a number of law enforcement intelligence operations, criminal intentions are revealed and offences

and crimes are suppressed, which makes the process of execution of punishment more effective and the goals

of punishment quite achievable. The aim of the study is to confirm the thesis about the need to review the

place, role and special social purpose of punishment in the form of restriction of freedom within the general

system of criminal punishment types. The objectives of the study include the determining factors of

identification of genesis-functional commonalities of the two branches of legislation – law enforcement

intelligence and criminal.

1 INTRODUCTION

In the theory of criminal law, punishment in the form

of restriction of freedom occupies a special place,

both in terms of theory and in terms of law

enforcement practice. Therefore, it has been

repeatedly noted that despite the progressiveness of

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the current criminal and penal enforcement norms, its

specific application is not yet as widespread as

required by social practice. Due to this fact, the

effectiveness of application and execution of

restriction of freedom directly depends not only on

the necessary material and economic conditions, but

also on providing this process with an ontological

300

Chistyakov, K., Gadzhiev, E. and Pavlukevich, N.

Peculiarities of the Criminal and Intelligence Nature of Imposing Punishment in the Form of Restriction of Freedom.

DOI: 10.5220/0010635800003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

300-305

ISBN: 978-989-758-532-6; ISSN: 2184-9854

apparatus, as well as a system of judicial and

methodological interpretations.

The introduction of the restriction of freedom as a

type of punishment in the current version of the

Criminal Code of the Russian Federation dates back

to 2009. At the session of the State Council Presidium

that was held on February 11, 2009 in Vologda, the

President of Russia pointed to the necessity of

humanization of criminal punishment system,

including through obligatory reconstructing the

norms of the Criminal Code regarding such penalties

as restriction of freedom and arrest.

In the process of implementing these initiatives,

Federal Law No. 377-FZ of December 27, 2009 "On

amending certain legislative acts of the Russian

Federation related to the enactment of the Criminal

Code of the Russian Federation and the Penal

Enforcement Code of the Russian Federation on

punishment in the form of restriction of freedom" was

passed. Since January 2010, restriction of freedom

began to be applied as a new type of criminal

punishment (although its title remained the same as

before).

From this moment, restriction of freedom can be

imposed as the main or additional punishment for

minor or medium gravity crimes. Its general terms

shall be from two months to four years when applied

as the main type of punishment, or from six months

to two years when applied as a punishment in addition

to compulsory works or imprisonment. In case of

juveniles convicted for minor or medium gravity

crimes, restriction of freedom is imposed only as the

main punishment (I.V. Sokolov, 2010) for a period

from two months to two years (Part 5, Article 88 of

the Criminal Code of the Russian Federation).

2 MATERIALS AND METHODS

Materials used in conducting this study:

 Papers devoted to the analysis of the problems

of the execution of punishment in the form of

restriction of freedom;

 Modern scientific researches, which are

devoted to problems of execution of restriction

of freedom;

 Publications devoted to the problem of using

methods and means of law enforcement

intelligence operations in the execution of

punishment in the form of restriction of

freedom;

 Scientific studies that analyze the complex of

social relations arising during the imposition

and serving of punishment in the form of

restriction of freedom, as well as the detection

and suppression of offences during its

execution;

 Official statistics of the law enforcement and

judicial authorities, reflecting the data on the

imposition and enforcement of punishment in

the form of restriction of freedom;

 Laws and sublegislative acts of the criminal

and intelligence nature, which regulate the

judicial implementation of the provisions of the

institution of restriction of freedom;

Research methods: the methodological basis of

the scientific article is a set of methods and techniques

of scientific cognition inherent in the science of

criminal and intelligence jurisprudence. In particular,

the study used dialectical, comparative, logical-legal,

complex and logical-juridical methods of cognition.

3 RESULTS AND DISCUSSION

As of 01.04.2021, restriction of freedom is envisaged

for more than 120 component elements of a crime as

the main type of punishment, and for more than 130

component elements of a crime as an additional type

of punishment (T.A. Kosnyreva, 2011). In other

words, restriction of freedom as a form of punishment

has quite broad prospects for the implementation of

the basic provisions of criminal policy.

The main components of the punishment in the

form of restriction of freedom are (Article 53 of the

Criminal Code):

 Mandatory attendance to the penal enforcement

inspectorate once a month or at least once a

week (1 - 4 times a month);

 The convicted person is prohibited from

changing his place of residence or stay without

notification and permission of the penal

enforcement inspectorate;

 The convicted to restriction of freedom is

prohibited to travel outside the municipality

where he/she lives or stays.

The criminal and penal laws also provide for a

number of other restrictions. These restrictions are set

by a specific court in each case with respect to a

particular convicted person (G. Verina, 2010). These

restriction measures can be supplemented or canceled

by the court based on what will be the behavior of the

convicted person while serving his/her sentence. Only

a specialized state body executing punishment (penal

enforcement inspectorate) carries out this process. In

case of willful evasion of a convicted person from

serving restriction of freedom (S. S. Oganesyan, S. K.

Peculiarities of the Criminal and Intelligence Nature of Imposing Punishment in the Form of Restriction of Freedom

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Shamsunov, 2018), when it has been imposed as the

main type of punishment, the unserved part of the

sentence may be replaced by the court, but again, this

is done only on the proposal of the penal enforcement

inspectorate. Restriction of freedom is replaced with

compulsory works or imprisonment at the rate of one

day of compulsory works for two days of restriction

of freedom or one day of imprisonment for two days

of restriction of freedom. Of course, there is a

question of providing factual materials indicating the

willful evasion of the convicted to restriction of

freedom from serving the sentence. In this sense, the

process of execution of punishment is supplemented

by functions of control over this process, which may

be carried out by means of law enforcement

intelligence operations (G.S. Shkabin, 2020).

The main provisions and features of the process

for the execution of punishment in the form of

restriction of freedom are established by Chapter 8 of

the Criminal Executive Code of the Russian

Federation and the Instruction on the organization of

the execution of punishment in the form of

imprisonment (hereinafter referred to as the

Instruction).

Decree of the Government of the Russian

Federation No. 198 of March 31, 2010 expressly

states that monitoring of the behavior of convicted

persons to restriction of freedom may also be carried

out with the help of special means that are designed

to establish the location of those convicted to

restriction of freedom. It cannot be excluded that the

results of law enforcement intelligence operations

regarding the persons serving this type of punishment

may also be used in favor of a number of security

procedures, for example, information on the specific

location of the convicted person.

In 2014, the judicial authorities imposed

restriction of freedom to 26,983 convicted persons,

and in 2015, the number of such persons amounted to

20,827. In 2016, it was imposed in 25,339 cases, and

in 2018, it was imposed on 23,009 persons. In our

view, such difference in statistical indicators is

associated with insufficient normative regulation of

certain issues of execution of punishment in the form

of restriction of freedom and, as a consequence,

problems arising in the course of its execution.

Data from the Judicial Department of the

Supreme Court of the Russian Federation indicates

that often restriction of freedom is imposed for

assaults in the form of willful infliction of moderate

harm to the health of citizens. In 2018, courts imposed

restriction of freedom on 4,145 persons for this

criminal offence. Currently, there is no downward

trend (L.V. Bertovskii, A.V. Kvyk, 2020).

Some of the most common crimes for which

courts impose restriction of freedom are:

1. Theft as covert embezzlement of another

person's property (Part 1 of Article 158 of the

Criminal Code of the Russian Federation).

2. Illegal possession of the vehicle without the

purpose of embezzlement (Part 1 of Article 166

of the Criminal Code of the Russian

Federation)).

3. Illegal possession or carrying of weapons,

ammunition (Article 122 of the Criminal Code

of the Russian Federation), etc.

At the same time, despite the recent court

practice, as well as taking into account direct

instructions from the highest judicial bodies of the

Russian Federation that lower judicial bodies do not

always correctly impose restriction of freedom

(Aleksandra S. Vasilenko, Vladimir M. Filippov,

Maria A. Simonova, and Sergey A. Kovalenko.

2020), the considered problem needs a systematic

analysis.

Another problem is that there is not quite normal

practice when courts use criminal law wording in the

sentence, without taking into account that the

criminal law provides general provisions, and in a

particular sentence, when indicating measures to

restrict the right of the convicted person to leave the

municipality, the borders of a particular

administrative-territorial unit must be indicated. This

circumstance sometimes complicates the execution of

punishment and reduces its corrective impact.

For instance, when considering the appeal, the

Lomonosov District Court of the city of Arkhangelsk

found out that during the consideration of the case in

the justice court, the judge did not specify the

administrative-territorial unit, which is prohibited to

M. to travel abroad. M. himself lived in Arkhangelsk

so this should have been indicated in the sentence of

the justice court.

Cases where restriction of freedom is imposed by

the court as an additional type of punishment are also

not an exception. There are also inaccuracies in the

sentence with respect to the determination of the

municipality (A.M. Pleshakov, G.S. Shkabin, 2020).

For example, the verdict of guilty of the district

courts in Vologda indicated the obligation of the

person convicted to restriction of freedom of "not

leaving the borders of the municipality of residence

or stay". In our view, this wording is not quite correct

and the court had to apply another, more precise

wording, such as "not leaving the borders of the

municipality, in which the convicted person has a

place of residence and will reside during the period of

serving the imposed sentence".

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In accordance with the penal law, the court must

determine a specific number of attendances at the

penal enforcement inspectorate per month, as well as

oblige the convicted person to get registered there.

According to the results of our study, it was revealed

that the courts often do not indicate a specific number

of attendances in a particular period; they use vague,

unspecific wordings when describing the measures to

be executed by the convicted person while serving the

sentence.

As an illustration, here is an example of a

sentence of the Novodvinsk City Court, in which the

justice of the peace did not specify the number of

attendances at the penal enforcement inspectorate of

the convicted person, but used the wording "with the

obligation to periodically attend the penal

enforcement inspectorate for registration".

In a number of other sentences, judges have used

the wording "frequency of attendance of the

convicted subject not less than once a month". This

wording gives a wide range of interpretations and

discretion in the execution of the court sentence.

Moreover, it provides opportunities for abuse and

exceeding of official powers and corruption of all

kinds.

We cannot but agree with the proposals of a

number of authors who point to the need to exclude

from court sentences wordings such as "at least...

once a month" (R.V. Kombarov, A.M. Potapov,

2017).

Another important aspect found during this study

is that courts often do not take into account the

personal characteristics of the convicted persons

when imposing punishment in the form of restriction

of freedom.

At the same time, according to Part 3 of Article

60 of the Criminal Code of the Russian Federation,

when imposing the punishment, the court must take

into account the nature and degree of public danger of

the offense, specifics of the individual characteristics

of the perpetrators, as well as how the imposed

punishment in the form of restriction of freedom will

affect the correctional process, and whether there are

real conditions for the execution of punishment in the

form of restriction of freedom.

As it has already been noted in the legal literature

and confirmed by the results of our study, the courts

in a number of cases, when imposing criminal

punishment in the form of restriction of freedom, are

guided by criminal law components and

characteristics, and social realities remain outside the

scope of judicial consideration in more preventive

terms. (Y.A. Golovastova, A.A. Chistyakov, K.A.

Chistyakov, 2020).

The noted shortcomings in terms of practical and

legal aspect in their analysis and comprehension

allow us concluding that a number of provisions of

the Criminal Code of the Russian Federation and the

Criminal Executive Code of the Russian Federation

are ineffective due to deficiencies in the initial aspect

(A.M. Pleshakov, G.S. Shkabin, 2020).

These shortcomings of legislation, judicial and

criminal-executive practice allow us outlining the

following scope of problems:

1) Collisional nature of the content of punishment

in the form of restriction of freedom with its not

quite correct hierarchical meaning and place in

the system of punishments;

2) Unspecific wording of the nature and scope of

restrictions imposed on convicted persons to

restriction of freedom, which prevents the

efficiency and uniformity of execution of

punishment in the form of restriction of

freedom;

3) Insufficiently clear and precise distinction

between punishment in the form of restriction

of freedom with probation in terms of its nature

and duties imposed on the probationer during

the period of probation and the convicted to

restriction of freedom with the imposition of

judicial duties. (I.V. Sokolov, 2010);

4) Comparatively small amount of deprivations

and restrictions of rights and freedoms of a

convicted person to restriction of freedom in

comparison with other criminal punishments;

5) Restriction of freedom cannot be applied to

persons who do not permanently reside in the

territory of the Russian Federation;

6) Unspecific nature of the wording of Part 1 of

Article 53 of the Criminal Code of the Russian

Federation, which in fact develops into a

problem of legal regulation of those restrictions

that should be imposed on a convicted person

to restriction of freedom.

These problems, which arise in the imposition and

execution of punishment in the form of restriction of

freedom, create certain problems for the courts in the

process of its application to perpetrators.

In order to improve the procedure for imposing

punishment in the form of restriction of freedom

(L.A. Bukalerova, A.V. Ostroushko, N.E. Rustamov,

2016) and to make the process of its imposition more

effective, it seems advisable to clarify the order of its

imposition by the highest court (A.M. Pleshakov,

G.S. Shkabin, 2019). It is thought that this ruling

should include the following recommendations to the

judiciary:

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1) Determine the specific restrictions that, in

accordance with Part 1 of Article 53 of the

Criminal Code of the Russian Federation, must

be imposed on each person convicted to

restriction of freedom;

2) Restrictions and obligations, which are not

provided for by Part 1 of Article 53 of the

Criminal Code should not appear in the same

form in the sentences for specific cases, but

only with "regard" to the specific subjects and

circumstances of the case;

3) With a conditional sentence, if there is a need

to impose restriction of freedom as an

additional punishment, it should initially

indicate the legal restrictions relating to

restriction of freedom and to probation,

stipulating in the sentence their independent

execution;

4) Clearly specify the administrative-territorial

unit in the sentence where the convicted person

resides or will reside during the execution of

the sentence;

5) Not impose restriction of freedom to persons

with a negative characteristic, deviant behavior

or persistent criminal tendency;

6) Not impose restriction of freedom to persons

whose work involves trips outside the

boundaries of the administrative-territorial

unit;

7) Not impose restriction of freedom if it may

adversely affect the condition of third persons

living together with the convicted person;

8) In accordance with Article 53 of the Criminal

Code of the Russian Federation, it should

clearly prescribe the wordings "restrictions"

and "obligations", delimiting them in the

sentence.

We believe it is necessary to generalize the

existing judicial and penal enforcement practice and

provide a detailed explanation of the procedure for

imposing and executing restrictions on freedom at the

level of a resolution of the Plenum of the Supreme

Court of the Russian Federation in order to avoid

mistakes and inaccuracies when imposing

punishment in the form of restrictions on freedom in

the future.

It should be noted that despite all the

progressiveness of criminal and penal norms, the use

of punishment in the form of restriction of freedom is

not as widespread as it was conceived during the

implementation of the criminal-legal reform in

Russia. The issue of some sort of sluggishness of this

process is seen in the lack of awareness of the

effectiveness of punishment in the form of restriction

of freedom, outright unwillingness to widely use

more humane forms of punishment fearing

accusations of connivance and forbearance.

4 CONCLUSIONS

It seems that it is impossible to really consider

restriction of freedom as an effective alternative to

imprisonment, contrary to the predictions of

practitioners and scientists, and this is primarily

related to the psychological perception of this type of

punishment, as well as specific attitude of convicts to

it (Alexey Yu. Oborsky, Alexey A. Chistyakov, Alexey

I. Prokopyev, Stanislav V. Nikolyukin, Kirill A.

Chistyakov, Larisa I. Tararina, 2018).

These problems and controversial situations

arising in practical work (Bertovskii L.V., Kurbatova

S.M., 2020) should be taken into account in the

imposition and execution of restriction of freedom.

The following provisions will be quite tangible in the

near future for the implementation of criminal policy

provisions:

1. Effectiveness of the prohibition on leaving

home at certain time of the day. Assuming the

implementation of the humanized vector of the

system of criminal punishment through the

introduction of restriction of freedom as it is

now, there is a need for the state to create the

widest set of special technical means of

monitoring restriction of freedom.

2. Prohibition to visit certain places, as well as

entertainment and recreational activities is

carried out with direct implementation of a

complex of monitoring means for persons who

have been imposed restriction of freedom.

Nevertheless, the problem is supplemented by

not quite clear legislative wordings of this

norm.

3. When changing the place of work, permanent

residence or temporary stay without the

permission of the penal enforcement

inspectorate, there are issues that can be solved

by a complex of law enforcement operations,

but these needs are not considered by the

current law enforcement legislation.

4. The obligation of the convicted person to attend

the penal enforcement inspectorate for

registration at intervals determined by the

court. In this case, the problem consists in the

absence in the court verdict of the frequency of

attendance of such a person to register with the

penal enforcement inspectorate in accordance

with Article 53 of the Criminal Code of the

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Russian Federation. However, it is necessary to

carefully consider the issue of fixing the proper

wording of this duty, taking into account the

provisions of the Resolution of the Plenum of

the Supreme Court of the Russian Federation of

December 22, 2015, No. 58, in which the

number of attendances for the registrations

with the penal enforcement inspectorate is

determined only by the court that imposed the

punishment.

5. Duly defined place of restriction of freedom in

the system of punishments. The current

practice of restriction of freedom allows

asserting unequivocally that the current type of

punishment is different from the type of

punishment that the authors of the current

Criminal Code of the Russian Federation

wanted to have initially. We are talking about

the volume, complex and nature of restrictions

inherent in this type of punishment. From this

point of view, the place of restriction of

freedom in the system of punishments should

be reconsidered. That is, we should not deny

that the criminal legislation that was in force

earlier provided for stricter measures toward

the convicted person.

In our view, restriction of freedom in the system

of punishments should be placed before compulsory

works, since the latter restrict the constitutional

freedoms (the right to free labor), although under a

court sentence. That is why, based on the degree of

punitive impact, restriction of freedom should be

placed immediately after the deprivation of a special,

military or honorary rank, class rank and state awards.

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