Detention is one of the most common procedural coercive measures. It is used to ensure the appearance of a person suspected of a crime in the authorities conducting an investigation or trial. The order of detention is regulated by Chapter 12 of the Code of Criminal Procedure. Consider this measure in more detail.
General information
The essence of applying the measure in relation to the suspect is to ensure short-term detention of a citizen without obtaining permission from the court. The detention, in accordance with clause 11 clause 5 of the Code of Criminal Procedure, as a procedural measure of coercion is applied by an inquiry officer, inquiry body or investigator. The legislation clearly regulates the period during which the subject can be detained. In exceptional cases, the duration of detention may be extended.
Specificity
Detention is an urgent procedural action. On the one hand, it is not considered mandatory and is more optional. However, detention is a prerequisite for observing the rules of the preliminary investigation in emergency situations. They, in turn, should recognize circumstances that clearly indicate signs of a criminal act. For detention, law enforcement officers must have reason to believe that delay can lead to:
- Losing traces of crime.
- Loss of opportunity to repair damage.
- Concealment of persons involved in the act.
Difficulty applying standards
According to some lawyers, it is necessary to carry out detention after the initiation of proceedings. Experts note that the application of this measure begins with the execution of a special procedural document, on the basis of which a citizen is sent to a room for detainees. These actions are accompanied by a search and a protocol. According to the provisions of the CPC, the key condition for such detention is a criminal case opened against a specific person.
At the same time, the Armed Forces of the Russian Federation indicate the legality of applying the procedural measure even before the opening of production. The institution argues its opinion by the fact that the Code of Criminal Procedure does not make detention dependent on the availability of an initiated case. Such different approaches create many problems in practice. At the time of detention before the opening of the case, the protocol is not drawn up or drawn up, but the date on the decision to initiate proceedings is indicated arbitrarily.
If the authorized employee refuses to open the case, the protocols drawn up based on the results of already completed investigative measures are turned into materials for verifying the statement of a crime. For example, a document drawn up during an interrogation of a witness is transformed into an “interview” of an eyewitness. At the same time, the protocols of unlawful detentions are often simply destroyed.
It should also be noted that the decision to refuse to open proceedings deprives the detainee of a number of rights, including the ability to demand rehabilitation and compensation for damage.
General conditions for applying the measure
The basis of detention is the existence of a suspicion of an act for which a citizen may be charged with imprisonment.
In order for a coercive measure to be lawful, a procedural form must be respected. In particular, there must be a proper object of detention - this is a citizen suspected of assault. In addition, the goals and grounds for applying the measure should be clearly stated. The observance of the rules of detention is mandatory.
The subject applying the procedural measure must have the appropriate authority to take the case to production or execute the decision of another competent authority.
The detention of the accused
You can apply a procedural measure not only to the suspect. It is possible to detain both the accused and the already convicted, but taking refuge from serving the sentence. In the latter case, it is, in particular, about persons who are abroad but sentenced to imprisonment by Russian courts. The detention of such citizens is carried out in the framework of cooperation between domestic and foreign law enforcement agencies. As a rule, these entities are put on the international wanted list. After the capture, subject to international criminal law principles, such citizens are brought to a Russian court.
The detention of the accused is also considered an urgent procedural measure. Its essence lies in the short-term detention of the subject for immediate delivery to the court. The presence in the Code of Criminal Procedure of the rules governing the detention of the accused is due to the need to prevent a citizen from being detained in absentia.
Nuances
Criminal procedural detention must be distinguished from actual and administrative detention, as well as restrictions on the physical freedom of the convicted person for a period of up to 1 month, in connection with evasion of the execution of the punishment imputed to him.
In addition to the general rules, the legislation has established a special procedure for applying coercive measures to certain categories of officials with official immunity. So, a State Duma deputy, a magistrate / federal judge, a member of the Federation Council, a prosecutor and a number of other persons detained on suspicion of a crime are released immediately after identifying them. An exception is cases of the capture of these employees at the scene of the act.
Purpose of the measure
Detention by police or other law enforcement officials is carried out to determine:
- The subject's involvement in the act.
- The need to place a person in custody.
If these circumstances are clarified, the coercive measure in question does not apply. The means of detention must be legal. A physical restriction of the subject’s freedom to obtain confession from him is not allowed.
Grounds for applying the measure
They are given in article 91 of the CPC. According to the norm, an authorized employee can apply a procedural measure if:
- A citizen is caught directly at the crime scene. For example, it can be detention for a bribe, theft, murder, etc.
- The person is caught immediately after the commission of the act.
- Eyewitnesses or the victim referred to this citizen as being involved in the crime.
- Traces of the crime were found on this subject, his clothes, in his home. For example, it can be drops of blood, property stolen from the victim, etc.
At least one of the above conditions is sufficient to effect a detention.
If there is information indicating a possible involvement of the subject in the crime, he may be detained if:
- tried to hide;
- he does not have a permanent place of residence;
- his identity has not been established;
- the investigator (with the consent of the head of the investigative unit) or the interrogating officer (with the permission of the prosecutor) filed a petition for the detention of the person with the court.
The place of residence should be considered a residential building, apartment, office, specialized institution (hotel, shelter, etc.). or other premises in which the subject mainly or permanently lives as the owner, tenant, tenant or on other grounds fixed by federal law.
The identity of a citizen is recognized as unidentified if he does not have documents or there are erasures or traces of falsification in them.
The above list of grounds is considered exhaustive.
Stages of detention
Conventionally, the procedure is divided into several stages:
- The actual detention.
- Delivery to the department and drawing up the protocol.
- A date with a lawyer.
- Interrogation.
- Notification of the detention of the prosecutor and other persons.
- Release of a citizen or transfer to an authorized body to elect a preventive measure.
The law mentions 2 types of detention: procedural and actual. The latter is a seizure, the direct deprivation of the subject of physical freedom. Actual detention precedes the procedural one. Its purpose is to suppress the unlawful activity of a citizen or to find out his involvement in a crime.
Features of actual detention
As a rule, the physical deprivation of a person’s freedom of movement is carried out as part of administrative legal activities and operational-search measures by authorized employees. In other words, this procedure is carried out outside of criminal proceedings. However, despite this, the countdown of the 48-hour period of detention begins precisely from the moment of the actual capture of the person.
After the deprivation of freedom of movement, the citizen is forcibly taken to the investigator or to the inquiry body to draw up the protocol. It must be emphasized that the authority to carry out procedural detention is vested only in entities engaged in pre-trial proceedings. These include the body of inquiry, the interrogator and the investigator.
Personal search
Legislation allows for a personal inspection of a detained person. To carry out a search, there is no need to issue a decision and obtain a court decision.
However, an authorized employee is required to comply with the procedural rules for conducting a personal search. They are enshrined in Articles 182 and 184 of the Code of Criminal Procedure.
A personal search of a citizen is carried out by an employee of the same sex and in the presence of specialists and witnesses of the same sex (if they are involved in the production of this investigative measure). The course and results of the search are recorded in the minutes.
Procedural moments
After the citizen is delivered to the investigator or interrogating officer, a protocol must be drawn up within three hours. This document records the fact of detention. The protocol must contain a note that the person has been explained the rights enshrined in article 46 of the Code of Criminal Procedure. In addition, the time and date of preparation of the document, place, date, time, grounds, reasons for detention, the results of the search and other investigative actions are indicated.
The protocol is signed by the employee who composed it, as well as the detainee himself.
A date with the defender
At the request of the detainee, the first meeting with a lawyer is organized prior to the interrogation. The meeting should be held confidentially and in the absence of law enforcement officers.
If it is necessary to involve the detainee in the execution of procedural measures, the duration of the meeting over two hours may be limited by the inquiry officer / investigator. The suspect and his counsel must be notified in advance of the relevant decision. Moreover, in any case, the duration of the meeting cannot be less than two hours.
If it becomes necessary to conduct operational investigative measures, meetings of the interrogating officer with the suspect are permitted with the permission of the employee in whose proceedings the case is being processed.
The detainee must be questioned in accordance with the requirements of part 2 of article 46, as well as the provisions of Art. 189, 190 of the Code of Criminal Procedure.
Notifications
According to the requirements of Article 96 of the Code of Criminal Procedure, the detention of a person must be notified to the persons whose list is defined by law.
Within 12 hours, the investigator, the interrogating officer, the body of inquiry shall notify the prosecutor of the completed procedural action. The notice is sent in writing. In addition, also before the expiration of 12 hours from the moment of detention, the close relatives of the suspect are notified. The law allows the detainee to independently inform loved ones. The notice is drawn up in writing and is attached to the case file.
Important points
The legislation spells out special rules for the detention of police officers, members of the supervisory commission, and military personnel. The secretary of the Public Chamber and the supervisory commission, the head of the military unit in which the person is serving, or the head of the body in whose staff the detainee is kept should be notified of the fact of the actions taken.
If the subject is a citizen or a citizen of another country, no later than 12 hours notice of the enforcement of a coercive measure is sent to the consulate or embassy. Moreover, the law does not provide for the obligation of employees to notify relatives of the detention of such persons.
In practice, it may be necessary to keep confidential the fact of detention in the interests of the preliminary investigation. In such situations, notification by agreement with the prosecutor may not be possible. The exception is cases where the detainee is a minor. When applying a procedural measure to a person under the age of 18, the legal representatives of that person shall be immediately notified.
According to the provisions of part 7 of article 14 of the Federal Law No. 3, a person detained no later than three hours from the moment of his detention, unless otherwise specified in federal law, may make one telephone call to inform relatives of the fact of detention and his whereabouts. This notification at the request of a citizen can be made by a law enforcement officer.
The term of detention begins from the moment of actual deprivation of a citizen's freedom of movement. When capturing, its time is indicated in the protocol. In accordance with the provisions of Part 2 of Article 128 of the Code of Criminal Procedure, non-working hours do not interrupt the course of the period of criminal procedure detention.
Grounds for the release of a citizen
They are enshrined in article 94 of the Code of Criminal Procedure. According to the norm, the suspect must be released by order of the investigator or interrogating officer if:
- Suspicion of the person’s involvement in the crime was not confirmed. In such a situation, criminal prosecution ceases, and the person acquires the right to rehabilitation.
- The detention was carried out in violation of the provisions of Article 91 of the Code of Criminal Procedure. For example, the investigator artificially created conditions for depriving a citizen of freedom of movement by qualifying his actions “with a margin”, the severity of the infringement was overestimated to such an extent that it became possible to impose a person a prison sentence. This basis for release is considered a manifestation of the nullity of illegal decisions and acts. It entails their cancellation and legal invalidity of the results of unlawful procedural actions. A citizen released on this basis has the right to demand compensation for damage caused by unlawful detention. However, he remains a suspect until the end of the criminal prosecution.
It also happens that there are no grounds for imprisoning a subject. In this case, the suspicion is not removed from the citizen. As a rule, it transforms into a charge. Accordingly, a decision is made regarding a person to bring him to production in the status of the accused, as well as to select a different preventive measure (for example, taking a recognizance not to leave the place).
After two days from the date of actual detention, a person must be released if he was not detained or the court did not extend his detention in accordance with the rules enshrined in paragraph 3 of part 7 of article 108 of the CPC. The court may increase the duration of deprivation of the subject of freedom of movement up to three days to provide participants with additional evidence of unfounded or justified placement of a person in custody. The relevant decree must indicate the time and date until which the extension is carried out.
Additionally
If a court order to detain a suspect or increase the period of his detention is not received before two days have elapsed since the actual deprivation of freedom of movement, the citizen is subject to immediate release. The head of the institution in which the subject is kept informed of this by the investigator or inquiry body that opened the criminal proceedings, as well as the prosecutor.
If there is a judicial act refusing to satisfy the request of the investigator / interrogating officer for the detention of a person, then a copy of it shall be transferred to the suspect upon release.
A person released on any of the above grounds receives a certificate that reflects information on the date, time, place, grounds for detention, officer, time, date and grounds for release. A citizen also receives his belongings, documents and money.
If necessary, the administration of the institution in which the subject was located provides the released person with the opportunity to get to their place of residence free of charge (by water, road or rail), clothing in accordance with the season, cash and meals.
Conclusion
Detention is one of the most important procedural measures used in the framework of the preliminary investigation. It entails the actual deprivation of a person's freedom of movement for a specified period.
According to general rules, detention may be carried out after the initiation of criminal proceedings. However, in practice, there are frequent cases of physical seizure of citizens even before the opening of the case.
Detention is an urgent procedural measure. It allows you to quickly deliver the suspect to the agency conducting operational-search activities.