Form Of Detention Research Articles

THE ROLE OF DECISIONS OF THE CONSTITUTIONAL COURT OF UKRAINE IN ENSURING PROPORTIONALITY AND THE RULE OF LAW IN JUDICIAL PRACTICE

ANNOTATION: Introduction. In Ukraine, the principle of the rule of law is recognized and operates as a modern principle of the Ukrainian law system. The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it. The Constitutional Court of Ukraine decides on the compliance of the Constitution of Ukraine with the laws of Ukraine and other normative acts, and carries out the official interpretation of the Constitution of Ukraine. The Constitutional Court of Ukraine determines the norms of a law or other normative act as those that correspond or do not correspond to the principle of the rule of law. The constitutional principles of the rule of law and protection of human rights are systematically interconnected and are embodied in the norms of the Constitution of Ukraine, which, in particular, determine the right to judicial protection. Summary of research results. Decisions of the Constitutional Court of Ukraine are important for the development of doctrine in criminal and criminal procedural legislation of Ukraine. It should be noted that the current criminal procedure law does not determine, until the end, the regulation of the appeal against the decisions of the investigating judge during the pre-trial investigation; does not establish a norm according to which a precautionary measure in the form of detention or house arrest should be considered extended in the absence of requests from the parties to change or cancel such a measure, deprives the person of adequate protection against arbitrariness. Conclusions. Decisions of the Constitutional Court of Ukraine are important for the development of doctrine in criminal and criminal procedural legislation of Ukraine. The Constitutional Court of Ukraine promotes the quality of legislation by repealing unconstitutional provisions, is important for further improving the efficiency of judicial review and ensuring the unity of judicial practice, promotes the implementation of legal principles of predictability, rule of law, effective protection of human rights. Decisions of the Constitutional Court of Ukraine, its legal positions have a regulatory impact on the implementation of criminal procedural activities and are a means of eliminating gaps in criminal procedural legislation of Ukraine.

Administrative-Legal Issues of the Movement of Detained Vehicles To a Specialized Parking Lot and Their Storage

The subject of the study is the norms of the legislation of the Russian Federation on administrative offenses, which establish the powers of the subjects of the Russian Federation to determine the procedure for moving detained vehicles to a specialized parking lot and storing them. The object of the study is public relations related to the organization of the activities of service providers for the movement and (or) storage of detained vehicles, as well as the selection of these service providers. Within the framework of the article, the Author presents an analysis of federal and regional legislation in terms of the implementation of powers by public legal entities in this area of relations. The problems of the implementation of federal legislation, as well as the main approaches, similarities and differences of the "advanced" legal regulation of the relations under consideration at the level of the subjects of the Russian Federation are noted. The existing legislative models for involving local self-government bodies in the exercise of the authority to organize specialized parking lots for the storage of detained vehicles are analyzed. In the research paper, the Author presents options for determining the performers of services for the movement and (or) storage of detained vehicles, analyzes the legal grounds for the implementation of each of them, taking into account the existing law enforcement, including judicial practice. For the purpose of unified legal regulation of relations on the movement and (or) storage of detained vehicles, aimed at implementing measures to ensure the proceedings in the case of an administrative offense in the form of detention of a vehicle, the Author formulated proposals for the legislative consolidation of the federal authorities of the authority to determine the procedure for selecting performers of services for the movement and (or) storage of detained vehicles. To ensure equal opportunities for economic entities to carry out activities in the market of services for the movement and (or) storage of detained vehicles, the Author proposed, within the framework of the above procedure, to determine the requirements for the performers of these services, as well as the criteria for their competitive selection. At the same time, the paper substantiates the need for mandatory application of the territorial criterion for the selection of performers of these services for the movement and (or) storage of detained vehicles, taking into account not only the boundaries of the relevant municipality, but also the distance of specialized parking lots from socially significant objects.

The limits of the state's power to control crime

In the effort to control harmful behavior the state uses force against individuals, mainly in the form of detention and, in some places, execution. The Enlightenment, through Cesare Beccaria, gave us a model, sometimes called the Classical Model, for appropriate limits upon those uses of force. The state may use such force, according to this model, but only against individuals who have violated laws set down in advance by the people’s representatives, and only to an extent proportional to the harmfulness of the behavior, an amount also to be decided in advance by the legislature. The model was intended to limit discretion and thereby to limit arbitrariness, and it succeeded (I believe) to the extent reasonably possible. In this book (Rejecting Retributivism) —a book whose many virtues space prevents me from remarking upon in detail—Gregg Caruso proposes an alternative model which I will call the Quarantine Model. In the course of developing that Model he attacks our current system of crime control from two directions: he attacks the retributive base upon which the Classical Model been argued to rest, and he attacks the excesses of the existing system. His arguments on both scores are persuasive, but they do not support his proposed model against a classical, Beccarian alternative. First, the failure of retribution should not be mistaken for a failure of the Classical Model. That Model must be distinguished from the retributive justification that philosophers have attempted to fit it up with. My position in this is (with Caruso) that retribution doesn’t succeed as a justification for the classical approach; that it may be that the classical approach, insofar as it depends upon interfering in the lives of individual offenders, can never be fully justified; but (against Caruso) that it is nevertheless morally superior to any of the alternatives that have been proposed, including Quarantine. Second, it would be a mistake of the first order to suppose that the existing system of crime control is an example of the Classical Model. It is a confused hybrid of both classical measures and preventive measures of the sort Caruso would recommend. I find the current system as deplorable as Caruso does, but I do not consider objections to it to be a sufficient reason for rejecting the Classical ideal in favor of Quarantine. My project here is to set out three concerns about Professor Caruso’s Public Health-Quarantine alternative, which I will refer to simply as the Quarantine Model. The first is that the edges of his model simply cannot be softened in the way he would like to soften them. Both preemptive detention and indefinite detention are essential and ineliminable features of it. The second is that the justification for the model, self-defense and the defense of others, doesn’t seem workable and in particular doesn’t seem to limit the state’s use of detention in the ways he suggests. And the third and most troubling thing is that since we do not get to pick the political setting in which our proposals land, a system of broad discretion such as Professor Caruso proposes is dangerous. It leaves the door wide open to the very sorts of excess that motivated Beccaria to set down his model in the first place.

DETENTION AND HOME ARREST: THEORETICAL AND LEGAL ANALYSIS OF THE APPLICATION

The article presents the results of a comparative legal analysis of the use of preventive measures in the form of detention and home arrest. Both of these measures are forms of isolation from society of suspects, accused persons, and defendants in criminal proceedings. Thus, detention as a preventive measure, as a general rule, is applied by a court decision against a suspect or accused of committing crimes for which the criminal law provides for a penalty of imprisonment for a term of more than three years, if it is impossible to apply another, more lenient, preventive measure. When choosing a preventive measure in the form of detention, the judge's decision must specify the specific, factual circumstances on the basis of which the judge made such a decision. Such circumstances may not be data that has not been verified during the court session, in particular the results of operational search activities, submitted in violation of the requirements of Article 89 of the Code of Criminal Procedure of the Russian Federation. At the same time, house arrest, along with detention, is classified as a preventive measure that restricts freedom. These measures are identical in terms of preventing consequences. However, this circumstance is often not taken into account by the court. This conclusion is supported by statistics showing a low level of use of home arrest. The article examines the evolution of the legal regulation and application of detention and home arrest. The conclusion is made about the historical continuity of both positive and negative experiences. In particular, the use of detention as a means of influence to obtain "necessary evidence", a punitive measure, which does not follow from its essence, is traced. Unfortunately, this practice still exists today, as confirmed by the examples given in the article. The article examines the conceptual aspects of the use of detention and home arrest as an alternative to isolation from society. Proposals for amendments to the criminal procedure legislation aimed at minimizing abuses in the appointment and execution of procedural preventive measures in the form of detention and home arrest are formulated and justified.

The Problems of Implementing the Procedural Relationship Between the Prosecutor and the Investigator on Applying a Measure of Restraint in Judicial Control Proceedings (Through the Example of Detention)

Introduction: the paper examines the problems of implementing the procedural relationship between the prosecutor and the investigator in the course of judicial control proceedings when applying the measures of procedural coercion in the form of detention. In the doctrine of criminal procedure, there are different positions of processualist scientists on improving the criminal procedure activities of the prosecutor and the investigator at the stage of deciding on applying a measure of restraint in the form of detention. The authors took a keen interest in the lack of a legitimate determination of the prosecutor’s opinion on the validity and legality of the request of the preliminary investigation bodies to choose detention in the course of judicial control proceedings. It is the written opinion of the prosecutor as a form of intervention at the pre-trial stages, especially in the course of judicial control proceedings when investigating the issue of choosing detention that contributes to the court’s taking a legitimate and reasoned decision. In this context, the authors set the goal of finding and improving the efficiency of the procedural model of relations between the prosecutor and the investigator on the issue of resolving a preventive measure in the form of detention in the course of judicial control proceedings. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are the methods of cognition, comparative law and historical analysis. Results: the authors analyzed the provisions of the criminal procedure norms of the Soviet period on this issue which helped to identify a number of shortcomings in that period and in the present one, which were inherited from the past. Conclusions: the existing procedural model of interaction between the prosecutor and the investigator in a detailed study of the problem of preventive measures in the form of detention, regulated by the current criminal procedure law, does not correspond to the current state policy in relation to the Russian prosecutor, who acts on behalf of the state at all stages of criminal proceedings. In this regard, the authors, based on the analysis of numerous positions of processalist scientists, as well as the judicial and investigative practice, proposed a procedural model of interaction between the prosecutor and the investigator during the judicial control proceedings, which can be applied in regulating the relationship between the prosecutor and the investigator when considering the issue of applying a measure of restraint in the form of detention.

Pelaksanaan Pemberian Pembebasan Bersyarat (Pb) pada Warga Binaan di Rumah Tahanan Negara Kelas II b Gianyar pada Masa Pandemi Covid 19

Indonesia is a country of law, therefore the imposition of sanctions in the form of detention is a way to provide a deterrent effect on the actions committed, namely by providing guidance, granting the right to parole is a form of guidance aimed at enabling prisoners to interact healthily with the community. The purpose of this research is to analyze the legal arrangements regarding the system of guiding prisoners through efforts to grant parole rights at the Gianyar Class II B State Prison and the obstacles in the implementation of the provision of parole in the Gianyar Class II B State Prison during the Covid-19Pandemic. The method used is empirical with legal data sources in the form of secondary and primary with data collection techniques, namely through interviews, after the data is systematically compiled and linked from one data to another then will be explained clearly and in detail. The result of the research reveals that the Regulation of the Minister of Law and Human Rights Number 3 of 2018 concerning the terms and procedures for granting parole which is used as a legal basis, but in its implementation there are several obstacles including prisoners who violate disciplinary rules and the public is worried about being exposed to Covid-19from prisoners.

К вопросу о полномочиях следственного судьи при применении меры пресечения в виде заключения под стражу в уголовном судопроизводстве Киргизской Республики

The article is devoted to the issue of the powers of the investigating judge in the application of a preventive measure in the form of detention in criminal proceedings of the Kyrgyz Republic. The relevance of the study is due to the introduction of a new procedural figure of the investigating judge exercising judicial control in pre-trial proceedings, as well as applying measures and restricting the rights and freedoms of the suspect. The powers of the investigating judge to apply a preventive measure in the form of detention affect the right to freedom guaranteed by the Constitution of the Kyrgyz Republic. In this regard, the issue of considering the powers of the investigating judge regarding the application of the above preventive measure is relevant. The object of the research: an investigating judge-judge who applies measures restricting the rights and freedoms of a suspect, exercising judicial control over the legality of procedural actions and decisions of persons carrying out pre-trial proceedings and the prosecutor. The subject of the study: the powers of the investigating judge to apply, refuse restraint in the form of detention, as well as extend the period of detention.

Судебная юрисдикция в сфере применения меры пресечения в виде заключения под стражу

The article deals with a set of problems related to judicial jurisdiction in the application of preventive measures in the form of detention. A number of additions to existing legislation on the use of preventive measures in the form of detention are proposed. This article deals with the peculiarities of the application of a preventive measure, such as detention. The main features of its use were established. The procedural characteristics of such a type of preventive measures as detention are studied, the procedural measures related to the detention of a suspect/ accused/defendant are analyzed, the provisions of the current criminal procedure law are analyzed. It is stated that ensuring the rights of suspects accused when choosing and applying a preventive measure in the form of detention against them is faced with difficulties, primarily due to the fundamental problems of the entire Russian criminal proceedings: the excessive length of the proceedings, its excessive bureaucratization, formalism, the hypertrophied role of the preliminary investigation before the trial, poor conditions of detention and others. Materials of St. Petersburg, Arkhangelsk region are used.

Https://eurasialaw.ru/doi/yuridicheskie-nauki/refusal-of-the-court-to-place-the-accused-in-custody-analysis-of-the-causes-and-consequences

The article analyzes the reasons and consequences of the courts’ decisions to refuse to choose a preventive measure in the form of detention. The author concludes that the adoption by the courts of decisions to refuse to detain the accused is determined not only by investigative, but also by judicial errors. The results of the judicial review on appeal of the court’s decision to refuse to arrest the accused is significantly influenced by a legally significant circumstance that is subject to study and assessment by the higher court: the behavior of the person involved in the criminal case within the framework of another measure of restraint chosen by the investigator or the court.

Viral Injustice

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception. This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure. We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes. We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Деякі питання діяльності прокурора при виконанні судових рішень, пов’язаних із застосуванням примусових заходів медичного характеру

У статті розглядаються окремі питання діяльності прокурора при виконанні судових рішень, пов’язаних із застосуванням примусових заходів медичного характеру. Проведено аналіз чинних законів та законодавчих змін щодо функції здійснення органами прокуратури нагляду за додержанням законів при виконанні судових рішень у кримінальних справах, а також при застосуванні інших заходів примусового характеру, пов’язаних з обмеженням особистої свободи громадян.

Особенности избрания меры пресечения «домашний арест» в отношении несовершеннолетних

In the article, the author turns to the study of the peculiarities of choosing such a preventive measure as house arrest for minors. Due to the fact that the Code of Criminal Procedure of the Russian Federation does not precisely define cases when a court must elect a house arrest in relation to minors, in practice there are often difficulties in which cases to choose such a preventive measure as detention, and in which house arrest. In the work, the author attempts to determine the essence of such a preventive measure as house arrest and the peculiarities of his election in relation to minors, and also considers the prohibitions and (or) restrictions to which minors cannot be subjected. The positions contained in the resolution of the Plenum of the Supreme Court “On the practice of the application by the courts of legislation on preventive measures in the form of detention, house arrest and bail” are analyzed. The author expresses the opinion that it is inadvisable to choose such a preventive measure as house arrest for minors. Based on the study, the author makes recommendations on the possibility, at the discretion of the court, to make adjustments to the prohibitions and (or) restrictions to which a minor suspect or accused will be subjected to whom such a preventive measure as house arrest is chosen.

The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed

We should send offenders to prison as punishment, not for punishment. This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States. Many of these prisoners spend up to 23 years in a small cell with no contact with any person. The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners. Understandably, there are growing calls to abolish confinement of this nature. However, there are no signs that abolition of supermax conditions will occur soon. Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined. Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions. In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term. We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term. Hard-time credits are justified by the principle of proportionality, which stipulates that the seriousness of the crime should be matched by the hardship of the penalty. The main cohort of prisoners that should not be eligible for hard time credits are serious sexual and violent offenders who are at risk of re-offending, as determined by the application of a risk assessment instrument. Infringement of the proportionality principle is justified in these circumstances because of the more pressing need to pursue the ultimate aim of sentencing: community protection. Providing hard-time credits for most prisoners who are forced to endure supermax conditions will not overcome the ethical problems associated with this form of detention—which are especially acute given that African American and Hispanic inmates are disproportionality subjected to supermax confinement. However, the reform proposed in this Article will provide a pragmatic solution to a considerable failing in our sentencing and prison systems and operate to make authorities less inclined to subject prisoners to cruel conditions in a manner that does not compromise community safety.

ТРИМАННЯ ПІД ВАРТОЮ В КРИМІНАЛЬНОМУ ПРОЦЕСІ РЕСПУБЛІКИ БІЛОРУСЬ: УДОСКОНАЛЕННЯ РЕГЛАМЕНТАЦІЇ ТА ПИТАННЯ ДОКАЗУВАННЯ (ПОРІВНЯЛЬНО-ПРАВОВИЙ АНАЛІЗ)

The article analyzes the peculiarities of applying a measure of procedural coercion in the form of detention in the criminal procedural legislation of the Republic of Belarus, as well as in the criminal process of Ukraine and the Republic of Kazakhstan. The positions of scientists in the field of criminal procedure, who conducted research on this issue, are analyzed. The key positions of the proceduralists regarding the basic regulatory aspects of the application of a preventive measure in the form of detention are considered. Attention is focused on the fundamental provisions of the functioning of the system of procedural compulsion and the application of a preventive measure in the form of detention in custody in particular. The analysis of the positions of the legislators of the Republic of Belarus, the Republic of Kazakhstan and Ukraine regarding the issue of normative regulation of the procedure for applying a measure of procedural coercion in the form of detention is carried out. The authors of the article emphasize the key aspect of the preventive measure in the form of detention in the form of its extraordinary impact on the observance of human and civil rights and freedoms in criminal proceedings. This circumstance is especially relevant in respect of the right of participants in criminal proceedings to freedom and personal inviolability. In this regard, theoretical concepts are considered and the content of international law on this issue is analyzed. The practical feasibility and normative possibility of using other, more humane methods of influencing suspects accused in criminal proceedings are analyzed. The article focuses on the normative procedure for the application of bail as an alternative procedural measure of isolating a person during detention in the legislation of the above states. The article analyzes the procedural features of the normative regulation of the use of pledge in the legislation of Ukraine and the Republic of Kazakhstan. The author's position on these issues, as well as proposals for optimizing the criminal procedural legislation of the Republic of Belarus regarding the regulation of the use of detention are formulated.

Admission of a Notary to Entrepreneurs in Custody: Problems of Implementation

The relevance of this work is due to innovations in the Russian criminal procedure legislation, according to which the right to see a notary was provided for entrepreneurs in custody. The author has studied the notary’s access to such business entities as individual entrepreneurs in the case of a crime committed by them in connection with their business activities and (or) the management of their property used for business purposes, as well as members of the management bodies of a commercial organization in connection with the exercise of their powers to manage the organization or in the implementation of business activities by a commercial organization. On the basis of the Russian criminal procedure and notary legislation, the author indicates possible options for applying a preventive measure in the form of detention in respect of persons who have committed crimes in the sphere of business activity; the issue of changing the legislation governing the admission of a notary to persons in custody accused of committing crimes in the sphere of business activity, and the conditions for carrying out notarial actions is considered. The author analyzes the issue of the need to perform notarial actions in relation to citizens of another category (not entrepreneurs), in respect of which a preventive measure in the form of detention has been chosen. The issues of possible abuse of the right to meet with a notary, carrying out notarial actions and registration of notarial documents are considered.

Application of preventive measures in the criminal process: current issues

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

Prospects for Expanding the Subject of Penal Law

The paper notes that the issue of the independence of penal law as a branch is not relevant; still the issue on the subject of this branch of law, which is understood in a narrow (classical) and broad senses, remains acute. The classical definition of the subject consists of social relations arising in the execution of all punishments, and now other measures of a criminal law nature. Currently, scientists are increasingly talking about the need to expand the subject of penal law due to the inclusion of public relations in the execution of measures of restraint in form of detention and house arrest; assistance in social adaptation of the persons released from serving of punishment and other measures of criminal legal character; and when applying the non-punitive means of influence on prisoners.The author does not agree that the penal law should regulate only punishments and other measures of a criminal legal nature, which are a form of realization of criminal responsibility. In this regard, compulsory medical measures, confiscation of property and a court fine cannot be considered as such. If we consider criminal responsibility in a broad sense — as having a coercive rather than punitive character, then all measures of a criminal nature should be covered by it and be the subject of this branch of law. Penal law is not penal executive law but penal law.The paper notes that not legally, but practically, the execution of detention and house arrest is included in the subject of penal law, as they are executed by institutions and bodies of the Federal Enforcement Service and are included in the course of penal law at the Russian Federal Enforcement Service universities. The author of the paper admits that these preventive measures may be the subject of penal law, which, as in relation to criminal law, is the executive branch in relation to criminal procedure law.Many scholars believe that post-penitentiary relations are the subject of penal law. Agreeing with them, the author of the paper believes that in this case it is necessary to provide for the purpose of penal legislation — the resocialization of convicts, which includes correction, preparation of convicts for release and their social adaptation after release from punishment. As an example, the author refers to the regulation of such relations in the Penal Code of the Republic of Belarus and Ukraine.Thus, the subject of penal law should be the criminal executive social relations that develop in the implementation of compulsory institutions of criminal and criminal procedure law, having an executive direction.

Заключение под стражу: причины и следствия необходимости введения альтернативных мер пресечения в уголовном процессе России

The article considers the position of the European Court of human rights in relation to the existing practice of election and application of preventive measures in the form of detention. The new measure of restraint «Prohibition of certain actions» introduced by the Federal law of April 18, 2017 (article 105.1 of the Code of criminal procedure) in the system of existing preventive measures in terms of alternatives to detention is being investigated.

1894년 「감옥규칙(監獄規則)」 성립과 근대 감옥제도의 도입 양상

The essence of the modern penal system was the imprisonment. During the transition from the pre-modern era to the modern era, the corporal punishment that directly afflicted the prisoner"s body in front of the public was replaced by a form of detention which separated the prisoner from society in accordance with the offense committed. This reform requires a change in prison system. The reformers at the end of the Joseon Dynasty introduced the Western prison system, but because of the political situation, it was impossible to execute it. The reform of the prison system was possible only after Japan became involved in the internal affairs of Joseon. However, since the Joseon society was not accustomed to imprisonment, the prison system introduced by Japan suddenly faced various limitations. This was because the modern prison system introduced as part of the Kab-o reformatiom(갑오개혁) was not free from the limit of heteronomy, like Kab-o reformatiom" itself.

Habeas corpus as a remedy for deprivation of the right to personal liberty: contemporary developments in Canada and South Africa

ABSTRACTThe Canadian public law recognises the writ of habeas corpus as an essential remedy against unlawful detention. Apart from the applications for the release of persons unlawfully incarcerated, there are applications of the writ that illustrate its use to release persons from particular form of detention although the person will lawfully remain under some other restraint of liberty. South African courts like their Canadian counterparts uphold the inherent right of every subject, and in every stranger in the country to issue out a writ of habeas corpus. This right is given not only by the English common law, but also by the South African Roman-Dutch equivalent – interdictum de libero homine exhibendo. However, a close scrutiny of at least one of such decisions proceeding from the lower to the highest court in the country reveals a disconnect in the judicial pronouncements on the link between actio popularis and interdictum de libero homine exhibendo; and the distinction between a bail application and interdictum de libero homine exhibendo. The level of consistency enjoyed by the Canadian courts decisions have not been attained in South Africa.