Criminal Punishment and Preventive Measures from the Perspective of Constitutional Analysis

Abstract

AbstractThe paper seeks to determine the conditions of constitutional legitimacy of preventive measures presented in the Russian legal space. The methodological basis of the study lies in the documentary analysis of decisions of the Constitutional Court of the Russian Federation, constitutional expertise, formal-logical prescriptions of sectoral legislation establishing preventive measures, and the study of law enforcement practice. The paper shows that modern crime prevention technologies and legal standards lead to the formation of a special sphere of preventive law with its inherent categories of pre-crime and pre-punishment. Compliance with constitutional standards for restricting human rights and freedoms is an essential condition for designing and applying preventive measures. Constitutional conditions of legitimacy are differentiated depending on the circumstances and goals of preventive measures. In order to specify them, the author proposes to distinguish between (1) right restrictive security measures (the government has the right to establish them at the legislative level as general measures applied administratively without taking into account the data on individuals’ identity) and (2) preventive right restrictive measures (the government has the right to apply them to persons demonstrating a heightened risk of committing or reoffending a crime). The preventive right restrictive measures must be strictly individualized and applied only based on a court decision.KeywordsConstitutionalization of criminal lawRestriction of rights and freedoms of citizensCriminal penaltyCrime prevention measuresPost-criminal control measuresJEL ClassificationK14