Article 107 of the Code of Criminal Procedure of the Russian Federation: house arrest and its conditions in a criminal case and the maximum term

What is the article of the Code of Criminal Procedure about?

There is a clause in the country's Constitution that every person has the right to move freely and choose his place of residence, but having committed a crime, the legislator can limit this right of a citizen. The essence of house arrest is that the suspect or accused is limited in the ability to move freely, but at the same time retains his right to live in his home. Of course, restrictions may apply to live communication with people, telephone conversations, as well as the use of other means of communication.

House arrest in the hierarchy of preventive measures is distinguished by a fairly high degree of severity, because it limits fundamental constitutional rights. The next most severe preliminary punishment is imprisonment.

By including house arrest in the system of preventive measures, the legislator expanded the possibilities of criminal proceedings and made pre-trial detention more humane.

While in familiar conditions, the accused person can take care of his relatives who are under his care. At the same time, he will comply with all the requirements of criminal proceedings. By placing a person under arrest, the legislator deprives him of the opportunity to participate in the lives of minor children and sick relatives, and this is already illegal in relation to them.

The purpose of house arrest is to ensure the proper behavior of the suspect while leaving him in conditions of mild isolation. Statistics show that sometimes humane methods of influencing criminals are much more effective than tougher sanctions.

Basic provisions

A preventive measure is chosen by a court decision if it is not possible to apply a milder form of restriction to the accused. The conditions of house arrest in a criminal case are clearly stipulated by the judge in each specific case. A person can be kept in isolation at the place of registration, at the place of actual residence, or in a medical institution if there is a deterioration in health.

If a person does not have registration or does not have a permanent place of residence, the judge cannot choose this preventive measure for him.

Control over the behavior of the suspect and his stay under conditions of restriction is carried out by the federal executive body. In order to monitor a suspected person, special audiovisual or electronic equipment can be used. The list of acceptable technical means is clearly approved by the Government of the Russian Federation.

The procedure for exercising control over the accused is regulated by Articles 107-108 of the Code of Criminal Procedure. Having considered the petition for choosing a preventive measure, the judge may decide to place him under house arrest or refuse to satisfy the petition. In certain circumstances, the judge has the right to replace house arrest with a milder form of influence, for example, bail. After making a decision, the judge sends the decision to the prosecutor, who in turn is obliged to immediately enforce the decision.

The accused must be delivered to the place of restriction of freedom by transport of the controlling authority. Employees of the executive service supervising the suspected subject are obliged to explain to him his rights, as well as the restrictions that he must observe for a certain time.

If the accused violates the established rules, at the request of the investigator, the measure of restriction of freedom may be replaced by arrest.

Types of punishments and terms

The Code of Criminal Procedure clearly regulates house arrest, but the judge can adjust the specifics of the restriction of a particular person at his own discretion.

In the order placing under house arrest, the judge may indicate the following restrictions:

Grounds and types of preventive measures in criminal proceedings of the Criminal Procedure Code of the Russian Federation

prohibition of leaving the premises;
communication with a certain circle of people;
sending and receiving mail, SMS messages and emails;
ban on telephone conversations and Internet access.

Depending on the severity of the charges, the suspect may be subject to some or all of the above restrictions. The list of restrictions can be adjusted by the court if there is a corresponding petition from the prosecutor, investigator or defense lawyer of the suspect.

There are no restrictions on telephone conversations in the event of calling ambulances, fire departments or law enforcement officers. The suspect must inform the control service about the advisability of making such calls.

Meetings between the accused and a legal defender or notary to transfer the right to represent interests take place within the place where the preliminary sentence is served. If the accused subject, while under house arrest, falls ill and requires hospitalization, the court may decide to replace or cancel this preventive measure. Sometimes a judge extends the defendant's house arrest, but changes the place where the sanction will be served.

The court order clearly defines the limits within which the accused can move freely and also specifies the appropriate time frame for compliance with the sanction. As a rule, the sanction is imposed for a period of no more than two months. House arrest in criminal proceedings is calculated from the moment the judge makes the relevant decision. If it is not possible to complete the preliminary investigation within two months, the judge has the right to extend the restriction.

The maximum period of house arrest, as in the case of pre-trial detention, is 18 months.

Few people know, but house arrest counts towards the sentence. After the judge has made a decision on imprisonment, the time spent in custody must be calculated against the period of execution of the sanction. House arrest is counted towards the term of imprisonment by calculating the day of arrest for the day of imprisonment.

Grounds for election

Single and separate reasons are identified for which a subject may be subjected to detention and the application of sanctions to suppress freedom and movement within the boundaries of residence.

The general reasons for imposing a sanction are the initiation of a criminal case regarding the commission of a criminal act for which the subject is accused. Submitting a conviction to a person. Rare situations when a person only raises concerns about the implementation of illegal intent, and this suspicion is justified by information from the criminal case.

Special reasons are considered to be reasoned arguments that a person, through his actions, can exert pressure or create all sorts of obstacles in the implementation of investigative actions:

will go on the run from interrogators and investigators;
will continue to engage in illegal activities (will direct the actions of others and give instructions or incite them to commit an act - in a situation where they are accused of incitement or developing a plan for criminal activity);
will threaten a witness or victim;
will destroy evidence (when communicating with interested parties in the outcome of the process, exert pressure on them through stalking, threats, and the actual execution of one’s intentions.
eliminates the facts of committing an offense in the case known to him at the location).

Both those and other grounds are taken into account when assigning a sanction, even if they have not yet been committed. That is, only a motivated assumption is sufficient that they can be carried out by the subject.

Again, the authorized bodies undertake to provide evidence of their assumptions (for example, a person’s purchase of train tickets to another city, testimony or appearance before the authorities of persons testifying to the person’s use of threats against them). But in practice, proving that a subject has a desire to evade justice turns out to be quite difficult.

In addition to the above reasons, when choosing a method of influence, a number of the following conditions are also taken into account:

how dangerous the offense is for society under Article 15 of the Criminal Code;
how the number of alleged socially dangerous acts committed is counted;
information about the person’s personality (no criminal record, repeated involvement in illegal activities, behavior itself and character traits - aggressiveness, inadequate reactions, etc.);
age of the subject - mitigation is granted to minors and elderly people;
well-being of the person – the presence of chronic diseases, the need for constant treatment (insulin administration for diabetes, the presence of disability). Alcoholism, drug addiction, gambling addiction, venereal diseases do not exclude the possibility of such influence;
the type of activities of the subject in everyday life, whether they are somehow connected with the commission of the offense (embezzlement of the budget of a government institution by the head).

If the established requirements are met by the investigation and inquiry authorities, the use of the method of influence will be legal.
The lack of a stable place of registration and ownership of property gives reason to believe that a person may have a desire to avoid justice. Active repentance may serve as a basis for mitigation. But the refusal to testify should not in any way affect the choice of sanction.

Comments on the article

When choosing a preventive measure in the form of house arrest, the choice of living quarters in which the suspect will be kept plays a huge role. A mandatory point when choosing residential premises is the right of ownership. If a person does not have such a right, then serving a sentence in this premises without registration is not allowed. If a person is a co-owner of the premises as a tenant, then the documents for renting the premises must be checked.

Sometimes the residential premises where the accused must serve his arrest are located outside the municipality where the preliminary investigation is being conducted. In this case, a restriction in the form of house arrest can be chosen only in cases where this circumstance does not prevent the defendant from visiting the investigator, inquiry officer and judge upon request.

If a court decision on house arrest affects the interests of other persons who also live at the specified address, they have the right to appeal the measure of influence by filing an appropriate petition. The sanction can be replaced by a judge if the owner of the residential premises does not consent to keeping the accused in his home.

The same point applies to the refusal to accept someone for serving house arrest by the head physician of a particular medical institution. In this case, the bailiffs must check whether the representative of the medical institution has the authority to refuse to comply with the court decision or not.

What information should the judge's decision contain?

The decree of the priest of truth and justice states:

The prerogative of leaving the place of residence and restricting freedom. If such a possibility is provided, then be sure to write down a schedule.
Places to visit that are prohibited.
Information about subjects with whom you cannot communicate.
Is it prohibited to receive, order, send mail?
Is it possible to negotiate via communications?
Which of the authorized persons exercises control.
What technical means of supervision are not prohibited and are allowed in relation to what is being monitored (video filming, audio recording).
Duration of restrictions.

This should be the content of the conclusion, since a person has the prerogative to obtain reliable information, and even more so at his own expense.

What does judicial practice show under this article?

House arrest, as a measure of influence on criminals, began to be used quite recently. Like any innovation, it is constantly criticized, because the procedure for detaining defendants at home has many shortcomings.

Terms of detention of accused and suspects under the Code of Criminal Procedure of the Russian Federation, Article 109

In most cases, a judge makes a decision to place a person under house arrest for crimes for which the maximum penalty does not exceed a three-year prison term. According to the legislator, such criminals do not pose a particular danger and to correct them, suppression in the form of restrictions on fundamental constitutional rights will be sufficient.

For crimes that require a more lenient sentence, the legislator imposes a written undertaking not to leave or bail.

Recently, very often, in order to control the accused, he is placed under house arrest with the obligatory condition of wearing an electronic bracelet. This electronic device is not visible to others, and it does not cause discomfort to the “owner”. At the same time, it sends a detailed report on the movement of the subject to the regulatory authorities.

This innovation allows regulatory authorities to promptly respond to violations of restrictions by suspects and stop them. The control body also does not need to come in person to check the place of residence of the convicted person, and this in turn leads to procedural savings.

Judicial practice on the issue of house arrest shows quite good results, because by keeping them at home, the legislator limits the ability of the accused to influence other participants in the criminal process, and also makes his further criminal activity impossible. Without resorting to harsh sanctions, the judge has the opportunity to effectively influence the offender.

What decisions are most often made under this article?

Most often, criminals who have committed official crimes or atrocities involving property are placed under house arrest. An example of a situation would be forgery of documents by an official. The maximum sentence for violating Article 327 of the Criminal Code is imprisonment for up to two years without qualifying charges. The judge took into account the gravity of the crime and made a decision to place him under house arrest. After being under house arrest for one month, the accused petitioned to replace the sanction with bail. Since the defendant did not violate the established rules, the judge approved the petition and released the defendant on bail.

According to statistics, people who do not violate a judge’s decision are often released on bail. The fact is that the judge himself understands the problems of being under house arrest for a long time. The main ones are outdoor walks and food necessary for the life of the defendant. According to the general rules, the accused must be taken out for a walk by correctional service workers, and this requires a lot of time for the supervisory authority, which he can spend on solving other, equally important tasks.