Investigative and other procedural actions, the production of which is not otherwise carried out on the basis of a court decision, or in exceptional cases, it is allowed to follow their legality by the court, are related to the restriction of the constitutional rights of citizens private property, inviolability of housing, private life, personal and family secrets, secret correspondence, telephone conversations, postal, telegraph and other messages (Articles 23, 25, 35, 36 of the Constitution Russian Federation), which obliges the courts when applying the procedure provided for in Article 165 of the Code of Criminal Procedure of the Russian Federation, strictly comply with the guarantees established with the rights of the rights to the Constitution of the Russian Federation and the Criminal Procedure Law.

In connection with issues arising from courts when considering the petitions of the preliminary investigation authorities related to the restriction of the constitutional rights of citizens, as well as to ensure uniform use by the courts of criminal procedure legislation Supreme Court Of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 No. 3-FKZ "On the Supreme Court of the Russian Federation", decides to give the following explanations:

1. To draw the attention of the courts to the fact that for each applicant application for the production of investigative or other procedural action (hereinafter - the investigative action), the judge should figure out whether the request complies with the requirements of parts 1 and 2 of Article 165 of the Code of Criminal Procedure: whether it is due to this court. Is the criminal case in the production of the investigator or the investigator who submitted a petition, whether the consent of the head of the investigative body or the prosecutor to carry out an investigative action, whether the application requires the necessary information (the name of the specific investigative action, the address of the inspection site or searches in the dwelling, etc.) , and whether the petition is applied to the petition required to consider (a copy of the decisions on the initiation of criminal proceedings and the adoption of criminal proceedings, on the extension of the prior investigation period, on the resumption of criminal proceedings, materials confirming the presence of grounds for the production of investigatively actions, etc.). In particular, in the petition for the implementation, the disposal or destruction of material evidence (part 3.1 of Article 165 of the Code of Criminal Procedure) should contain information on the owners or other legal owners of the subject recognized by the physical evidence necessary for notifying specified persons About the place, date and time of the court session (address of the place of residence, phone number, etc.).

2. Courts should be borne in mind that a petition for the production of investigative action in a criminal case, preliminary investigation or the inquiry on which is carried out by the investigative group or a group of the investigators, the head of such a group is authorized to initiate the court (paragraph 7 of Part 4 of Article 163, paragraph 8 of Part 4 of Article 223.2 of the Code of Criminal Procedure of the Russian Federation).

In cases where the application for the production of investigative action was initiated by the court directly by the head of the investigating body, who adopted a criminal case for its production, the consent of the superior head of the investigative body to the direction of petition to court is not required.

In relation to the persons listed in paragraph 1 of Article 447 of the Code of Criminal Code of Criminal Procedure, a special procedure for the criminal proceedings are applied (Chapter 52 of the Code of Criminal Procedure), and permission to produce investigative actions carried out otherwise as on the basis of a court decision may be given taking into account the provisions of the part 5 of Article 450, Articles 450.1 of the Code of Criminal Procedure of the Russian Federation.

3. If the received petition does not comply with the requirements of the criminal procedural lawWhat impede his consideration, then the judge returns the petition to the person who sent it, indicating the motives of the decision taken. In such cases, the period established by parts 2 or 3.1 of Article 165 of the Code of Criminal Procedure of the Russian Federation is calculated from the moment of repeated receipt of the application to the court.

4. According to part 2 of Article 165 of the Code of Criminal Procedure of the Russian Federation, the petition may be submitted either at the place of production of the prior investigation, determined in accordance with Article 152 of the Code of Criminal Procedure, or at the place of production of investigative action. If the petition is filed by the investigator or the investigator with a violation of the rules of jurisdiction, the judge makes a decision to refuse to make such a petition for consideration with reference to this basis.

5. Based on the provisions of part 3 of Article 165 of the Code of Criminal Procedure of the Criminal Procedures, the judge of the investigative action adopts the necessary measures aimed at the timely notice of the investigator or the investigator and the prosecutor, and in the cases indicated in Part 3.1 of the named Articles - and other persons About the upcoming court session.

Taking into account the abbreviated period during which the petition is subject to consideration, it is recommended to use a telephone message, an SMS message, facsimile communication and other means of communication for notifications, providing the timeliness of such notification.

If a request for the production of investigative action relating to the implementation, disposal or destruction of material evidence is subject to consideration, then the place, date and time of the court session, along with the investigator or the investigator, submitted by the petition, and the prosecutor is also notified by a suspect, accused, their defenders and (or) Legal representatives, owner or other legal owner The subject recognized by physical proof of the criminal case, which is entitled to participate in the court session.

6. Courts should be borne in mind that according to the general rule of petition for the production of investigative actions is considered in open court. In cases indicated in Part 2 of Article 241 of the Code of Criminal Procedure, the Code of Criminal Procedure is allowed, a closed court session is allowed, which the judge takes a motivated decision.

7. In the sense of the provisions of Article 165 of the Code of Criminal Procedure of the Russian Federation, at the beginning of the meeting, the judge announces what a petition is subject to consideration, explains to those who came to the persons to their right and obligations, including the right to statement of taps and petitions, submission to the subject matter under consideration, participation in their study . Then the person who aroused the petition, if it participates at the court session, justifies the petition, the court examines the submitted materials, hears the performances of the persons who were the opinion of the prosecutor participating at the court hearing, after which it is removed in the advisory room to make a resolution.

The failure to appear in a timely notified of the place, the date and time of the court session, does not interfere with its holding.

8. When resolving petitions for the production of inspection in the dwelling, in the absence of the consent of those living in it, search and (or) recesses in the dwelling (clauses 4 and 5 of part 2 of Article 29 of the Code of Criminal Procedure) should be proceeding from the concept of the home contained in paragraph 10 of the article 5 Code of Criminal Procedure.

Taking into account the provisions of part 5 of Article 177 of the Code of Criminal Procedure, the court's permission is required to produce a court, if at least one of the persons living in it objects to inspection.

9. According to the provisions of paragraph 7 of part 2 of Article 29 of the Code of Criminal Procedure, part 3 of Article 183 of the Code of Criminal Procedure, Article 13 of the Federal Law of November 21, 2011 No. 323-FZ "On the basis of the health of citizens' health in the Russian Federation" (hereinafter - the federal law № 323-ФЗ) and Article 9 of the Law of the Russian Federation of July 2, 1992 No. 3185-I "On psychiatric assistance and guarantees of citizens' rights, with its provision", a court decision is required to receive medical documents containing information that are protected by the law of a medical secret.

However, the courts need to be borne in mind that in accordance with paragraph 3 of Part 4 of Article 13 of the Federal Law No. 323-ФЗ in the absence of the consent of a citizen or its legal Representative Separate information that make up a medical secret (for example, the fact of the appeal of a citizen for medical, including psychiatric, help, finding medical records), may be presented medical organization Without a court decision, at the request of the investigator or the investigator in connection with the inspection of the crime report in the manner established by Article 144 of the Code of Criminal Procedure, or the investigation of the criminal case.

10. To draw the attention of the courts to the fact that the excavation of items and documents containing information on deposits and accounts in banks and other credit institutions is made on the basis of a court decision. In accordance with Part 4 of Article 26 of the Federal Law of December 2, 1990 No. 395-I "On Banks and Banking Activities", certificates on accounts and contributions of individuals may be issued by a credit institution without a court decision on agreed with the head of the investigative investigator in criminal investigator Affairs in its production.

11. Based on the provisions of paragraph 24.1 of Article 5 of the Code of Criminal Procedure of the Russian Federation at the request of information on compounds between subscribers and (or) subscriber devices in accordance with Article 186.1 of the Code of Criminal Procedure of the Russian Federation, the judge may be given permission to receive information about the date, time, the duration of the connections between subscribers and (or) subscriber devices (user equipment), subscriber rooms, other data that can be identified by subscribers, as well as information about the rooms and location of transceiver base stations.

Other data to identify subscribers can relate, in particular, information about the IMEI-code of the subscriber device or the location of the telephone set relative to the base station.

12. Performing a petition for the production of investigative action, the judge is obliged in each case, along with the verification of the compliance with the requirements of the criminal procedure law for the procedure for the initiation of the petition, check the availability of actual circumstances that serve as a basis for the production of the investigative action specified in the petition (for example, when considering a petition To make sure that there are sufficient data on the materials of the criminal case, it is sufficient to believe that instruments, equipment or other means of committing a crime, subjects, documents and values \u200b\u200bmay be in the specified housing, which may be important for a criminal case).

13. In the case of an application for the application of the arrest on property to ensure the execution of the sentence in terms of punishment in the form of a fine or to ensure civil law The courts should be borne in mind that the value of the property on which the arrest is imposed should not exceed the maximum amount of the fine, established by the sanction of the article with the special part of the Criminal Code of the Russian Federation, or should be proportioned to the damage caused by the crime. In this regard, the judge is entitled to decide on the satisfaction of the application for the imposition of arrest on the cost of the property.

Considering the application for the imposition of arrest on property to ensure the execution of the sentence in terms of the possible confiscation of property, the judge is obliged to check whether the crime is kept or accused of a person in the list, established part 1 of Article 104.1 of the Criminal Code of the Russian Federation, regulating the basis and conditions for the application of this criminal law. In addition, the judge must make sure that the property belonging to the suspect or the accused specified in the petition may be recovered by executive documents Taking into account the provisions of Article 446 of the Code of Civil Procedure of the Russian Federation.

14. When applying an arrest on property in other persons who are not suspected, accused or persons who carry material responsibility for their actions must be taken into account the requirements of Part 3 of Article 115 of the Code of Criminal Procedure, in accordance with which in the operative part of the decision on satisfaction The petition of the judge must establish restrictions related to ownership, use, ordered by the arrested property. Such restrictions may be expressed, for example, in the prohibition to dispose of this property by concluding contracts for sale, lease, donation, pledge and other transactions, the consequence of which is alienation or encumbrance of this property.

Also in the operative part of the decision indicates the validity of the arrest of the property, which is determined by the judge, taking into account the deadline for the prior investigation and the time required for the transfer of a criminal case to court, and subsequently can be extended in the manner prescribed by Article 115.1 of the Code of Criminal Procedure.

15. Allowing the issue of the possibility of the production of investigative action concerning the implementation, disposal or destruction of material evidence, the judge must make sure that the objects mentioned in the petition were withdrawn and recognized as real evidence in the manner prescribed by law, and that there are circumstances that prevent (with By consideration of the requirements of Part 2 of Article 82 of the Code of Criminal Procedure) Storage of material evidence in a criminal case or their return to the owner.

16. Based on the provisions of part 5 of article 165 of the Code of Criminal Procedure of the Russian Federation, judicial audit is subject to both the legality of the decision of the investigator, the investigator on the production of investigative action and the observance of the norms of the criminal procedure law during its production. In particular, the judge should be convinced that the investigative effect on Article 165 of the Code of Criminal Procedure listed in Part 5 of Article 165, there were circumstances indicating the need for an urgent production, the investigator, the investigator followed by the procedure for making such a decision, as well as during the investigative action The requirements of the Criminal Procedure Law are not violated.

To exceptional cases in which the production of investigative action could not be postponed, belong, for example, situations when it is necessary to implement measures to prevent or suppress the crime; Delegation with the production of investigative action will allow the suspect to hide; There was a real threat to the destruction or concealment of objects or instruments of the crime; There are sufficient grounds to believe that the person located in a room or other place in which any investigative action is carried out, hides with himself objects or documents that may be important for a criminal case.

17. The courts should be borne in mind that in the presence of a petition of a person, the constitutional right of which was limited to the investigative action, produced in the case of not a tolerance, his defender, representative and legal representative, as well as other interested persons, should be ensured by the possibility of participation in verification by the court of legality of such an investigative action according to the rules of part 5 of article 165 of the Code of Criminal Procedure of the Russian Federation, as well as the possibility of appealing adopted according to the results of the verification of the court decision. For these purposes, they are notified of the place, date and time of the court session, they are sent a copy of the court decision.

18. Taking into account the provisions of paragraph 53.3 of Article 5 and part 1 of Article 127 of the Code of Criminal Procedure of the Russian Federation, the decision of the judge, made in the manner established by Article 165 of the Code of Criminal Procedure, is an intermediate judicial decision that can be independently appealed to appeal. In the meaning of the law, the appeal appeal against the decree on the production of investigative action does not suspend the execution of such a decision.

Since the satisfaction of the petition for the implementation, the disposal or destroying of property recognized by material evidence is associated with the forced termination of the right of ownership of this property, the judge's decision is to be executed only after its entry into force.

Ships should be borne in mind that the criminal procedural law does not give officials Inquiry and preliminary investigation of the right to appeal the decision of the judge made in the manner provided for in Article 165 of the Code of Criminal Procedure of the Russian Federation. The legality and validity of the decision of the judge may be tested by the court of higher instance on the representation of the prosecutor and complaints of persons, right and legal interests which are affected by the court decision.

19. If the prior investigation in the criminal case is completed and the criminal case, according to which the appellate or cassation appealThe performance of the judge, adopted in accordance with Article 165 of the Code of Criminal Procedure, was sent to the court to consider it essentially, the court of appeal or cassation refuses to accept the complaint, submission to consideration or terminates production on them, as reported by the applicant.

At the same time, the applicant explains that its arguments about violating the requirements of the law in the production of investigative action and the inadmissibility of the evidence obtained according to the results may be tested during the trial in a criminal case, as well as when considering the case of an appellate or cassation court.

20. In connection with the adoption of this decision to exclude clause 12.1 from the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. 1 "On the applications by the courts of the Norms of the Criminal Procedure Code of the Russian Federation".

Overview of the document

The Plenum of the Supreme Court of the Russian Federation has explained to consideration by the courts of applications for the production of investigative actions related to the restriction of the constitutional rights of citizens.

In particular, this is an inspection of the dwelling, search and (or) exhaust in it; Recessing documents containing secrecy protected by law; obtaining information about connections between subscribers and (or) subscriber devices; property arrest; Implementation, disposal or destruction of material evidence.

It is emphasized that the value of the property to which the arrest is imposed should not exceed the maximum amount of the fine, established by the Criminal Code, or should be proportioned to the damage caused by the crime. Therefore, the judge is entitled to arrest the appropriate part of the property.

In exceptional cases, not tolerance, individual investigative actions Can be conducted without obtaining a court decision. In such situations, in the presence of a petition of interested persons, they should be given the opportunity to participate in the court's verification of the legality of this investigative action, as well as to appeal the decision taken by its results.

One of the most unpleasant situations that may arise in life is a search, and it is better to be prepared for this. In this regard, below shows some tips.

Search - an investigative action, consisting of finding and withdrawal in any place or in any face of subjects and documents that may be important for business. Search can be made in order to detect wanted individuals and corpses.

Main tactical reception Searner is his suddenness, so you will take off the habit of opening the castle, without looking and not asking. First look at the eyes and ask who came. As a rule, during the search, investigators do not play operational games and honestly will say that they have a search for a search and will require the open door, in accordance with the court decision.

This means that you have about twenty-thirty minutes. After half an hour, if you do not open, the door can begin to break. Tell the investigators through the door that you need to dress and call a lawyer. Collect the will in the fist, do not be nervous and run fast preparations for the search.

Make two phone calls that will provide you with legal and informational support. The first call is a lawyer. If you are in the risk group, it is better to take care of a lawyer in advance. The second call is to the media, which illuminate the persecution of oppositionists in detail. Even a short mention on the air from the start, will make you more protected: the frank arbitrariness investigators are usually revealed only with the complete absence of information lighting.

So, search. First of all, you should carefully check the powers of those who came. Create presentation of identity cards and write all their data (name, position, certificate number, etc.). Ask you to imagine the witnesses and show their passports. Tell me that you need not start searching until the lawyer arrives. Anyway will begin, but it is important to fix this requirement to make a complaint about the action of law enforcement officers. Create a decision on search. Because the investigators are not required to hand out the documents, it can be rewritten for reliability, copy or even take a picture, at least on the mobile phone chamber.

A search can only be made after the initiation of a criminal case at any time of the investigation. If the search and seizure were carried out before the initiation of a criminal case - it could be issued as an inspection of the scene, which the requirements of Art. 12 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure). Often the search for a search as a survey of the premises under the federal law "On operational-investigative activities". In this case, a court decision is also required, since in accordance with Part 2 of Article 8, the conduct of operational-search activities that limit the right to the inviolability of housing is allowed on the basis of a court decision and in the presence of certain information. In addition, the inspection of the premises in order to withdraw evidence in a criminal case (narcotic drugs) is illegal, since it does not meet the tasks of operational investigative activities.

It is forbidden to damage the property without necessity and prohibited to disclose the circumstances of your privacy

About application technical means The participants in the investigative action, information about this and technical means, about the facilities and the results of the application are entered into the Protocol (part 5 of Article 166 of Code). The results of the use of technical means may be of legal importance: a) material evidence (Art. 81 of the Code of Criminal Procedure), when they are detected or seized using technical tools, for example, found in ultraviolet light biological fluid; b) applications to the investigative protocol (Art. 83, Article 166 of the Code of Criminal Procedure) when technical means are used as additional way fixing the stroke and the results of the investigative action, such as video.

It is forbidden to damage the property without necessity and prohibited to disclose the circumstances of your private life. The damage not caused by the need caused by the disciplinary, civil-law, but in some cases criminal liability.

If the damage to the property has generated doubts about the reliability of the evidence received or was the means of illegal impact on you (coherent to the giving testimony under threat of damage to property), then it entails the inadmissibility of the evidence received.

The production of search at night is not allowed, except in cases that do not endile. The night is considered time from 22 to 6 hours local time (paragraph 2 of Article 5 of the Code of Criminal Procedure).

Procedural search for search: a) Search anywhere, except for the dwelling (as a general rule), is made on the basis of the investigator decree. Authorization of this resolution is not provided; b) a search in the dwelling assumes the investigator by the investigator on initiation to the court of a petition for the search for a search in the dwelling, as well as in the presence of grounds - the judge's decision to resolve the preparation of the search in the dwelling; c) Search in exceptional cases when the search for a search in the dwelling does not tolerate delay, the investigator produces an investigative effect on the basis of its resolution (Ch. 5 of Article 165 of the Code of Criminal Procedure).

In the manufacture of a search in a room occupying two or more families, the investigator (inquiry) is entitled to expose not only a premises occupied by a citizen in respect of which a decision on the production of search, but also a common place to deprive citizens living in other rooms, The ability to assist the search in the hiding objects of interest to the consequence.

Searches in exceptional cases

The search is legitimate on the basis of Part 5 of Article 165 of the Code of Criminal Procedure, which says that in cases that do not endure declaration, the investigator has the right to be searched and without the sanction of the prosecutor, but with the obligatory notification of the corresponding prosecutor during the day. In this case, it is necessary to check the availability of urgency in the ruling. The law does not contain the requirements for transferring subjects and documents to be withdrawn.

The circumstances that do not fulfill the depreciation of the search production include cases when: the actual foundation for the production of search has arisen suddenly in the production of other investigative actions (for example, inspection, recess); Emergency search is dictated by the situation just perfect crime; Urgent search preparation is necessary to curb further criminal activities; They received information that the person at the disposal of which the facilities are essential for criminal proceedings takes measures to destroy them; The slightest selection with the search can entail the destruction or concealment of the desired objects or for other reasons will make them inaccessible for the investigator; If the investigator is at a considerable distance from the prosecutor's office and the court that the timely receipt of the sanction is excluded.

If there is nothing like that in the ordination for a search, then his legality is doubtful. Require your doubt about the search protocol.

Make sure that the start and end of the search is recorded in the protocol

On the fact of such an emergency search of the investigator within 24 hours from the beginning of its production (make sure that the start and ending time of the search is recorded in the protocol) notify the judge and the prosecutor to implement the investigative action. Copies of the decision on the production of investigative action and its protocol are attached to the notification to verify the legality of the decision on its production. In turn, the judge, having received the specified notice, checks the legitimacy of the searched and makes the appropriate decision in the daily term. If the judge's investigative effect deemed illegal, all the evidence obtained during the search is recognized unacceptable, that is, they cannot be used to initiate the accused. The decision to resolve the preparation of the search (excavation) in the dwelling as well as the decision to verify the legality of the search for the search (excavation) in the dwelling can be appealeding to a higher court within 10 days from the date of his submission.

Persons participating in the search

Mandatory search participants: investigator or person who produces inquiry; understood; Seven or adult members of his family, and in their absence - a representative of the local administration; The representative of the organization (state, private), in the premises of which is searched.

Optional search participants: Technical staff, specialists, witness, victim, suspected, accused. The investigator is an official authorized within the competence provided for by the Code of Criminal Procedure, a preliminary investigation in a criminal case. Operational workers without a investigator do not have the right. An exception to this rule can only be a search for a written order of the investigator in another city or district. Within the features of the city, the investigator must conduct investigative actions personally. Check - in the ID should indicate the position of the investigator.

When conducting a search, there should be understood - at least two people.

The search is made by the investigator under the general rules for carrying out investigative actions, but its procedure also has a number of features: 1) before the usage investigator places the decision, the court decision on the ruling; 2) before the search start, the investigator suggests voluntarily to issue the desired objects and objects seized from turnover; 3) During the search, additional restrictions may be assigned to those present: the ban leave the place of search, communicate with each other or other persons; 4) During the search, the seizure of objects relating to the case; 5) The investigator is not entitled to refuse in the presence of a defender (paragraph 5 of paragraph 1 of Article.53 of the Code of Criminal Procedure), or a lawyer of the Oblast Obligator (CP.182 of the Code of Criminal Procedure). A person in respect of whom a search is carried out in order to move it to a crime, has the right to defense, since it is in the position of the spent in the constitutional sense of the word (decree Constitutional Court RF of 27.06.2000 No. 11-P "On the case on the verification of the constitutionality of the provisions of Part 1 of Article 47 and Part 2 of Art. 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of the citizen V. I. Maslov). Therefore, his lawyer must have the rights of the defender (part 2 of Article 53 of the Code of Criminal Procedure); 6) When searching adopts special measures to preserve the secrecy of the private life of the person who is being searched, his personal, family mystery, as well as the circumstances of the privacy of others: from those present, a subscription to the non-disclosure of the preliminary investigation data is taken (part 2 of Article 161 CPC); Removed outsiders (for example, journalists); procedural fixation must be subjected to only the circumstances relating to the case; 7) At the request of the investigator, it is necessary to open all the closed premises, safes, cabinets, etc., otherwise the investigator can do it or with the help of specialists (Ch. 6 Article 182 of the Code). It should not be allowed damage to property (constipation, doors, other subjects), which is not necessarily necessity; 8) The protocol is signed by the investigator and persons participating in the investigative action (Article 166, Article 167 of the Code of Criminal Procedure).

The person attracted by the investigator, the investigator for the fact of the production of investigative, as well as the content, stroke, and the results of the investigative action, is clearly understood in the outcome of the criminal case.

It can not be understood: 1) minors; 2) participants in criminal proceedings, their close relatives and relatives; 3) Employees of the executive authorities, endowed in accordance with the Federal Law with powers to implement operational investigative activities and (or) of the preliminary investigation.

Do not allow situations where the operational worker goes without understanding to another room

When conducting a search, there should be understood - at least two people. Their role is to certify the fact, content and results of the actions in which they were present. Understanding should not be attended, but constantly accompany the law enforcement officers from the moment of the penetration of searching to the room.

It is necessary to ensure that all individuals producing searches are in the same room. Do not allow situations where the operational worker goes without understanding to another room. It may happen that in a minute he will come out of her with the words "... And see what I found!" And it will keep a certain forbidden thing that you first see. In this case, you should not touch this thing, demand that your protest is entered into the protocol. Be sure to poison the attention of those who have understood that they have demonstrated the subject, the moment of the detection of which they have not seen. Require that the protocol indicates that this thing was found in the absence of witnesses.

The same applies to such moments as: the employee rose to the chair and began to smoke on Chiffiperier, the surface of which is hidden from your eyes and eyes withers, and there is an employee law enforcement It takes a bag with a suspicious powder from there or something like that.

To resolve the dispute, the court during the study in the court session of the search protocol may cause and interrogate understand as a witness. If at the court hearing it will be established that non-compliance with the requirements of the law to the selection of understandable or in the protocol, there are no signatures confirming the conduct of the relevant actions, as well as if clearly inform the court on the actions of the investigator or the investigator, which are not reflected in the protocol or are not reflected as not as He watched them, the court would actually be obliged to recognize the investigative effect illegal, and the protocol - invalid proof.

In the manufacture of the search, the defender is entitled to attend, as well as a lawyer of that person, in the premises of which is being searched

In the manufacture of search, a person is involved in the premises of which a search is made, or adult members of his family. The law does not regulate the situation when it is impossible to fulfill this condition. It seems that by a court decision, a specially stipulating this circumstance, a search can be carried out in the presence of other persons who assumed the obligations to preserve the dwellings and in it in it, incl. Defender (lawyer), representative of the housing and operational organization.

Search in the premises occupied by the Organization, is made in the presence of a representative of the administration.

According to Part 1 of article. This means when searching in a home person, in the premises of which is being searched, or adult members of his family may require the presence of a lawyer (not just a lawyer). In the premises of the legal entity, the representative of the company has the right to also object to the start of the search before the lawyer arrives.

The lawyer has the right to give his principal in the presence of a brief consultation in the presence of the investigator, to make written comments on the correctness and completeness of records in the protocol of this investigative action (part 2 of Article 53 of the Code of Criminal Procedure).

The law does not have a norm prohibiting the seashed person or adult family members, to conduct photo and video during the search

Practice shows that law enforcement officers often ignore the petition for the presence of a lawyer, motivating this by the fact that the text of the article states that the lawyer does not necessarily participate, and has the right to participate, it means that he should apply to this. In this case, you must write in a search protocol or any other document that you will be given to familiarize yourself that in the production of investigative action (searches) is violated your right to receive qualified legal aid. Subsequently, this will help to defend progressive rights.

In the course of the investigative action, you, like a seven person, have the right to make written marks and comments during the search, so as not to forget to put them in the protocol after its end.

The law does not have a norm prohibiting the searched person or adult family members, to spend a photo and video during the search. Tip: If possible, fix the actions of law enforcement officers at least on a mobile phone camera, tablet, etc.

Protocol

In the manufacture of the search, the protocol is drawn up. The protocol may be drawn up both during the search and after it.

The protocol must indicate: the place and date of production of investigative action; time of its start and end (with an accuracy of minutes); position, surname and initials of the person who has amounted to the protocol; Families, names and patronymic of all persons participating in the investigative action, and if necessary, their addresses and other identity data.

Seizure of items and documents may be appealed to court and prosecutor's office

In the protocol, it should be indicated, in which place and under what circumstances the items, documents or values \u200b\u200bwere discovered, they were issued voluntarily or seized forcibly. All seized objects, documents and values \u200b\u200bshould be listed with an accurate indication of their quantity, measures, weight, individual signs, and, if possible, cost. In addition, they should be relevant to business. The withdrawal of other items and documents may be appealed to the court and the prosecutor's office.

If complex equipment is withdrawn (for example, computer technology), as well as its individual devices and blocks, it is advisable to pay attention to the fact that the protocol is indicated by the factory or serial numbers of the interviewed objects, as well as other information necessary for their accurate identification.

Procedural actions should be described in a strict sequence - in the same manner, in which they were carried out in practice. In addition, all comments of the search participants are entered into the protocol.

The protocol also specifies the technical means used in the production of investigative action, the conditions and procedure for their use, objects to which these funds were applied and the results obtained. The protocol should not be noted that persons involved in the investigative action were pre-warned about the use of the investigative effects of technical means.

At the end of the search, you must provide a copy of the protocol and inventory of seizure

The protocol is drawn up in several copies. It should contain an indication of the explanation to persons who are being searched, as well as representatives of enterprises, institutions, organizations of their right to be present in all actions and to make a statement to be entered into the protocol on these actions.

At the end of the search, you must provide a copy of the protocol and the inventory of the seized property. If the search was made in the premises of the enterprise, institutions, organizations, a copy of the protocol is awarded to a receipt of the appropriate official.

Photographic negatives and snapshots, films, diapositive, phonograms, cassettes, media, media computer Information, drawings, plans, schemes, casts and trace prints, made in the production of investigative action - all this is attached to the first copy of the protocol that will be in a criminal case.

In no case cannot be signed blanks, affected protocol, etc., because there is no guarantee that you, therefore, do not sign a sentence. Be sure to demand a copy of the document.

If your legitimate requirements are ignored by police officers, indicate the illegality of actions or the violations allowed during the search can be the most independent.

In no case cannot sign unfilled blanks, affected protocol, etc.

Such a statement is written on a separate sheet of paper or (which is more reliable) in the protocol of the investigative action before its signature. In any case, the investigator is obliged to introduce a statement to a criminal case and regard it as a petition to eliminate violations of the law. It is obliged to either meet the applicant's claims, or to make a resolution on refusal to satisfy the petition, but in any case, notify it about the decision taken. If the legality of the decision of the investigator is questioned, it is possible to refer to its leadership, to the prosecutor or to court.

In the complaint, you can describe illegal actions not only by the investigator, but also other searches. The decision of the prosecutor can be appealed to the upstream prosecutor. In principle, the prosecutor itself is obliged to ensure immediate verification of the legality for each case of a search without its sanction, and in all the facts of illegal searches or illegal seizures of objects, obviously not related to the case, take prosecutor's response measures.

At the prosecutor, among other things, the obligation to attach the complaints and statements of the victims, civil plaintiffs, their representatives, suspects, accused, their defenders and representatives, as well as the responses of officials on the results of testing the applicants' arguments.

Voluntary issuance of desired objects

If in the manufacture of a search, which is carried out not in order to find narcotic drugs or weapons, a person on the proposal of the investigator issues these objects, then there is a voluntary surrender

A proposal for voluntary issues of items following the presented to those who became interested in the persons on the search is not only a criminal procedural, but also criminal law. In paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 27.05.1998 No. 9 "On judicial practice For cases of crimes related to narcotic drugs, psychotropic, potent and poisonous substances, it is said that the issuance of these funds or substances by the person on the proposal of the investigator before the start of production in the premises of the excavation or search should be considered a voluntary surrender as one of the conditions for the liberation of the face from criminal responsibility.

If, in the manufacture of a search, carried out not to find narcotic drugs or weapons, a person on the proposal of the investigator issues these objects, then there is a voluntary surrender.

In the same case, when in a criminal case there is information about finding weapons or drugs and a search was made to detect them and seizure, the issuance of objects, regulated by F.5 Article 182 of the Code, can not always be equated to voluntary surrender legal significance. According to the notes to Article 222 of the Criminal Code and Article 228 of the Criminal Code, the voluntary delivery of drugs or weapons during the preparation of the search and, therefore, does not exempt from criminal liability. However, it should be noted that voluntary surrender can begin earlier than the search and entail exemption from criminal liability, regardless of the method of actual withdrawal of weapons or drugs. For example, a citizen on the phone declares the police about his desire to voluntarily pass the weapon, which is then removed during the search. Judicial practice establishes the obligation of the investigative bodies to provide the opportunity to the accused (suspected) voluntarily to issue weapons or drugs so that it can take advantage of the provisions of the criminal law, according to which a person voluntarily issued by weapons is exempt from criminal liability.

Objects and documents seized from turnover

In the manufacture of search, items and documents seized from turnover (Ch.9 Article 182 of the Code of Criminal Procedure) are withdrawn.

At the same time, it should be noted that objects are necessarily drawn, completely prohibited to appeal (seized from turnover), part 2 of article 129 of the Civil Code. These include: pornographic publications, fake monetary signs, "Kustarno" made weapons, drugs, explosives and explosive devices.

When searching things can be withdrawn, the turnover is limited

When searching can be withdrawn and the turnover of which is limited (Part 2 of Article 129 of the Civil Code). These items are withdrawn in the absence of proper permission to own them: weapons; narcotic drugs, psychotropic substances, potent poisons; State awards.

According to the list of types of production and waste production, the free realization of which is prohibited (approved by the Decree of the President of the Russian Federation of 22.02.1992 No. 179), to the above list should add: strategic materials; Weapons, special equipment, military documentation; objects associated with military communication systems; Objects associated with combat poisoning substances; radioactive materials; Devices and equipment using radioactive substances and isotopes; encryption technique; ethanol; Waste radioactive materials; Waste explosives; Waste containing precious and rare earth metals and precious stones; medicinal products, with the exception of medicinal herbs; means for sustainable receipt information.

The state awards of the accused (if he is accused of such a crime, for which deprivation of awards may be subject to seizure.

Lenura Yangulawova, Crimean lawyer

Opinions expressed in the "Blogs" heading transmit the views of the authors themselves and do not necessarily reflect the position of the editorial board

The article on the basis of the constitutional principle of proportionality is justified by the inadmissibility of production to the initiation of a criminal case of recesses as investigative actions, recommendations are proposed to assess the admissibility of the evidence obtained in violation

Kalinovsky k.b. Recess to the initiation of a criminal case violates constitutional principle proportionality of limiting the rights of citizens // Criminal Procedure. 2016. number 3.

Kalinovsky Konstantin Borisovich, Head of the Department of Criminal Procedure Law of the North-West Branch of the Russian State University of Justice, Candidate legal Sciences, Associate Professor, Member of the Scientific Advisory Council at the Supreme Court of the Russian Federation

Despite the fact that the admissibility of the production of investigative actions before the initiation of a criminal case has long been the subject of acute scientific discussion, ambiguous legislative and law enforcement practice indicate the maintenance of the relevance of the development of theoretical recommendations for solving this problem.

Moreover, the most acute in law enforcement practice is the issue of production during the period of predominant searches and recesses. It was he who was first staged to the Constitutional Court of the Russian Federation in a complaint of citizen A., according to the definition of the Constitutional Court of the Russian Federation of December 22, 2015 No. 2885.

The applicant challenged the constitutionality of the situation of the first article 144 "Procedure for consideration of a crime report" of the Code of Criminal Procedure (as amended by the Federal Law of March 4, 2013 No. 23-FZ), according to which when verifying a crime report, the investigator, an inquiry authority, the investigator, the head of the investigative body, is entitled to refer to documents and objects, to withdraw them in the manner prescribed by this Code. This norm, as the applicant believed was unconstituted, since, due to its uncertainty, it was allowed to produce the recess of objects and documents in the order of articles 182 and 183 of the Code of Criminal Procedure before making a decision on the initiation of a criminal case and use objects and documents that obtained in such a way.

The sentence of the Maykop city court of the Republic of Adygea dated May 7, 2015, left unchanged by higher courts, including the Supreme Court of the Russian Federation, a citizen A. condemned for being, being a professional training leader educational institution initial vocational education, I made 15 crimes in the form of receiving a bribe for the illegal issuance by citizens of false testimonies on the level of qualification "Excavator driver", "Machinist of the Bulldozer", "Loader driver" bypassing the procedure for learning established by law.

During the preliminary verification of the crime of the Opera Compact Department for Economic Security and Countering Corruption of the Ministry of Internal Affairs in the Republic of Adygea, on the basis of the decisions made by them, documents (qualifications level certificates, individual cards, certificates, and temporary permits issued ), which were then examined, are attached to the case as material evidence, investigated by experts and used in justifying the indictment.

The court of first instance was rejected a petition to the state of protection about the recognition by invalid evidence of these protocols of the excretion, inspections, decisions on the recognition of real evidence and the conclusions of the wrong examinations, with which the higher courts agreed with. The position of the courts of general jurisdiction was founded on the literal interpretation of Part 2 of Art. 144 and art. 183 Code of Criminal Procedure.

We believe that the systematic interpretation of criminal procedural norms suggests the inadmissibility of the extraction of the excavation before the criminal case be initiated. Article 156 of the Code of Criminal Procedure directly indicates that the preliminary investigation begins from the moment of initiating a criminal case, and in the content of the preliminary investigation includes the production of investigative actions (Chapter 25 of the Code of Code, the regulatory searches and the recess is located in section VIII " Preliminary investigation»Code; His article 157 admits only after the initiation of the case, the implementation of even urgent investigative actions).

Accordingly, the law enshrines the general rule on the inadmissibility of investigative actions during the preliminary verification of communities. From this general rules The legislator provided five exceptions: the production of expertise (including the production of samples for a comparative study), inspection of the scene, inspection of items and documents, inspection of corpses, examination, during which subjects may be withdrawn and documents (part of the first article 144 and corresponding part of the second article 176, Part Four Article 178, Part One Article 179, Part Four Article 195, Part One 202). In addition, in the stage of initiation of the case, it is allowed to obtain objects and documents by meeting the appropriate motions, sending requests (part of the fourth article 21, part of the second and third Article 86, Articles 120-122 of the Code of Criminal Procedure. As you know, exceptions from the general rule as special prescriptions in relation to the overall norm cannot interpret expanding.

Under the conditions of unstable legislation and changing judicial practice, the requirements of the Constitution of the Russian Federation are fundamental to the correct understanding, the applications and improvement of the considered criminal procedure norms, and primarily enshrined in its article 55, part 3 requirement of proportionality Restrictions on the rights of citizens constitutionally enshrined goals and protected interests, as well as the nature of the perfect act.

Due to the fact that criminal proceedings acts as a way of applying criminal law establishing adequate severity of the committed crime of criminal responsibility measures, criminal procedural legislation provides for such restrictions on the rights of citizens who are absent in other types of legal proceedings. Such restrictions may occur in connection with the production of search and removal, conjugate with the forced seizure of property, penetration into the dwelling, opening the premises, storage facilities, to leave the venue of the data of the investigative actions, etc.

The proportionality of these restrictions is ensured, including the presence of sufficient data on the signs of crime, which are the basis for the decision to initiate a criminal case (part 2 of Article 140 of the Code of Criminal Code of the Russian Federation). Without sufficient data on the signs of a crime, i.e. At the stage of preliminary verification of the reporting reports, it is legally not yet concluded that it is supposed to be: civil-law, administrative or permanent criminal. Using administrative or civil Affairs Funds intended for the enforcement investigation of crimes leads to a clearly excessive restriction of citizens' rights and a violation of the separation of the types of legal proceedings provided for by part 2 of Article 118 of the Constitution of the Russian Federation. Moreover, checking reports about incidents often take a protracted nature and are completed by a decree on refusal to initiate a criminal case.

In other words, according to the current Russian criminal procedure legislation, the decision to initiate criminal proceedings remains thereby launching the mechanisms of criminal procedure and at the same time ensuring compliance with the constitutional and legal principle of proportionality of the use of this coercion.

Thus, both in the industry interpretation of the OPC standards, and from the point of view of constitutional and legal positions, the production of recess or any other investigative actions associated with the application of proceeding measures is not allowed in cases of absence of sufficient data on the signs of a crime, i.e. During the preliminary verification of community reports.

Doctrinal assessment of evidence

The constitutional and legal approach also allows you to offer permission and other related to the question under consideration, but no less important: how to legally evaluate the results of the recess conducted before the initiation of a criminal case, i.e. Should such recess protocols and material evidence obtained be recognized by invalid evidence, or maybe they can remain admissible?

It seems that the legal consequences of the recess at the stage of pre-investigation check (as well as the consequences of other violations of the law admitted to evidence) should also be among the essence of the violation. As sanctions, the legislation provides for sufficiently differentiated measures: the recognition of evidence by unacceptable (Article 75 of the Code of Criminal Procedure), the submission of a private decree (definition) of the court (part 4 of Art. 29 of the Code of Criminal Procedure), the removal of the investigator, investigator Violation of the laws of the law (paragraph 10 of Part 2 of Art. 37; paragraph 6 of Part 1 of Article 39 of the Code of Criminal Procedure), attracting a violator of the norms to disciplinary, civil and even criminal liability, etc. On the differentiated reaction of ships for each identified Violation or restriction of the rights of the accused of defense orienses the Plenum of the Supreme Court of the Russian Federation.

Accordingly, this, the exclusion of evidence from the permissible should be applied only to significant violations encouraging the constitutional rights of the parties to the proceedings, and above all, to the right to fair judicial protection by an independent court.

From these positions, you must first determine whether the committed violation of the law is questioned by the accuracy of the evidence of the evidence. Fatty doubts about the reliability of evidence - by virtue of the requirement of the principle of the presumption of innocence - should be interpreted in favor of the accused (consequently, dubious evidence of the charges, and even received with violation of the law are certainly excluded). Indeed, the right to fair judicial protection cannot be provided if the conviction will be based on unreliable evidence.

If the proof, although obtained with a violation of the law, is not a doubt about reliability, then whose interests should be assessed, whether such violations are violated, whether such violations are encouraged on fair legal proceedings or other rights whether the exclusion of evidence or protection will be facilitated Violated rights, or vice versa, may aggravate the consequences of the violation of the violation.

With this "logistical" approach, including along with an assessment of a formal violation of the procedural law, that damage, which was (could) be caused to a protected object - a fair procedure of legal proceedings and constitutional rights Personality, one can resolve the question of the admissibility of the notch protocol, carried out before the initiation of the case, i.e. With violation of the requirements of Article 144, 156 and 183 of the Code of Criminal Procedure of the Russian Federation.

If, for example, during the excavation, forced penetration into the housing of the suspected person was carried out and coercion was used (handcuffs, physical strength) to the very person who had a narcotic drugs, the protocol of such a notch should be recognized as invalid proof. The illegal application of one side of the future judicial dispute to the other side of coercion to obtain evidence intended to resolve this dispute always violates the principle of equality of the parties, which means damage to the equitable proceeding of the case.

In other cases, it would be apparent to the unfair elimination of the same recess protocol, but conducted at the request of the person who wants to use this proof in its defense in court to substantiate the voluntary surrender of the subject or active repentance. The exception in this case of the defensive proof, obtained by the accusation party with violation of the law, was not eliminated, and on the contrary, would increase damage to a fair permission of the case.

The third situation may occur when making a decision to refuse to initiate a case or termination: illegally conducted in the period of verification reporting a crime of a notch cannot entail an elimination of evidence that substantiate the fact of causing damage to this secession when considering his compensation to the affected person.

The full text of the article can be obtained in the Criminal Procedure Criminal Procedure -http://e.ugpr.ru/article.aspx?aid\u003d446448.

Kalinovsky k.b. "Investigate" search - illegal know-how // Criminal process. 2015. No. 1. P. 9.

This is a generally accepted interpretation rule, for example, was used by the Constitutional Court of the Russian Federation in an ABZ. 3 clause 2 of the motivation part of its resolution of June 13, 1996 No. 14-p. Even more hard there is a ban on expansion interpretation of such special normsthat limit the rights and freedoms of citizens (see: Resolutions of the Constitutional Court of the Russian Federation of October 30, 2003 No. 15-P, dated June 30, 2011 No. 14-P, dated December 8, 2015 No. 31-P, etc.) Manufacture Receptions as an investigative action is associated with the possibility of applying forced dissemination of objects and documents, penetration into housing, etc.

Paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06.2015 No. 29 "On the practice of applying the legislation by the courts providing the right to defense in criminal proceedings." // Russian newspaper. July 10, 2015

The problems of identifying essential and insignificant violations, the so-called "asymmetry" of the admissibility of evidence, as well as the use of information obtained in violation of the law, are acutely discussion and unreasonable solutions. We do not pretend to put a point in the scientific discussion on these issues, but adhere to the consistent approach to their permission. For him, see: Kalinovsky K.B. The materiality of criminal procedural disorders when collecting evidence // The legality, operational and investigation activities and the criminal process. Mater. Intern Scientific pr. conf. Part 2. SPb., 1998. P. 11-14; Kalinovsky k.b. The legality and types of the criminal process. Diss. Cand. jurid science St. Petersburg., 1999. P. 117; Smirnov A.V. Commentary on Article 75 of the Criminal Procedure of the Russian Federation // Smirnov A.V. Kalinovsky k.b. Comments on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. St. Petersburg: Peter, 2003 (URL: http://kalinovsky-k.narod.ru/p/komm-075.htm), Smirnov A.V. Solving the issue of admissibility as evidence of information obtained in violation of the law // Criminal Procedure. 2009. No. 1, etc.

To apply this approach, courts can take advantage of the following interpretation of part of the first Article 75 of the Code of Criminal Procedure: it provides for violation of the Code requirements as a whole (that is, the principles of criminal proceedings), and not separate prescriptions; Violation of individual prescriptions entails other consequences, but not the exclusion of evidence. See Smirnov A.V., Kalinovsky K.B. Comment to Art. 75 Code of Criminal Procedure / Commentary on the Criminal Procedure Code of the Russian Federation. 5th ed. Under total. ed. A.V. Smirnova. M.: Prospekt, 2009.

Is it possible to search for a criminal case?

Lawyer Lebedev Z.S.

Good day! According to Article 144 of the Criminal Procedure Code, the investigator, the body of the inquiry, the investigator, the head of the investigative body is obliged to accept, check the message about any perfect or preparing crime and within the competence established by this Code, to make a decision on it no later than 3 days The date of receipt of the specified message. When verifying the crime report, the investigator, the investigator, the investigator, the head of the investigative body is entitled to receive explanations, samples for a comparative study, to recover documents and objects, to withdraw them in the manner established by this Code, to appoint a forensic examination, to participate in its production and to obtain a conclusion Expert B. reasonable time, examine the scene of the incident, documents, objects, corpses, examination, to require the production of documentary inspections, revisions, research of documents, subjects, corpses, to involve specialists to participate in these actions, to give an inquiry authority compulsory for execution a written order for operational search activities .
Persons participating in the production of procedural actions when verifying a crime report explain their rights and obligations provided for by this Code, and it is possible to carry out these rights in the part in which the procedural actions and procedural decisions affect their interests, including the rights Do not testify against yourself, your spouse (your spouse) and other close relatives, the circle of which is determined by paragraph 4 of Article 5 of this Code, to use the services of a lawyer, as well as bring complaints against actions (inaction) and decisions of the investigator, the head of the division of the inquiry, the authority chief Inquiry, the inquiry, investigator, the head of the investigative body in the manner prescribed by Chapter 16 of this Code. Participants in the verification of a crime report can be prevented on non-disclosure of pre-trial data in the manner established by Article 161 of this Code. If necessary, the security of the pre-trial production participant is provided in the manner prescribed part of the ninth article 166 of this Code, including when receiving a crime report.
During the verification of a crime report, information can be used as evidence subject to the provisions of Articles 75 and 89 of this Code. If after the initiation of the criminal case, the protection of the protection or victim will be announced a petition for the production of additional or re-forensic examination, then such a petition is subject to satisfaction.
According to a crime disseminated in the media, the inspection is carried out on behalf of the Prosecutor of the Inquiry authority, as well as on behalf of the head of the investigator's investigator. Editorial, the chief editor of the corresponding media is obliged to convey on the request of the prosecutor, the investigator or the inquiry authority the documents and materials confirming the report on the crime, as well as data on the person who provided the specified information, with the exception of cases when The face put a condition for maintaining a source of information.
The head of the investigative body, the head of the inquiry authority has the right to the motivated petition according to the investigator, the investigator to extend up to 10 days, set by part of the first this article. If necessary, the production of documentary inspections, revisions, forensic examinations, Research of documents, subjects, corpses, as well as conducting operational-search activities The head of the investigative body at the request of the investigator, and the prosecutor at the request of the investigator has the right to extend this period to 30 days with a mandatory indication of specific, actual circumstances that served as the basis for such an extension.
The applicant is issued a document on making a crime report with an indication of the data on the person, and the date and time of its adoption.
Refusal to accept a crime message can be appealed to the prosecutor or the court in the manner prescribed by Articles 124 and 125 of this Code.
The statement of the victim or his legal representative for criminal cases of private accusation filed to the court is considered by the judge in accordance with Article 318 of this Code. In cases provided for by part of the fourth article 147 of this Code, the verification of a crime report is carried out in accordance with the rules established by this article.
Upon admission from the inquiry authority a message about crimes, stipulated by articles 198 - 199.1 of the Criminal Code of the Russian Federation, the investigator in the absence of grounds for refusing to initiate a criminal case on time no later than three days from the date of receipt of such a report sends to the higher tax authority in relation to the tax authority, which consists in tax accounting (tax agent , payer of the collection, payer of insurance premiums), or upon receipt from the body of the Investigations of the Criminal Code provided for in Articles 199.3 and 199.4 of the Criminal Code of the Russian Federation, into the territorial body of the Insurer, in which the Insured is registered - individual or an insured organization who are obliged to pay insurance premiums for compulsory social insurance against industrial accidents and professional diseases In public extrabudgetary fund (hereinafter referred to as the Insured), a copy of such a message with the application of relevant documents and the preliminary calculation of the estimated amount of arrears on taxes, fees and (or) insurance premiums.
According to the results of consideration of materials directed by the investigator in the manner prescribed by the seventh of this article, the tax authority or the territorial body of the Insurer on time no later than 15 days from the date of such materials is obtained:
1) directs the investigator to the conclusion about the violation of the legislation of the Russian Federation on taxes and fees and (or) legislation of the Russian Federation on compulsory social insurance against accidents in the production and occupational diseases and the correctness of the preliminary calculation of the amount of alleged arrears of taxes, fees and (or) insurance contributions if the circumstances referred to in the crime report were the subject of research during previously appointed tax audit or verification of the correctness of the calculation, timeliness and completeness of payment (transfer) of insurance premiums for compulsory social insurance against industrial accidents and occupational diseases, based on the results of which the decision has entered into force tax author or territorial body insurer, as well as information about appealing or suspending the execution of such a decision;
2) informs the investigator that in relation to the taxpayer ( tax agent, payer of collecting, payer of insurance premiums) or the policyholder conducts a tax audit or verification of the correctness of the calculation, timeliness and completeness of payment (transfer) of insurance premiums for compulsory social insurance against industrial accidents and occupational diseases, according to the results of which the decision has not yet been accepted or has not entered into legal force;
3) informs the investigator about the lack of information on violation of the legislation of the Russian Federation on taxes and fees and (or) legislation of the Russian Federation on compulsory social insurance against industrial accidents and occupational diseases in the event that the circumstances referred to the crime report Conduct a tax audit or verification of the correctness of the calculation, timeliness and completeness of payment (transfer) of insurance premiums for compulsory social insurance against industrial accidents and occupational diseases.
After receiving the conclusion of the tax authority or the territorial body of the Insurer, but no later than 30 days from the date of receipt of the report on the crime on the results of the consideration of this conclusion, the investigator should be made a procedural decision. Criminal case on crimes stipulated by Articles 198 - 199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation, may be initiated by the investigator before receiving the procedure or information from the Tax authority or the territorial body of the Insurer of the Conclusion or Information provided for in the Eighth of this Article, in the presence of a reason and sufficient data indicating on signs of a crime.
According to Article 6 of the Federal Law "On Operational Festival Activities", the following operational search activities are carried out in the implementation of operational and search activities:
1. Poll.
2. Guidance.
3. Collection of samples for comparative research.
4. Verification purchase.
5. Study of items and documents.
6. Observation.
7. Personal identification.
8. Survey of premises, buildings, structures, areas of terrain and vehicles.
9. Control of mailing, telegraph and other messages.
10. Listening to telephone conversations.
11. Removing information from technical communication channels.
12. Operational implementation.
13. Controlled delivery.
14. Operational experiment.
15. Obtaining computer information.
The above list of operational-search activities can be changed or supplemented only by federal law.
In the course of operational search activities are used information Systems, video and audio recordings, film and photography, as well as other technical and other means that do not damage the life and health of people and do not harm the environment.
Operational search activities related to the control of postal shipments, telegraph and other messages, listening to telephone connections with connecting enterprises, institutions and organizations regardless of the forms of ownership, individuals and legal entities, with the removal of information from technical Communication channels, with the receipt of computer information, are carried out using operational and technical forces and means of organs federal Service security, internal affairs bodies in the manner determined by interdepartmental regulatory acts or agreements between bodies carrying out operational investigative activities.
Officials of bodies engaged in operational search activities solve its tasks through personal participation in the organization and conduct of operational-search activities, using the assistance of officials and specialists with scientific, technical and other special knowledge, as well as individual citizens With their consent on a vowel and unplaced basis.
It is prohibited to conduct operational-search activities and the use of special and other technical means intended (designed, adapted, programmed) for the underfloor receipt of information, not authorized by this Federal law by individuals and legal entities.
The importation into the Russian Federation and the export of special technical means intended for the underfloor receipt of information that are not authorized by the implementation of operational investigative activities by individuals and legal entities to be licensed in the manner established by the Government of the Russian Federation.
The list of species of special technical means intended for the underwent obtaining information in the process of carrying out operational investigative activities is established by the Government of the Russian Federation.
Development, production, implementation and acquisition in order to sell special technical means intended for the inadvertent receipt of information, individual entrepreneurs and legal entities carrying out business activitiesare subject to licensing in accordance with the legislation of the Russian Federation.
Thus, before the initiation of the criminal case, it is allowed to study subjects and documents, which very often acquires characteristic searches.

order of conduct

In accordance with Art. 182 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure), under the search understand the investigative action, consisting of finding and withdrawal in any place or in any person of the subjects and documents that may be important for the case. p. 1 Art. 182 of the Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ ( acting editorial) Search can be made in order to detect wanted persons and corpses.

The legal basis of the search for the search is the presence of sufficient data to believe that in any place or in any person there may be tools of crime, objects, documents and values \u200b\u200bthat may be important for a criminal case.

Depending on the nature of the integrated objects distinguish:

Search room;

• - search of the area of \u200b\u200bthe terrain, which is under the jurisdiction of a certain person or organization, the territory of the military unit;
• - Personal search. Lutsenko O.A. Search and searches. Procedural order, tactics and evidence / O.A. Lutsenko. Rostov N / D, published "Phoenix", 2005. P. 34.

If the search is made in the open territory (forest, field, water, ...), affordable to any person, in this case it is not about the search, but about the inspection of the area.

N.P. Pechniki Pecomers N.P. Procedural and tactical issues of search for search and removal in the criminal process: a course of lectures / N.P. Pechs. - Tambov: Publishing House Tamb. State tehn University, 2008. S. 5. Notes that the law does not associate a search with the presence of exclusively evidence. As the author indicates, the basis for it can serve as a combination of evidence and actual data, hoped from operational-search sources. Operational search data may complement the existing combination of procedural information about finding in a certain room or place, in any face of objects that are important in the case.

If, for example, a detainee theft at the interrogation showed that he was visiting, he constantly lives, temporarily stopped at acquaintances, then the grounds for the production of a search in the apartment of acquaintances in this case are not enough. Upon receipt of non-doubts in the accuracy of the confidential source message that the detainee made a series of corners and the stolen is located in a room where it temporarily lives, the actual data (procedural and operational-search) are in aggregate are sufficient to make a decision on the workout On the procedure for submitting the results of operational-search activities in the investigator, the investigator, the prosecutor or to court: the order of the Ministry of Internal Affairs of the Russian Federation of 05/13/1998 .. Thus, the operational search information indicating the location of the objects of objects to be the basis for the production of search, If it corresponds to (not contradictory) the circumstances established in case and is no doubt about reliability.

The search is carried out exclusively within the framework of an initiated criminal case. Conducting a search before the initiation of a criminal case is contrary to Part 2 of Art. 50 of the Constitution of Russia ("With the implementation of justice, the use of evidence obtained in violation of the Federal Law"), Art. 75 of the Code of Criminal Procedure and entails the recognition of the evidence obtained in such a way legal force. Conditioning to initiate a criminal case, the Supreme Court of the Russian Federation also regards both a violation of a criminal procedure law that causes the loss of the proof value of the data obtained. Bulletin of the Supreme Court RSFSR. - 1989. - No. 1. - P. 9-10.

However, it seems to us that the said does not mean that real evidence cannot be obtained, including withdrawn, before the initiation of a criminal case. Thus, the Federal Law "On Operational Festival Activities" Federal Law "On Operational Festival Activities" of August 12, 1995 No. 144-FZ (as amended by 24.07.2007 No. 214-ФЗ). // SZ RF. 2007. No. 45. Art. 3445. In the number of operational-search activities, such as collecting samples for a comparative study, verification procurement, controlled by the supply, etc., during which material evidence may be seized. They can also be withdrawn and with administrative detaining of the person, and when conducting provided by law Interest procedures. At the same time, it is important that the results of these actions are documented and correctly reflected the essence of the actions produced. In this case, it seems to us, they may well serve as a basis for deciding on the initiation of a criminal case, and to act as a means of proving on the already excited criminal case. However, in accordance with paragraph 6 of Part 2 of Article 74 of the Code of Criminal Procedure, these documents should be considered not as protocols with search results, but as other documents containing information on the basis of the presence or absence of circumstances to be proof in the production of preliminary investigation. .

So, the legality and reasonable search is estimated, based on the presence of grounds at the time of decision-making and should not depend on its results. For example, if the investigator had grounds for entering a dwelling or another room for the purpose of the search for a search, then it is impossible to put him in blame that nothing has been detected and seized. On the other hand, the lack of such grounds may entail the recognition of the actions of the investigator for the workshop, which led to the detection of the importance to the case of objects, illegal, and the search protocol as evidence is insignificant. Belkin R.S. Profession - investigator / R.S. Belkin. - M., Lawyer, 2008. P. 68.

The decision on the manufacture of a search needs procedural design. Wherein:

• a) Search anywhere, except for the dwelling (as a general rule), is produced on the basis of the decision of the investigator (paragraph 2 of Art. 182 of the Code of Criminal Procedure). Authorization of this resolution is not provided;
• b) The search in the dwelling implies the investigator by the investigator on the initiation of a request for the search for a search in the housing, as well as in the presence of the foundations - the judge's decision to resolve the production of a search in the dwelling (this provision was enacted from January 1, 2004). A clearly sample resolution of the resolution of the preparation of a search in the dwelling is presented in Appendix "A". It should be noted that until January 1, 2004, a search in the dwelling was possible under the decisions of the investigator, authorized by the prosecutor;
• c) In exceptional cases, when the production of a search in the home does not tolerate deposits, the investigator makes an investigative effect on the basis of its resolution.

In accordance with paragraph 4 of Art. 182 Code of Criminal Procedure, before the start of the search, the investigator presents a decree on its production, and in the cases stipulated by the third of this article - a court decision allowing its production. The Decree of the investigator or judge provides information from which the need for the production of investigative action follows. Sources of evidence are indicated at discretion. At the same time, the law does not contain the requirements of transferring subjects and documents to be withdrawn.

The criminal procedural law does not define an exhaustively circle of persons who are searched. They may be suspects accused, other participants in criminal proceedings, as well as any other persons who do not have procedural status.

In the manufacture of the search, the presence of at least two understandables is required. A larger number of witnesses are necessary in cases where search actions carry out several investigators and cameras and in different places.

When searching should be ensured by the presence of a person from whom it is produced or adult members of his family. The law does not regulate the situation when it is impossible to fulfill this condition. It seems that by a court decision, a specially stipulating this circumstance, a search can be carried out in the presence of other persons who have committed themselves to the preservation of the dwelling and the property in it, including the defender (lawyer), a representative of the housing and operational organization.

Search in the premises occupied by the Organization, is made in the presence of a representative of the administration. It seems that by analogy from Part 2 of Art. 53 Code of Criminal Procedure The lawyer has the right to give his principal in the presence of the investigator brief advice.

The proposal for the voluntary issuance of objects, following after presenting to those who interested persons on the search, has not only criminal procedural, but also criminal law.

So, for example, by virtue of Note 1 to Art. 228 of the Criminal Code of the Russian Federation Exemption of the person from criminal liability for committing a crime provided for by part 1 or part 2 of Art. 228 of the Criminal Code of the Russian Federation, possibly in the presence of a set of two conditions: the voluntary delivery by the person of narcotic drugs, psychotropic substances or their analogues and its active actions that contributed to the disclosure or suppression of crimes related to the illicit trafficking of narcotic drugs, psychotropic substances or their analogues, They committed, detecting property mined by criminal.

It seems to us right to agree with the opinion of N.S. Pechskova o the need to evaluate the circumstances of the search in order to properly output. In particular, if the place of storage of drugs or weapons was not disguised and his finding did not imagine much difficulty, then voluntary surrender was most likely not, since the person had no real opportunity to dispose of these objects in a different way. If they were in a cache, to detect which the special scrupulousness of the search and special devices was required, then the actions for issuing are more voluntary. Resolution of the Plenum of the Supreme Court dated June 15, 2006 No. 14 "On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and poisonous substances" // Bulletin of the Supreme Court. 2006. No. 9.

Highting the legislative consolidation of the voluntary issuance of the desired objects as a basis for not the work by the investigator of the search, N.S. Pechniks indicates the need to understand of this right The investigator as the right not to produce any search operations, since the search as such is produced, which should be reflected in the protocol. Peckens N.P. Declaration. P. 9-10.

ETC. Satin emphasizes that the search is ensured state coercion. At the same time, the author focuses on the fact that the search decision makes it possible to freely enter the premises to be examined, including forcibly opening both the premises and any storage facilities or objects within the search room. Satina P.R. Tactics of individual investigative actions / P.R. Satin. - M., 2004. P. 25.

In accordance with paragraph 12 of Art. 182 of the Code of Criminal Procedure, in the manufacture of a search, the Protocol is drawn up in accordance with Articles 166 and 167 of the Code of Criminal Procedure. In the protocol, it should be indicated, in which place and under what circumstances the items, documents or values \u200b\u200bwere discovered, they were issued voluntarily or seized forcibly. All identifiable items, documents and values \u200b\u200bshould be listed with an accurate indication of their quantity, measures, weight, individual signs, and by the possibility of value. If at the course of the search, attempts were made to destroy or hide objects to be withdrawn, documents or values \u200b\u200bto be seized, the corresponding entry is made in the protocol and measures are specified. A copy of the protocol is awarded to a person, in the room of which a search was made, or an adult member of his family. If the search was made in the organization's premises, then a copy of the protocol is awarded to a representative of the administration of the relevant organization.

Analyzing the foregoing, we will conclusion. So, guaranteed by the Constitution of the Russian Federation, the inviolability of the housing and personal lives of citizens may be limited to legal grounds in cases of a criminal search. Conducting a searched to initiate a criminal case law regards the violation of the criminal procedure law, which entails the loss of evidence of the data obtained.

The current legislation characterizes the search as an investigative action, which is in finding and withdrawal in any place or from a person of the subjects and documents that may be important for the case. The basis of the search for the search is the presence of sufficient data to believe that in any place or in any person there may be tools of crime, objects, documents and values \u200b\u200bthat may be significance for a criminal case.

The search in the residential premises, in contrast to the search in other places, is made exclusively on the basis of the judge's decision to resolve the preparation of the search in the home.

The purpose of the search is to collect evidence. Since when conducting a search, the right of a person for inviolability is seriously limited, it is necessary to indicate that this investigative effect can be produced only if there is a sufficient number of actual and procedural grounds in materials.