ПРАВОВА ПРИРОДА ОБМЕЖУВАЛЬНИХ ЗАХОДІВ У КРИМІНАЛЬНОМУ ПРАВІ УКРАЇНИ

Abstract

Domestic criminal law is being in constant dynamics, so it means that the norms of the current legislation are being improved, new, previously unknown, criminal-legal categories are being introduced, recommendations of international institutions are taken into account, etc. Not an exception in this process is Chapter XIII-1 of the General Part of the Criminal Code of Ukraine, which regulates restrictive measures (these provisions came into force on January 11, 2019). For the complete and comprehensive study of restrictive measures, the scientific interest is caused primarily by their legal nature. Restrictive measures are in the system of criminal-legal consequences applied to the person who committed a socially dangerous act. These criminal-legal consequences are applied through criminal-legal measures to counteract crimes. The system of criminal-legal measures can be summarized by categories: punishment, security measures, incentives (encouragement), measures of restoration of material (economic) relationships. In the context of considering the legal nature of restrictive measures, it is necessary to identify the nature of security measures, since the two concepts are linked to each other, moreover, the restrictive measures are one of the types of security measures. Security measures are mostly preventive and warning, and the ground for their application is a socially dangerous act. The type and term, for which a security measure can be assigned, is determined in each case individually based on the criminal offense and the person who committed the socially dangerous act. Today, the institution of security measures exists only at the theoretical level, but due to the recent reform of the criminal legislation, radical changes and corresponding regulation of this concept in the Criminal Code of Ukraine can be expected in the near future. Therefore, starting from the moment of the restrictive measures regulation in the Criminal Code of Ukraine, they have acquired the status of criminal-legal measures. Restrictive measures have a specific purpose – to protect the victim from a person who has committed a socially dangerous act, to protect against committing a socially dangerous act in relation to the victim in the future, to minimize the interaction between the person, who is in a dangerous state, and the victim, if such has the significant risks. Based on the above, it is necessary to distinguish the features of restrictive measures that will determine their legal nature: 1) they are the measures of governmental constraint, since they are applied to someone who has a legal right; 2) restrictive measures are regulated in Article 91-1 of the Criminal Code of Ukraine and refer to the measures of criminal-legal influence; 3) have a supplementary nature and belong to the category of other criminal-legal measures, specifically, security measures, since they are applied in addition to the punishment (except for the penalties related to imprisonment).