Modernization of Bail as a Component of Criminal Procedure Restraint in Russia and Abroad

Abstract

Measures of criminal procedure compulsion should, in the first place, ensure the enforcement of criminal procedure on a criminal case, i.e. prevent the suspect or the accused person from going into hiding, committing a new crime, continuing criminal activities, influencing in any way other participants of the criminal process or the proceedings. The Criminal Procedure Code of the Russian Federation foresees bail as one of preventive measure alternative to detention. Bail is not often used in the Russian Federation. According to statistical data from the Court Department of the Supreme Court for the last five years, the number of bails in Russia is negligibly small compared to other preventive measures. On April 18, 2018, the federal law № 72-ФЗ was enacted to change this situation; it did not only introduce changes in the existing preventive measures, but added a new measure prohibiting the performance of certain actions. Such a component of the restriction measure under consideration as the object of bail was examined for the first time in the light of a radical renewal of the existing legal model through the development of an alternative, principally new concept based on the economic interests of the subject of criminal procedure relations which borrowed its key features from the institutes of civil and financial law. It is difficult to notice the impact of this improvement in practice. When bail was chosen as a restrictive measure, the number of cases not only stayed at the same level, but even went down. Due to this, it is relevant to research an opportunity of combining bail with the preventive measure of prohibiting certain actions. A comprehensive research of bail in Russian and foreign law allowed the authors to formulate recommendations on possible improvements in the mechanism of legal regulation of bail in modern criminal court procedure. It is suggested that a number of gaps in legislation should be bridged, specifically, the list of goals of bail included in the law should be changed and the existing goal of preventing new crimes should be supplemented by the following phrase: «Preventing the accused (the suspect) from continuing the crime that began earlier or committing a new crime». It is also suggested that Part 2.1 should be introduced in Art. 106 of the Criminal Procedure Code of the Russian Federation, which will make it possible to use bail to compensate for the material damage inflicted by the crime in case of a guilty verdict. The authors believe that it is necessary to improve the effectiveness of such a preventive measure as bail in the Russian Federation, thus reducing the number of cases when incarceration was chosen as a restriction measure for crimes of small and medium gravity.