What is the measure of restraint? - LEGAL ANSWER
We often read in the media and on social networks. "So-and-so was arrested", "So-and-so was arrested" and so on.
Not only ordinary people, but also members of the media often misrepresent the imposition of administrative detention, pre-trial detention or imprisonment on a person.
What is the meaning of these concepts?
According to lawyer Shamil Pashayev, "deprivation of liberty" is a punishment imposed by a court. After the court verdict enters into force, a person shall serve his sentence in precinct-type, general, severe, special-type penitentiaries or prisons:
"According to Article 63 of the Constitution, everyone has the right to the presumption of innocence. Any person accused of a crime shall be presumed innocent unless his guilt is proved in accordance with the law."
That is, if a decision is made to impose a measure of restraint on a person, it does not allow him to be called a "criminal or murderer." The person remanded in custody is not yet a criminal, but a defendant. He is simply accused by the investigation of committing a crime, but this has not yet been proven. No one can be found guilty of a crime without a court order.
It should be borne in mind that not everyone who has been remanded in custody is sentenced to imprisonment. At the same time, the arrest of any person sentenced to imprisonment is not a measure of restraint. "
"Arrest is a measure of restraint. A measure of restraint is a measure of procedural coercion imposed on a suspect or accused by temporarily restricting his rights. The reason for choosing a measure of restraint is to ensure the normal course of the investigation by temporarily restricting the rights of the person."
In the current reality, the investigating authority selects a measure of restraint for each criminal case. However, the Criminal Procedure Code (CPC) stipulates that an accused or suspect may be investigated without remand in custody. At present, it is almost not used by investigators.
There are many types of restraint. These include arrest, house arrest, hostage-taking, bail, personal bail, organization bail, police custody, juvenile detention, command surveillance, and dismissal, ”the lawyer said.
Arrest, house arrest and bail may be imposed only by the court on the accused.
Arrest is the most resonant measure in society and the most demanded by victims. The public, the victim, and even law enforcement officials view the arrest of a person as a punishment, even if it is a measure of restraint. However, according to the law, arrest is not a punishment.
Because arrest is the temporary detention of the accused. The basis for the choice of arrest is to hide from the prosecuting authority, to obstruct the normal course of the preliminary investigation or trial by illegally influencing the persons involved in the criminal proceedings, concealing or falsifying materials relevant to the criminal prosecution. At the same time, reasons such as re-offending or endangering society, failing to respond to the summons of the prosecuting authority without good reason, or refusing to be prosecuted or punished in any other way, impeding the execution of a judgment. can also be.
The requirements of Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms must be observed when choosing a measure of restraint.
According to the precedents of the European Court of Human Rights, the use of pre-trial detention is usually allowed when the interests of society take precedence over the right to liberty, in which case the person's liberty creates negative emotions in society and is dangerous to society.
When choosing a measure of restraint, the reason for this must be substantiated and proved by facts. In some cases, the investigating authority formally lists the grounds for selection and writes that they are presumptive.
Various judgments of the European Court of Human Rights have stated that the choice of arrest as a measure of restraint must be based on facts, not probabilities.
Even if there are grounds for arrest, the CPC may require that a person convicted of a crime punishable by more than two years' imprisonment be detained only in order to prevent him from concealing himself from the prosecuting authority. It may also be applied to a person who has violated the terms of another previously imposed measure of restraint, or to whom a sentence of imprisonment has been imposed in order to ensure the execution of the sentence.
It is unfortunate that the investigating authorities ensure that only a measure of restraint is chosen in criminal cases involving any serious or particularly serious crime. The court provides the vast majority of prosecutors' submissions.
Following the Presidential Decree of 10 February 2017 on improving penitentiary activities, humanizing penal policy and expanding the use of non-custodial alternative punishment and procedural coercive measures, the courts reduced.
According to the precedents of the European Court of Human Rights, the extension of a measure of restraint against an accused person should not be based on the same grounds as the initial detention. This is a violation of the requirements of Article 5 of the ECHR.
Lawyer Shamil Pashayev