Art. 46 of the Code of Criminal Procedure of the Russian Federation (in the new edition) significantly expanded the grounds on which the subject can be recognized as a suspect. The norm also defines the duties of law enforcement officers (investigator / interrogator) and the rights of the detainee. Consider Art. 46 Code of Criminal Procedure in more detail.
Suspect
Part 1, Art. 46 of the Code of Criminal Procedure of the Russian Federation as a citizen recognizes:
- In respect of which criminal proceedings have been initiated in the manner provided for in Article 20 of the Code.
- Which is detained, according to the provisions of norms 91, 92.
- To which one of the preventive measures has been applied until the time of indictment under the provisions of Article 100.
- Who is notified that he is a suspect in a crime, in the manner specified in Art. 223.1.
Important points
The subject to which the measure established by Art. 91, must be interrogated no later than 24 hours after his arrest. In this case, the suspect is given the opportunity to make 1 phone call in Russian to notify relatives or relatives of his whereabouts. The conversation is carried out in the presence of the investigator / interrogator, who, in turn, must fulfill the obligation of notification, according to the provisions of Art. 96.
Suspect's rights
They are established by part 4 of Art. 46 Code of Criminal Procedure . The suspect is granted the right to:
- Know what exactly he is suspected of, and get a copy of the decision to institute criminal proceedings against him, a copy of the protocol of detention or the application of a preventive measure.
- Give testimonies and explanations or refuse them. If the suspect agrees, they warn that all his words can be used as evidence. This rule also applies in the event of a person’s subsequent refusal of the information provided earlier. The exception is the case provided for in paragraph 1, paragraph 2 75 of the Code.
- Use the assistance of a lawyer from the moment specified in clauses 2-3.1, part 3 of article 49, to have a meeting with him confidentially and in private before the first interrogation.
- Provide evidence.
- To submit challenges and petitions.
- Give explanations or testimonies in the native or well-known language.
- Take advantage of the help of a translator for free.
- To get acquainted with the protocols of investigative measures carried out with his participation.
- Participate in actions carried out at his request or at the request of a representative / defender. For this, it is necessary to obtain the consent of the inquiry officer / investigator.
- Send complaints about inaction / action, decision of employees, including the prosecutor, and the court.
- Carry out protection in other ways and means not prohibited by law.
Comments on Art. 46 Code of Criminal Procedure
It should be taken into account that the concept of a suspect in the considered norm is given in the formal legal narrow sense. As the Constitutional Court pointed out, the fact of the prosecution and, accordingly, the indictment directed against a particular citizen are confirmed not only directly by the act on the start of proceedings, but also by the implementation of a number of investigative measures. In particular, we are talking about a search, interrogation, identification, etc. In addition, this fact is confirmed by other measures that are being taken to expose the subject or indicate the presence of suspicion against him. For example, this may be an explanation to the citizen of the right not to testify against himself (51 article of the Constitution). The subject in relation to which these actions are carried out must be recognized as a suspect in the broad sense. A broad interpretation of the concept allows him to immediately take advantage of the assistance of a lawyer, without waiting for the issuing of the relevant act by the authorized bodies.
Employee Responsibilities
In the second part of Art. 46 of the Code of Criminal Procedure , it was established that the interrogation of the subject should be carried out no later than 24 hours after his actual detention. It is necessary to take into account that the holding of this event in the specified period acts not only as an employee's duty, but also constitutes an important right of a citizen. This is due to the fact that at the time of detention the provisions of Part 4 of Art. 46 Code of Criminal Procedure . In particular, the subject can find out what exactly he is suspected of. In addition, within 24 hours, a citizen can use the opportunity to meet with a lawyer.
Nuances
Suspected as a participant in the production, there is a fairly limited time. If a citizen was detained and subsequently taken into custody, then this period, according to general rules, cannot exceed 10 days. - from the moment of detention until he is charged. If within 48 hours a preventive measure has not been selected, the subject must be released. After that, he cannot formally be considered a suspect. An exception is cases when information on this citizen is reasonably indicated in the act on initiation of proceedings. In the process of inquiry, a citizen may be a suspect before completing the indictment.
Indications
They are specific factual evidence about the circumstances of the case. In accordance with Part 4 of Art. 46 of the Code of Criminal Procedure, the subject is entitled to testify or refuse to provide any information. If agreed, the citizen is warned of the consequences. In particular, all of his testimonies can later be used as evidence, including if he subsequently refuses them. The exception is the case when the information was provided in the framework of pre-trial proceedings in the absence of a defense counsel and is not confirmed by the subject in court.
Explanations
As a rule, they are received as part of a pre-investigation check. The explanations are the arguments that the citizen puts forward in his defense. They appear as versions and assumptions, which contain an interpretation of any facts. For example, this may be information explaining the fact of a person being caught red-handed during the theft, indicating the discovery of an item lost by someone. A citizen may also make assumptions about the reason why the victim or witness gives false evidence against him. The procedural significance of such information lies in the fact that it acts as a means of protecting a person against charges. At the same time, the explanations impose on the police officer an obligation to verify, confirm or refute them. It must be said that giving explanations and testimony, according to Art. 46 Code of Criminal Procedure , is the right of the suspect. This means that he can, but should not provide this or that information.
A date with the defender
The right to it is provided for in paragraph 3 of part 4 of the commented norm. A meeting with a lawyer is provided until the first interrogation. In this case, the conversation with the defender is confidential. However, according to Art. 18 (part 2), meetings with a lawyer can be carried out under conditions in which an employee of the place of detention of a citizen can see them, but not hear them. It seems that this provision, by analogy, applies to investigators / interrogators. The length of time a lawyer visits a suspect is limited by the Internal Rules of Detention Places.
Getting copies of documents
According to paragraph 1 of paragraph 4 of the article under review, the suspect may receive a copy of the decision to commence proceedings against him or to apply to him one of the preventive measures or the protocol of detention. In addition, in accordance with paragraph eight of the norm, a person has the right to familiarize himself with the documents drawn up during the investigation, if they were carried out with his participation. As the Constitutional Court pointed out, the procedural provisions should not limit the ability of the defense counsel or the suspect to study the protocols of all activities that were carried out with his involvement before the investigation is completed. This, in particular, is about investigative actions carried out before the moment the citizen was recognized as a suspect. In addition, the subject has the right to get acquainted with all the documents that are presented to him or must be presented.
Additionally
The norm does not directly provide for the right of the subject to make copies of documents included in the case file. This possibility has been agreed upon with the accused. However, the law does not prohibit the suspect from using it. In this case, clause 11 part 4 of the rule in force is applicable. In accordance with it, a citizen and his defense counsel can make copies of documents, including a protocol on detention, investigative actions taken at their request, a decision on the appointment of an expert review and the conclusion of a specialist.