Особенности мотивировки и обжалования приговора в части применения заключения под стражу

Abstract

The study aims to (1) determine whether it is legitimate to choose a custodial measure of restraint to ensure the execution of the penalty of imprisonment under a sentence that has not entered into legal force and (2) assess, from the perspective of the principle of completeness and effectiveness of judicial protection, the possibility of appeal against the measure of restraint separately from the sentence. To reach the aim, constitutional legal and comparative legal approaches to the study of criminal procedural regulation and practice of its application were used. The author analyzed materials of criminal cases that ended with a sentence with a measure of restraint, including those subsequently appealed, conducted a survey and interviews with judges, used personal experience as a defense lawyer and representative of applicants in preparing and filing complaints to the Constitutional Court of the Russian Federation. As a result, the author found that the courts regard a guilty sentence with a sentence of real imprisonment as sufficient grounds for remanding a defendant in custody. Differences with the practice of several countries in Western Europe, in which persons convicted to imprisonment who are not in custody independently follow to the place of serving their sentence, were established. The author shows that the Russian practice of the “automatic” remanding in custody of a convicted person under the sentence which has not come into legal force contradicts the principle of presumption of innocence. It is recommended that in such cases the necessity for remanding in custody be assessed with due regard to the factor of the convicted person's evasion of punishment. The author demonstrates that the law does not provide a mechanism allowing the court to draw a reliable conclusion about a significant increase - in connection with the sentence - in the risk of evasion and to motivate its decision on the issue of the measure of restraint. The very possibility of creating such a mechanism is questioned. The author gives a critical assessment of the legal positions of the Constitutional Court of Russian Federation which do not allow to appeal the custodial measure of restraint separately from the sentence. The author concludes that the arguments given in the complaint on the measure of restraint, which are not related to challenging the sentence, can be considered by the court of appeal without delay. Proposals on the need to adjust the current legislation and law enforcement practice are formulated.