The content of the preventive measure of home detention

The criminal procedural provisions in Romania regulate a number of 5 preventive measures, of which 3 are custodial and two restrictive. Of these, the measure of house arrest, regulated as a novelty at the beginning of 2014, seems to be an intermediate form between judicial control and pre-trial detention, borrowing elements of content from both measures. Compared to the obligations that can be imposed on the defendant arrested at home, certain situations can be left uncovered by the legislator, which can make the measure seem ineffective in practice.

CONCERNING THE STRUCTURE OF PUBLIC LEGAL INTEREST IN CRIMINAL COURT PROCEEDINGS

В статье анализируется структура публичного законного интереса в уголовном судопроизводстве, входящих в него элементов на примере института домашнего ареста. Авторская модель публичного законного интереса участников уголовного процесса «привязана» к стадийности и может распространяться не только на вопросы, связанные с мерами пресечения. По мнению авторов, публичный законный интерес в контексте рассматриваемой проблемы воплощается в жизнь на основе нормативно установленного действия, содержащего конкретно сформулированные правила, устанавливающие четко определенные права и обязанности участников правоотношений. Данная деятельность сопряжена с определенными этапами (стадиями), которые в той или иной степени характерны соответствующей мере пресечения, и возможна в той стадии, где осуществляется оценка действий, предпринятых должностным лицом, осуществляющим производство по уголовному делу. Реализация публичного законного интереса, заявленного следователем, дознавателем на избрание домашнего ареста, зависит от того, как соответствующие устремления оценят другие должностные лица - руководитель следственного органа, прокурор (не обладающие правами реализации публичного законного интереса), то есть от их усмотрения. Законодатель не предоставляет следователю, дознавателю возможность «непосредственно» обратиться в суд - участнику процесса, наделенному правом реализовать их устремление на избрание меры пресечения. Подобные «преграды» не предусмотрены в законе для иных участников уголовного процесса, не наделенных публичной властью и стремящихся реализовать свой законный интерес. The article analyzes the structure of public legitimate interest in criminal proceedings, its constituent elements on the example of the institution of house arrest. The author's model of the public legitimate interest of participants in the criminal process is «tied» to the stage and can extend not only to issues related to preventive measures. According to the authors, public legitimate interest in the context of the problem under consideration is brought to life on the basis of a normatively established action containing specifically formulated rules establishing clearly defined rights and obligations of participants in legal relations. This activity is associated with certain phases (stages) that are more or less characteristic of the corresponding measure of restraint, and is possible at the stage where the actions taken by the official conducting the criminal proceedings are evaluated. The realization of the public legitimate interest declared by the investigator, the investigating officer for the election of house arrest depends on how the relevant intentions will be evaluated by other officials - the head of the investigative body, the prosecutor (who do not have the rights to realize the public legitimate interest), i.e. on their discretion. The legislator does not give the investigator, the inquirer the opportunity to turn «directly» to the court - a participant in the process, entitled to realize their intentions for the election of measures of restrain. Such «barriers» are not provided in the law for other participants in the criminal process who are not endowed with public authority and who seek to realize their legitimate interest.

Practical Application of the Provisions of the Code of Criminal Procedure Regarding the Measure of Preventive Arrest

Preventive measures are coercive criminal law enforcement institutions, aimed at the deprivation or restriction of individual liberty, by which the suspect or defendant is prevented from undertaking certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of its purpose. They have been instituted by the legislator for specific purposes, namely: to ensure the proper conduct of criminal proceedings, to prevent the abstraction of the suspect or defendant from trial and to prevent the commission of new offenses (art. 202 para. 1 of the Criminal Procedure Code). Preventive measures are not inherent in any ongoing criminal trial, but are exceptional measures (art. 9 para. 2 of the Criminal Procedure Code), and the court can decide to sease the measure or make use of the measure in the light of the specific circumstances of each case. Of the five preventive measures, three are deprivation of liberty - detention, house arrest and pre-trial detention, and two are non-custodial: judicial control and judicial control on bail. All these measures are only applicable to the natural person. Specific preventive measures may be taken against legal persons, but those are regulated by the provisions of art. 493 of the Criminal Procedure Code.

Implementation of the normative content of the principle of ensuring the right to liberty and security of person in the course of criminal procedural evidence

Consolidation at the level of the Constitution of Ukraine of the principle of ensuring the right to liberty and security of person necessitated the study of its essence and normative content in order to assess the correctness of the legislative approach to formulating the principle at the level of sectoral regulations. The normative content of the principle is enshrined in Art. 12 of the CCP. Analysis of the wording of this article allows us to identify three components of the principle, which reflect its requirements: prohibition, protection, security. The first element of the principle is the provisions of Part 1 of Art. 12 of the CCP. The key concepts that substantively fill this element are the following: restriction of freedom in criminal proceedings is possible only by a reasoned court decision; the reason for such a restriction is the suspicion of committing a criminal offense; restriction of liberty occurs in the manner prescribed by the Criminal Procedure Code. Procedures for restricting the right to liberty are corrected due to the importance of the restricted right. Judicial review proceedings on the prosecution's request to choose precautionary measures restricting liberty are characterized by its active position in proving the circumstances, which is the basis for restricting a person's liberty. The investigating judge, in the presence of a duly motivated and substantiated request, takes an active position solely to verify the information that is the basis of the request. The content of the element of protection consists of the provisions of the law on: the need to bring the detainee to the investigating judge as soon as possible and to check the legality and validity of the restriction of liberty; notification of the detention of the person of her relatives. The third element of the normative content of the principle is formulated in Part 5 of Art. 12 of the CCP. The law provides for criminal liability for knowingly illegal detention, pretext, house arrest or detention (Article 371 of the CPC), as well as the possibility of compensation for damage caused by illegal decisions, actions or omissions of the body carrying out investigative activities, pre-trial investigation, prosecution or court (Article 130 of the CPC).

Filhos da (in)justiça

The following article presents statements by pregnant or breastfeeding women to have been through custody hearings and criminal proceedings while released on bail, illustrating institutional responses to prenatal, childbirth, and post-natal care outside the prison environment. The aim was to document the possibilities for and difficulties of applying release measures, according to the women’s own narratives of violence. The qualitative research is based on an analysis of content and is organized according to thematic modules with an exploration of the material collected in interviews and field data. Several obstacles faced in the empirical study have been highlighted, as have the experiences of the women inside and outside the prisons, in terms of the exercise of motherhood, life with the child, the lack of state assistance, and the consequences of the imprisonment. The report from mothers to have been released on bail or placed under house arrest due to pregnancy demonstrates adequate pre-natal care and the children’s healthy development, although difficulties were still experienced during childbirth. The adoption of measures to release the women allowed for better access to healthcare, in line with the human right to safe motherhood. The satisfaction of being able to care for their children and live alongside family stood out as a positive factor. Situations of institutional violence still persist, given the insufficiency or absence of state protection.

Fatal blow: Urbicidal geographies, pax colonial and black sovereignty in the Colombian city

This article gives ethnographic form to Fanon’s warning that in the colonial world, “zombies are more terrifying than settlers,” by analyzing how racial mythologies produce spatial classifications of Black urban communities as unruly places and how Black individuals challenge their wretched condition by embracing a “program of complete disorder.” To do so, the article analyzes the short(ened) life of Paco, a young Black man under house arrest whose retaliatory violence against, and territorial dispute with, the police is an entry point for exploring resistance to urban coloniality in Santiago de Cali/Colombia. The article engages with the field of Black geography to propose a Fanonian reading of contemporary cityscapes as colonial spaces. Such colonial spatialities, it is argued, are not defined merely by subjugation to death but also, as Paco’s refusal to be killed may reveal, by an insurgent spatial praxis that might reposition the Black subject in relation to the city and the regime of Law.

An Analysis of the Poem “Prison” by Krishna Sen ‘Ichchhuk’ Translated by Govinda Raj Bhattarai

Poetry is a form of art; to express emotions and feelings by the use of distinctive style, meaning, sound and rhythm. The poem presents the rebellious nature of the revolutionists to defeat the arbitrary through literature and is much privileged towards independence. The poet imagines such an awful condition that happens in the insurgency period and he is not able to equivalent the freedom of choice and action. Oligarchy creates fascism, besides it, the poet has used the literary term, ‘my friend’ in each stanza to denote all victimized citizens and inmates who are anguished from despotism. To uplift from authoritarianism regime and to live with full sovereignty the communist movement had played an appreciable role in the context of Nepal. The literary genre which is characterized by literature and cultural form of early modern England that is written while the author is confined in a location against his wills, such as a prison, jail, or house arrest is known as prison literature. Thus, the message or underlying meaning of the poem is such that the poet alerts the emperor and leaders to adopt a democratic model.

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.

Individual Prevention in Criminal Procedure

This article explores the possibility of using criminal procedure and its measures for individual prevention of crime. The author tries to look at criminal procedure in an abstract way, not focusing on any concrete legal system. It is argued that the criminal process is traditionally reactive and this should not change. However, some measures of criminal procedure (arrest, pretrial detention, house arrest, suspension of driving licence, suspension at work) may be used as instruments of individual prevention when they are the best or only measures available and their application will not prejudice the case against the accused. Their use must be accompanied by relevant safeguards and allowed only if necessary and proportional.

Locked in the Home: A Critique of House Arrest as an Alternative to Imprisonment for Women Sentenced for Drug-Related Crimes

This article addresses the unintended consequences of using house arrest for female offenders as an alternative to prison for drug-related crimes. We propose that in patriarchal societies, locking women at home could imply moving them to another control device that may be as harmful as prison. Thereby, house arrest creates an unintended effect in which domestication in traditional gender roles ends up being the primary target of female offender punishment.