Prohibition of certain actions as a preventive measure: concept, legal nature

Filimonova Marina Dmitrievna Associate Professor; Department of Management of Crime Investigation Bodies; Academy of Management of the Ministry of Internal Affairs of the Russian Federation 125993, Russia, Moscow, Zoya and Alexander Kosmodemyanskikh str., 8 fmd38@yandex.ru Other publications by this author

The legislative vector chosen to date, aimed at humanizing the criminal procedure policy, led to the adoption of Federal Law No. 72-FZ dated 04/18/2018 "On Amendments to the Criminal Procedure Code of the Russian Federation regarding the Election and Application of Preventive Measures in the form of a ban on Certain Actions, bail and House Arrest" (hereinafter - the Law on Prohibition), which supplemented the list of elements of the system of preventive measures in force at that time with a ban on certain actions.

In the scientific community, the above-mentioned measure has actually been the subject of extensive discussions since its inclusion in the arsenal of the mechanism of criminal procedure regulation. At the same time, the emphasis on issues concerning the legal nature and, in particular, the concept of the institution in question is only occasionally found in scientific works.

The method of reviewing scientific research revealed that the definitions of the concept of prohibition of certain actions existing in the doctrine of criminal procedure, as a rule, are reduced either to a discussion of the nature of procedural restraint as such, or the nature of coercion in general. Deducing the concept of prohibiting certain actions from the normative content of Article 105.1 of the Code of Criminal Procedure by listing the established prohibitions also seems incorrect, since the volume, not the content of this concept, is formed in this way.

Thus, the prohibition of certain actions, according to A. O. Beketov, represents a certain synthesis of the duties of the suspect (accused) to appear on time at the summons of the preliminary investigation or court authorities, as well as "comply with one or more prohibitions provided for in Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation" ^{[2, p. 52]}. As noted by the author above, listing the scope of actions cannot serve as a means to clarify the essence of the preventive measure in question.

O. D. Vastianova, in turn, defines the prohibition of certain actions as "a preventive measure chosen by a court decision against the accused (suspect) if it is impossible to apply another, milder preventive measure," thereby duplicating the provisions of Part 1 of Article 1051 of the Criminal Procedure Code of the Russian Federation ^{[3, p. 31]}. The definition of the essence of the specified measure by this author also occurs by listing the duties of the person suspected (accused) of committing a crime.

To the author, the derivation of provisions on the essence and concept of prohibiting certain actions in this way seems insufficiently justified from a scientific point of view, since essence means "the meaning of this thing, what it is in itself, unlike all other things" ^{[10, p. 550]}. As a result of cognition of the essence, an understanding of the basic idea, the purpose of a particular object, phenomenon, process is gained.

The possibility of establishing the meaning, the main idea of this preventive measure is seen in the process of analyzing the complex of factors that prompted the legislator to innovate. To do this, let's turn to the text of the explanatory note of the draft Law on Prohibition. According to the specified official document, five circumstances should be considered as the social conditionality of the appearance of a new preventive measure. Ensuring the rights of the individual and the enforcement of generally recognized international norms of law ^[7] (among the first two) have a fairly general character, i.e. they can be recognized as the justification for almost any draft law in the industry under consideration. The other three – increasing the effectiveness of criminal prosecution, saving federal budget funds and reducing reputational losses ^[7] – occupy the status of a direct set of determinants that led to the procedural regulation of the prohibition of certain actions.

The effectiveness of criminal prosecution is made dependent by the subjects of legislative initiative on the emergence of effective alternatives to detention – that is, a preventive measure involving isolation from society.

It seems that bail and house arrest have not become a fully realistic alternative to isolating the suspect (accused) from society, primarily in quantitative terms. Incarceration still dominates the proportion. So, for the period from 2018 to 2023, the number of petitions filed for the election of detention amounted to 114,300 (102,205 satisfied), house arrest – 7,170 (6,329 satisfied), in the form of bail – 122 (108 satisfied) ^[9].

The legislator assumed that the prohibition of certain actions in this context would act as a means of coercion, providing the necessary guarantees for the completion of the investigation without unreasonable delays entailing violation of procedural deadlines. However, statistical data illustrating the practice of choosing a preventive measure in the form of a ban on certain actions also raise certain questions (from 2018 to 2023, the number of petitions for the election of this measure is 14,836, of which 13,143 were satisfied) ^[8].

Further, the reduction of reputational losses – we are talking about the need to introduce new means of procedural coercion to prevent the onset of reputational risks, the cause of which, as a rule, is the detention during the rehabilitation procedure of the accused (defendant, convicted).

And the third component – saving federal budget funds – the new measure, according to the legislator, will reduce the financial burden on the state budget by optimizing the number of persons in custody, thereby contributing to reducing the infrastructural workload of pre-trial detention facilities.

Thus, the complex of factors determining the adoption of a ban on certain actions, provided for in official documents, which allows us to establish the purpose of the preventive measure in question, is considered.

Additionally, as a factor that led to the inclusion of the prohibition of certain actions in the system of preventive measures, A. S. Petrovskikh and E. V. Smakhtin highlight the need to create a mechanism to maintain a balance between the interests of the prosecution and "the defense side, whose activities are aimed at implementing private principles" ^{[6, p. 19]}.

Indeed, the exclusion of excessive and inappropriate restrictions on the rights of the suspect (accused) acts as the purpose of the prohibition of certain actions. Consequently, the main idea of the legislative initiative under consideration should be considered to be aimed at reducing the negative impact of criminal procedural coercion on the individual without threatening the effectiveness of criminal proceedings.

In other words, the complete isolation of a person from society is not inherent in the prohibition of certain actions, which ensures the preservation of social ties within certain restrictions. At the same time, preventing the continuation of criminal activity, evasion from appearing before an investigator (inquirer) or in court, destruction of evidence, negative impact on participants in criminal proceedings, and other actions that create obstacles to criminal proceedings (Part 1 of Article 97 of the Code of Criminal Procedure of the Russian Federation) are also the direction of application of this measure.

It should be noted the flexible nature of this measure, which makes it easier for the prosecution to justify the necessity and expediency of her election before the court.

As is known, any process of defining a concept is traditionally carried out through the specification of the generic category and specific differences of the concept in question. This approach, according to the author of this publication, seems to be the most promising. The generic category for prohibiting certain actions is "prohibition" as a method of legal regulation, which is a formalization of the prohibition method, by which S. S. Alekseev proposed to understand "imposing on a person the obligation to refrain from certain behavior, from committing certain actions" ^{[1, p. 139]}.

Prohibition in law acts as an effective way of legal regulation, ensuring order in society and the state, along with permission and obligation. The prohibition is the imposition on legal entities of a negative obligation – the obligation to refrain from committing certain actions contrary to the law, the violation of which entails legal liability. The obligation, in turn, prescribes the subjects to take active actions (a positive obligation). Permission, on the other hand, consists in granting individuals permission to carry out certain actions under specific conditions.

At the same time, the ban acts as an instrument of the state's legal policy – the activities of "state bodies and civil society institutions to create an effective mechanism for legal regulation" ^{[4, p. 3]}. The dominance of one of the previously described methods in the mechanism of legal regulation forms a prohibitive or permissive type of legal influence (legal policy).

As a method of procedural influence, the prohibition of certain actions is an element of the mechanism of criminal procedural regulation - a special case of prohibition in law. According to I. G. Smirnova, the prohibition of certain actions is a way to realize the main purpose of criminal proceedings, designed to protect the rights of "the individual, society and the state not only from criminal encroachments, but also from their consequences, to ensure a balance of legitimate interests and security" ^{[9, p. 65]}.

At the same time, the prohibition of certain actions performs a deterrent and binding function. The first function is aimed at creating legal barriers to the realization of a person's private interest to the detriment of public or private interests. The second, in turn, involves the commission of active actions by a person (prohibition from evading the duties assigned to a person).

Further, a distinction is required between criminal procedural and criminal law prohibitions, subject to the general principles of distinguishing prohibitions in substantive and procedural law.

A criminal prohibition should be understood as an instruction "establishing the obligation of a person not to commit (refrain from committing) socially dangerous acts recognized by criminal law as crimes" ^{[5, p. 477]}. While the criminal procedure prohibition acts as an instrument of legal influence, ensuring lawful and effective criminal proceedings when creating or threatening to create obstacles to the implementation of full, comprehensive and objective criminal proceedings.

As a result, the criminal law prohibition is a "strict" means of deterring illegal behavior of a person in terms of committing crimes, and the criminal procedure prohibition contributes to the realization of criminal liability resulting from the commission of a criminally punishable act.

Further, based on the analysis of a specific list of prohibitions of this preventive measure, regulated by Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation, the author finds it possible to classify these prohibitions, depending on their nature, into:

1. Spatial prohibitions that set a limit on the possibility of moving the suspect (accused), i.e. restrictions on spatial (territorial) mobility. These include:

– prohibition of leaving the premises in which a person legally resides during certain periods of time (paragraph 1, part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation);

– prohibition of being in certain places or at a certain distance from an object, as well as visiting and participating in certain events (paragraph 2 of Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation).

2. Communication prohibitions, which should be understood as restrictions that restrain or narrow the possibilities of communication of the suspect (accused), as well as the use of technical means for communication. The following list belongs to this group:

– prohibition of communication with certain persons (clause 3, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation);

– a ban on sending and receiving postal and telegraphic items (clause 4, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation);

– a ban on the use of means of communication and resources of the information and telecommunication network "Internet" (clause 5, part 6, Article 105.1 of the Code of Criminal Procedure of the Russian Federation).

3. Licensing and permissive prohibitions are restrictions that are subject to application to a suspect (accused) in the field of public relations, requiring the presence of a certain document for the implementation of specific activities issued by an authorized body. Among this group of prohibitions is a ban on driving a vehicle if the committed crime is related to violation of traffic rules and operation of vehicles (hereinafter – traffic regulations) (clause 6, Part 6 of Article 105.1 of the Code of Criminal Procedure of the Russian Federation).

Further, by the formal legal method, it was established that the criminal procedure codified act does not provide any generalizing concept for the actions prohibited by Article 1051 of the Code of Criminal Procedure of the Russian Federation that answers the question "prohibition of what actions?". Due to the heterogeneity of their nature, which is illustrated by the above classification, the legislator uses the concept of "certain", implying that their list is "defined" in the criminal procedure law.

And the last component of the name of the new preventive measure is the term "actions", which indicates the need for a person to refrain from committing an active act, and not from refusing to commit it (inaction).

Thus, synthesizing the above, the author comes to the following conclusions.

Firstly, the purpose of prohibiting certain actions as a preventive measure is the following components: 1) ensuring the necessary guarantees for the completion of the investigation without unreasonable delays entailing violation of procedural deadlines; 2) preventing the occurrence of reputational risks, the cause of which, as a rule, is detention during the rehabilitation procedure of the accused (defendant, convicted); 3) reducing the financial burden on the state budget by optimizing the number of persons in custody thereby contributing to reducing the infrastructural workload of pre-trial detention facilities; 4) eliminating excessive and inappropriate restrictions on the rights of the suspect (accused).

Secondly, the main idea of introducing this preventive measure is aimed at reducing the negative impact of criminal procedural coercion on a person without threatening the effectiveness of criminal proceedings.

Thirdly, the legal nature of the prohibition of certain actions is as follows: the generic category for this measure is "prohibition" as a method of legal regulation that functions along with permission and obligation.

As a method of procedural influence, the prohibition of certain actions acts as an instrument of the mechanism of criminal procedural regulation - a special case of prohibition in law.

As a result of the differentiation of criminal procedure and criminal law prohibitions, it is concluded that the criminal procedure prohibition acts as an instrument of legal influence that contributes to the realization of criminal responsibility by ensuring lawful and effective criminal proceedings when creating (threatening to create) obstacles to the implementation of full, comprehensive and objective criminal proceedings.

Fourth, the prohibitions provided for in Part 6 of Article 105.1 of the Criminal Procedure Code of the Russian Federation, depending on their nature, are classified into spatial, communicative or license-permissive prohibitions.

Fifthly, the prohibition of certain actions should be understood as a method of criminal procedural regulation designed to exercise a restraining and binding function of suppressing influence on the personality of a suspect or accused in the interests of criminal justice, which is a legally established minimum possible restriction on freedom of movement (stay), the implementation of licensing and licensing activities and (or) communication individuals without isolation from society.