A citizen who has committed a crime must be punished. However, in order to impose appropriate sanctions on him, he must first be detained. Authorized employees shall be detained in accordance with Art. 91 Code of Criminal Procedure . Let us further consider the features of the norm.
The grounds for restricting freedom in accordance with Art. 91 Code of Criminal Procedure
An investigator / interrogator may detain a citizen suspected of an unlawful act for which imprisonment is provided when:
- This subject is caught in the immediate commission of an action or immediately after it.
- Eyewitnesses / victims will indicate this citizen as involved in the act.
- Traces were found on his face, clothes, with him, in his home, clearly indicating that this person had committed an assault.
One of the indicated circumstances is sufficient for detention.
Additionally
The second part of article 91 provides that, if there is information that gives reason to assume a citizen’s involvement in a crime, he may be detained if:
- tried to hide;
- he does not have a permanent place of residence;
- his identity has not been established;
- a request for detention has been sent against him.
Art. 91 Code of Criminal Procedure with comments
Restriction of freedom of a citizen suspected of involvement in the assault is one of the procedural measures of coercion. It is referred to in article 5 of the code. According to paragraph 11 of this norm, the detention period under Art. 91 of the Code of Criminal Procedure of the Russian Federation - not more than 48 hours. The course of the specified period begins from the moment of the actual forced restriction of the freedom of the subject.
It should be noted that the possibility of limiting the rights to personal inviolability and freedom is provided for by the Constitution. As established in Part 2 of Article 22 of the Basic Law, detention and detention are permitted only by a court order. Prior to its adoption, the freedom of the person may be restricted in the application of Art. 91 Code of Criminal Procedure for a period of not more than 2 days.
The Constitution, providing for the possibility of applying a preventive measure to the subject, linking it with the need to protect the constitutional order, the state, the population, the health of other citizens, their interests and rights, does not fix the specific grounds, procedure and conditions under which detention is allowed, relating this issue to competence federal legislator.
Nuances
The norms of the CPC establishing the rules of detention do not introduce any restrictions that go beyond the scope of the Constitution. On the contrary, according to experts, the articles of the code significantly narrow the possibility of their application.
The moment of actual compulsory restriction of freedom of a subject is considered to be the moment of deprivation of his ability to move freely. The detention may be accompanied by the use of special means and a personal announcement to the person about the implementation of the preventive measure.
Suspect
They are the subject:
- In respect of which criminal proceedings have been initiated according to the rules and grounds enshrined in Chapter 20 of the Code.
- Detained in accordance with Art. 91, 92 Code of Criminal Procedure .
- In respect of which a procedural measure of restraint was applied before official presentation in accordance with Article 100 of the Code.
- Notified of suspected involvement in the act.
This list is contained in the 46th norm of the code and is considered exhaustive.
Features of detention and detention
Applying the provisions of Art. 91 of the Code of Criminal Procedure of the Russian Federation , authorized employees must comply with the deadlines set by the code for restricting the freedom of the subject. They should immediately release any citizen who was illegally detained, placed in a stationary medical facility, including a psychiatric dispensary, as well as unreasonably detained beyond the time limit established by law.
According to the requirements of part 1.1 of article 108 of the code, an entity accused / suspected of acts under art. 165, 160, 159-159.6 of the Criminal Code, if they were committed in the field of entrepreneurship. A similar rule applies to persons suspected of involvement in acts under Articles 190-199.2, 185-185.4, 180-183, 176-178, 171-174.1 of the Criminal Code. Accordingly, the detention of these persons under Art. 91 of the Code of Criminal Procedure of the Russian Federation is unacceptable if there are no circumstances enshrined in paragraphs 1-4 1 of part 108 of the article of the Code of Criminal Procedure.
Special cases
Special rules are provided for persons with parliamentary immunity. They are referred to in article 449 of the code. These include:
- Members of the Federation Council.
- State Duma Deputies.
- Judges of the federal, world court.
- The prosecutor.
- Chairman, his deputy, auditors of the Accounts Chamber.
- Former President of the Russian Federation.
- Commissioner for Human Rights.
In case of their detention on the basis of the provisions of Art. 91 of the Code of Criminal Procedure , they must be immediately released after identification.
If a preventive measure has been applied to an assistant member of the Federation Council or a State Duma deputy, the relevant parliamentarian is informed immediately. The corresponding requirement is contained in article 37 of the Federal Law No. 3.
Purpose of the measure
Detention under articles 91 and 92 of the Code is allowed exclusively in open criminal proceedings. It is aimed at clarifying the involvement of the subject in the act, solving the issue of placing him in custody.
The legislation prohibits the use of the provisions of Art. 91 of the Code of Criminal Procedure of the Russian Federation for obtaining a criminal confession on behalf of a person. No one is obliged to confirm their non-involvement in the assault. The burden of proof, as well as the refutation of the arguments presented in defense of the person, rests with the prosecution.
Limits of Application
Taking into account the presumption of innocence, the detention of the subject according to the rules of Art. 91 of the Code of Criminal Procedure of the Russian Federation, his further detention should be an extreme measure, to act not as a rule, but rather as an exception to it. Moreover, deprivation of liberty should be considered as a sanction to be imputed last. Such a punishment is permissible if another measure, in accordance with the nature and gravity of the act, is clearly insufficient.
The restrictions placed on citizens detained on suspicion of involvement in crimes should be consistent with the purpose for which they were applied and be minimally necessary.
Delivery to law enforcement
A person is detained and brought to an investigator / interrogator prior to the opening of criminal proceedings. At the same time, if a citizen reasonably suspected of an act has been delivered to the law enforcement body, the issue of the procedural detention of this person is decided simultaneously with the preparation of a decision to initiate proceedings.
Crime report
It should be borne in mind that the primary source of information about the act communicated by the citizen who committed it is a statement written by him personally or recorded in the protocol of confession. In legal proceedings, this document is recognized as independent evidence.
Within the meaning of the legislation, as well as the explanations of the Plenum of the Armed Forces, enshrined in Decree No. 2 of 2007, a person’s report of an encroachment made by him after his detention does not exclude the recognition of this statement in the future as a mitigating circumstance.
Important point
If law enforcement authorities had information about the crime (procedural documents, reports of victims, witnesses, etc.), and the detained subject, in turn, was aware of this, confirmation of their involvement in the act could not be regarded as confession. It is recognized as another extenuating circumstance.
Conclusion
Article 91 clearly defines the grounds under which detention of the subject is allowed. If they are absent, including if there is only the intention of the investigator to send a petition for the detention of the suspect to the court, the detention of the citizen is unacceptable. Any actions aimed at this are considered to violate the law.
The grounds of 91 articles are directly related to the moment of receiving information about the citizen's involvement in the assault. They cannot remain sufficient after a long period of time.