2. Search is made on the basis of the decree of the investigator.
3. A search in the dwelling is made on the basis of a court decision taken in the manner established by Article 165 of this Code.
The position of the part of the fourth article 182 in the system of current criminal procedure regulation implies the need to take a court decision on the excavation and withdrawal by conducting a search for subjects and documents containing information on deposits and accounts in banks and other credit organizations (Definition of the Constitutional Court of the Russian Federation dated 19.01.2005 N 10-O).
4. Prior to the start of the search, the investigator places a decree on its production, and in the cases provided for by the third this article, - judicial decisionallowing its production.
5. Before the search start, the investigator suggests voluntarily to issue subjects, documents and values \u200b\u200bto be seized, which may be significance for a criminal case. If they are issued voluntarily and there is no reason to fear their hiding, the investigator is entitled not to be searched.
6. In the manufacture of search, any premises may be opened if the owner refuses to voluntarily open them. It should not be allowed not caused by the need to damage the property.
7. The investigator takes measures to not be announced during the search private life Persons in the premises of which was searched, his personal and (or) family mystery, as well as the circumstances of the privacy of others.
8. The investigator is entitled to prohibit persons present in the place where the search is made, to leave it, as well as communicate with each other or other persons before the end of the search.
9. In the manufacture of search, in any case, objects and documents seized from turnover are seized.
9.1. In the manufacture of a search, electronic media are withdrawn with the participation of a specialist. At the request of the legitimate owner of the identified electronic media or the owner of the information contained on them by a specialist involved in the search in the presence of information that understood from the identified electronic media is made copying information. Copying information is carried out on other electronic media provided by the legitimate owner of the identified electronic media or the owner of the information contained on them. When making a search, information is not allowed to copy information if it may prevent the investigation of the crime or, according to a specialist, entail a loss or change of information. Electronic media containing copied information are transmitted legal owner Received electronic information media or the owner of the information contained on them. On the implementation of copying information and the transfer of electronic media information containing copied information, the legal owner of the information from the electronic media or the owner of the information contained on them in the protocol is recorded.
10. The seized objects, documents and values \u200b\u200bare presented to other persons present during the search, and, if necessary, are packaged and sealed at the search site, which is certified by the signatures of these persons.
11. In the manufacture of search, a person is involved, in the premises of which is being searched, or adult members of his family. 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.
12. In the manufacture of a search, a protocol is compiled in accordance with.
13. The protocol shall 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.
14. If at the course of the search, attempts were made to destroy or hide the subjects, documents or values \u200b\u200bto be seized, the corresponding entry is made in the protocol and measures are specified.
15. A copy of the protocol is awarded to a person in the premises 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.
16. Search can be made in order to detect wanted persons and corpses.
Comment on Article 182
1. The purpose of the search is a search and removal of objects that matter to the case, which is indicated in part 1 of the commented article. By searching, property may also be found in ensuring a crime material damage. When conducting a search, detected objects and documents prohibited for appeal are to be withdrawn. Search can be carried out in order to detect wanted persons and corpses.
2. Search can only be made after the initiation of a criminal case. Conducting a search to initiate a criminal case of the Russian Armed Forces of the Russian Federation as a violation of criminal procedural lawcausing the loss of the proof value of the data obtained.
3. For the preparation of the search (in contrast to the excavation), there is no accurate knowledge of the object to be withdrawn or its location.
4. The decision to make a decision on the preparation of a sediment is the presence of sufficient actual data forming the assumption of finding the objects specified in the object of the commented article in a certain place of the object. These actual data should be contained in procedural documents, fixing information obtained from sources named in the Code of Criminal Procedure. Decision on the work of the search should be preceded by the assessment of the collected actual data. At the same time, it is necessary to take into account the information that the bodies of the inquiries received as a result of the operational search activities.
5. For the search for the search, the investigator makes a motivated resolution.
6. The search in the dwelling is made on the basis of a court decision.
7. In connection with a different understanding in practice, the term "housing" seems necessary to take into account the interpretation of this term in the note to Art. 139 of the Criminal Code on the responsibility for violation of the housing integrity. This note states that under the housing in the Criminal Code are understood "An individual residential building with residents and non-residential premises, residential premises, regardless of the form of ownership included in housing Foundation and suitable for permanent or temporary residence, as well as another room or a building that is not included in the housing foundation, but intended for temporary residence. "The above provision of Article 139 of the Criminal Code was reproduced in paragraph 10 of Art. 5 of the Code of Criminal Procedure
8. The adoption of a special decree in the investigator is not required for the production of a personal search in the cases specified in Part 2 of Art. 184 CPC.
9. In retreat from general rules In the presence of exceptional cases, when the production of search or recess in the dwelling, as well as a personal search (like the dwelling inspection), does not tolerate declaration, these investigative actions can be made on the basis of a decision of the investigator without obtaining a court decision. In this case, the investigator within 24 hours from the start of the origin of the investigative action notifies the judge and the prosecutor. Copies of the decree on the production of investigative action are made to the notification to verify the legality of the decision. After receiving the specified notice, the judge checks the legality of the investigative effect and makes the appropriate decision. If the judge recognizes the action of illegal, the evidence obtained in this case is invalid in accordance with Art. 75 CPC.
10. There are no cases that are considered when a delay in conducting a search may cause negative consequences for business. These cases include, for example, the following:
a) when the actual bases for the production of search appeared suddenly in the production of other investigative actions (inspection, recesses);
b) when the emergency room is dictated by the situation of just a perfect crime;
c) when urgent search preparation is necessary to curb further criminal activities;
d) when information was received that the person was at the disposal of the objects to be significant for the case takes measures to destroy them;
e) in the cases listed in part 2 of Art. 184 CPC;
e) When the slightest selection with a search can entail the destruction or concealment of the desired objects or for other reasons will make them inaccessible for the investigator or court.
It is important to take into account that the investigator should have actual grounds for the search for search and make a motivated decision, which should contain not only the time and place of action, the motives for the search for search, but also the rationale for its conduct without permission
11. The notification of the judge and the prosecutor about the resulting search is made in writing with the application of copies of the documents specified in Part 5 of Art. 165 OKK
12. Search can be held at any time of the investigation, immediately after the emergence of the grounds for this, which is often of paramount importance for its effectiveness.
13. Search can be produced anywhere where, on the assumption of the investigator, there may be desired subjects, documents, values, etc.
14. Usually a search is carried out in the accused or suspects; It can be produced from other persons if there are sufficient grounds for this.
15. Search can be revealed in compliance with the requirements contained in the commented article.
16. If you need to search outside the investigation area, the investigator can produce it or entrust the relevant investigator or the inquiry authority. In the case of a search in the housing, the judge must be applied to the assignment.
17. Main search participants - investigator or investigator.
18. Police officers can be attracted for the search for the search. They help the investigator in the search for the desired objects, ensuring observation of the behavior of the searched and members of his family, ensuring the safety of detected objects, prevent attempts to destroy or rewrite the wanted objects, etc.
19. In the manufacture of search, a person is involved in the premises of which is being searched, or adult members of his family. In the manufacture of the search, the defender is entitled to attend, as well as the lawyer of that person, in the premises of which is searched (see paragraph 11 of the commented article). Inspection with the possibilities of the participation of the owner of the residential premises during the search of the Russian Armed Forces of the Russian Federation considers as a gross violation of the law, rights and legitimate interests The accused and rejects recognition as evidence of the data obtained.
20. During the search, the seizure of documents in the organization requires the participation of persons in the conduct of which they are, or the representative of the administration; With the withdrawal of material values \u200b\u200b- the presence of a materially responsible person.
21. The victims, accused, suspects are advisable to attract to participate in the search, when the identification of the desired objects is necessary.
22. On the requirements for persons caused as well-minded, see Art. 170 Code of Criminal Procedure. Since persons involved in the asked when searching may in the future be witnesses, it is necessary to keep in mind that the testimony of these individuals will not have evidentiary importance if they are not able to perceive the circumstances that are important to And give about them true testimony. Therefore, such persons should not be attracted as well.
23. The actual data obtained as a result of a search conducted in the presence of one understanding and in the absence of a family member who has been searched, cannot be recognized as evidence of the Armed Forces of the Russian Federation considers it illegal searching in the absence of a person who has it is made if it is possible to provide His presence.
24. The preparation of the search at night is not allowed, except in cases that do not endile.
25. Clause 4 of the commented article contains an imperative requirement: before the start of the search, the investigator places a decree on its production, and in the cases provided for in. 3 of this article, a judicial decision resolving the preparation of the search. The wording of the given provision of the law is such that it does not allow any doubt that these documents should be presented, without expecting the requirements for their presentation by a citizen or an official.
26. Before the search start, the investigator suggests voluntarily to issue subjects, documents, values \u200b\u200band other objects that may be important for a criminal case. If voluntary issuance took place, the search is allowed not to produce if there is no reason to fear the concealment of the object's investigator of the object. Thus, the voluntary issuance of certain objects does not always entail the cessation of the preparation of the search.
27. The investigator has the right to produce any searches if the inspection of the room or the storage facility is not associated with their damage or destruction.
28. In cases where the owner refuses to open a room or a repository, which is impossible to operate without causing damage, it is necessary:
a) clarify the owner of the premises against the counterproof of his actions, he wrote to him the text of Part 6 of the commented article;
b) attract specialists to assist in the opening of premises and storage. Only those damage that cannot be avoided are allowed.
29. In the manufacture of search in a room occupied by two or several families, the investigator has the right to be searched not only the premises occupied by a citizen in respect of which a decision on the production of search, but first and the public seats. This is done in order to:
a) to deprive the possibilities of citizens living in other rooms, to assist the search in the hiding objects of interest to the consequence;
b) Ensure the use of these places the neighbors being searched.
30. In the case of obtaining an investigator about concealing the stolen or other items living in this room, a citizen who has been searched, the investigator is entitled to decide on the search for the premises, in which the desired objects are hidden. At the same time, the permission of the court is not required, since there is no case that does not suffer.
31. Investigators and investigators need to fully comply with the requirements for the inadmissibility of the announcement (and, therefore, disclosure) identified during the search for the circumstances of the private life of the person, in the premises of which was searched, his personal or family secrets, as well as the circumstances of the privacy of others . Non-compliance these requirements - this is a violation not only procedural normcontained in Part 7 of the commented article, but also the norms of the Constitution. Since the above circumstances are revealed during the investigative action, the investigator is entitled not only to make the general prevention of understandable professionals and other persons who were present in the manufacture of search, but also to prevent them about criminal responsibility.
32. The search is made in such a way that all possible (in specific conditions) of the storage location of the desired objects are searched.
33. Because of the search for searches, the participation of several officialsThe search process can be made in conjunction with these persons or apart. But if the search is made apologized, when searching in each room (for example, in each of the rooms), two understandable and at least one family member should be present.
34. The implementation by the investigator of authority to limit the rights of persons present at the search site, which is to prohibit it, as well as communicate with other persons before the end of the search, is often discontent with these persons. In this regard, the investigator at the very beginning of investigative action should clarify the participating and present persons to their rights and obligations.
35. In the production of recess, the solution to the issue of withdrawal of objects and documents that may be relevant to the case is not difficult, since the investigator means an individually defined object. It is more difficult to identify objects that can be relevant to the case if they are found during the search, and the investigator does not know the individual signs of the found items. If the investigator is known at least general signs (generic, species, group) of the found items, then if there are doubts, all the detected items of this kind should be selected (for example, three pocket hours, five pieces of rings, etc.). It should be borne in mind that the law indicates the subjects that may be relevant to the case.
36. Not related to the case of a thing is subject to return by belonging; They may be imposed arrest in providing a civil law.
37. In the event of detection (independently of attitude to this case), it includes items that are purchased only on special permits (weapons, explosives, potent poisons; currency values; precious metals, with the exception of jewelry and other Household Products), as well as items, for the manufacture, storage and sales of which are criminalized.
38. Objects found during search or excavation, which can be real evidence in another criminal case, are also subject to withdrawal.
39. Received objects are often exposed to inspection at the site of their detection and seizure. Inspection, as a rule, is not performed if it takes for a long time, as well as in the absence of the necessary conditions (lighting, special devices, etc.).
40. The procedure for the withdrawal, storage and delivery of items, values \u200b\u200band other property is governed by special instructions.
41. The withdrawn items, being real evidence, are subject to storage before the sentence entry into force or before the decree on the termination of the case, and only items subjected to rapidly damage if they cannot be returned to the owner, rendered to the relevant institutions.
42. Considering the rules of violations of the procedural law, non-compliance with the rules for the seizure of objects and documents during the search, the Armed Forces of the Russian Federation drew attention to the fact that objects seized during search, if necessary, are packaged and sealed at the search site.
43. The Armed Forces of the Russian Federation also noted that all seized items are presented to other people who are understood. At the same time, he recognized the legitimate actions of the judge, recognizing unacceptable material evidence unacceptable, since the items were withdrawn with violation of the law.
44. Indicates the obligation to compile a protocol of the searched, the legislator referred to the action in this case general requirementspresented to the protocol established by Art. 166 and 167 CPC. But it did not limit himself, providing also special requirements that should be taken into account in the preparation of the search protocol (Part 13, 14 of the commented article).
45. When withdrawal, in the process of searching a large number of items, a special inventory of these items is drawn up, as indicated in the protocol. Inventory is not just an application to the protocol, and its component, since the information contained in it has the same evidence as the circumstances recorded in the Protocol.
46. \u200b\u200bIn the search protocol, you must specify: where objects were found in which they were kept, as stored, storage facilities in which items (caches) are found, their location, size and as construction. The protocol is recorded detected, character and location of traces, as well as the fact of their withdrawal.
47. In the process of searching for presentation for identification of objects or documents, if it took place, it must be configured.
48. The protocol should not be noted that all identified objects and documents were presented to other persons who were present during the search. Failure to comply with these requirements of the Russian Armed Forces is considering as a gross violation of the law.
49. When photographing objects or use other technical means It is necessary to specify this in the protocol in compliance with the rules of Art. 166 CPC.
50. The protocol should reflect the fact of forced opening of premises or storage faced by refusing to open them.
51. In the final part of the protocol, it is indicated that the seized objects are sealing, as well as the method of their packaging; The list of schemes attached to the protocol, castors, implications, etc.; The applications and complaints, notes of the witnessed, statements of specialists, etc. are recorded.
52. In the commented article, it is referred to: if at the course of the search, attempts were made to destroy or hide objects to be withdrawn, documents or values, the corresponding entry is made and measures are made in the protocol.
1. The basis of the search for the search is the presence of sufficient data to believe that in any place or in any person can be implemented, equipment or other means of committing a crime, subjects, documents and values \u200b\u200bthat may be important for a criminal case.
2. Search is made on the basis of the decree of the investigator.
3. A search in the dwelling is made on the basis of a court decision taken in the manner established by Article 165 of this Code.
4. Prior to the start of the search, the investigator places the decision on its production, and in the cases stipulated by the third of this article, a court decision allowing its production.
5. Before the search start, the investigator suggests voluntarily to issue subjects, documents and values \u200b\u200bto be seized, which may be significance for a criminal case. If they are issued voluntarily and there is no reason to fear their hiding, the investigator is entitled not to be searched.
6. In the manufacture of search, any premises may be opened if the owner refuses to voluntarily open them. It should not be allowed not caused by the need to damage the property.
7. The investigator takes measures to not be announced during the search for the circumstances of the private life of the person, in the premises of which a search was made, his personal and (or) family mystery, as well as the circumstances of the privacy of others.
8. The investigator is entitled to prohibit persons present in the place where the search is made, to leave it, as well as communicate with each other or other persons before the end of the search.
9. In the manufacture of search, in any case, objects and documents seized from turnover are seized.
(see text in the previous edition)
10. The seized objects, documents and values \u200b\u200bare presented to other persons present during the search, and, if necessary, are packaged and sealed at the search site, which is certified by the signatures of these persons.
11. In the manufacture of search, a person is involved, in the premises of which is being searched, or adult members of his family. 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.
(see text in the previous edition)
13. The protocol shall 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.
By general rule All investigative actions produced by the officers of investigators and inquiry should begin only from the moment of initiating a criminal case. So says the letter of the law, but in reality it is not always appropriate.
In practice, the process of initiating a criminal case is often complicated by bureaucratic difficulties, as a result of which the time is lost to disclose the crime.
To solve this problem, legislation provides exceptions to produce investigative actions before the initiation of a criminal case.
What investigative actions are held before the initiation of a criminal case, we will tell about the article in this material.
Investigative actions - these are produced in the criminal case authorized employees Events and actions necessary to establish the circumstances of the evidence that occurred and collecting evidence.
Investigative actions are always ensured by the power of state coercion.
The permit for the production of investigative action makes either the court or the investigator himself. Judicial approval is required only for a minor list of investigative activities.
Sometimes their operations or experts designed to the procedure by the investigator themselves can be attracted to their implementation.
Investigative actions must be responsible for the following signs:
- Do not threaten the life and health of participants in investigative actions;
- Can not be held at night, if not for this good reason;
- Can be made with technical means of fixing information.
Based on the decree of the investigator, such investigative actions are carried out as a seizure, search, exhumation and examination.
All investigative activities must be recorded documentary design The protocol of the investigative action signed all its participants.
In the Criminal Procedure of the Russian Federation, an unambiguous list of investigative actions is presented. These can also be among other actions of the investigation officers who are absent in this list, but are important for a criminal case.
So, the most commonly used investigative action includes:
Among other things, as an investigative action can be applied: the imposition of arrest on the mail of the suspect, the recording of its negotiations, receiving data from the operator from the operator, etc.
The detention of the criminal and the arrest of his property is not recognized by investigative actions.
All protocols of investigative actions later are included in the criminal case materials. Some of them are even accompanied by photos.
Mandatory judicial permit requires a number of investigative activities:
All above the designated list of actions performed by the investigator must be carried out after the initiation of the case.
What investigator can conduct an investigator to initiate a criminal case, let's talk further.
All pre-trial proceedings were recorded in 2 part of the Code of Criminal Procedure of the Russian Federation. It consists of two sections.
Section number 7 considers everything related to the initiation of a criminal case. Section number 8 enshrines order preliminary investigationwhich seemed to also relate to the fact of initiating a criminal case.
However, the Code itself indicates that in some cases, some of the investigative actions may precede the initiation of the case. A number of cases in this context are called "not tolerating deposits".
In principle, in Art. 144 Code of Code of Criminal Procedure provides deciphering of those actions that can carry out employees of the investigation or inquiry at the moment when they received a crime message.
To them, in particular, belong:
All this may take place before the initiation of the case when the situation does not tolerate deposits. There is no decryption of such a thing as "not tolerating deposits" in the legislation.
And at the same time, it is obvious that if the question of the validity of the committed investigative event arises, it can be recognized as illegally implemented and completely canceled.
Let us dwell on the consideration of some of their actions that are permissible to initiate a criminal case.
An inspection of the scene in the Code of Criminal Procedure of the Russian Federation is devoted to Art. 176. It is produced to detect the circumstances of the case and evidence on it.
This investigative event allows you to solve the following tasks:
Inspection of the dwelling in 2020 can be carried out only on the basis of a court decision or with the consent of those living in it.
All significant entries on the inspection of the scene are reflected in the protocol, including the lack of important participants on the investigative action.
The protocol must be signed by all who was on the inspection. With the reluctance to leave their signature in it, they are obliged to write an explanation of the failure.
The operative of the inspection of the scene is due to the fact that after time many evidence can disappear and it will be impossible to reveal them later.
Inspection of the corpse can be like an independent investigative event, and it is carried out as part of an inspection of the scene. In the first case, its results are entered into a separate protocol, in the second case, the protocol for two investigative actions is one.
Inspection of the corpse should be carried out in the presence of a medical expert or doctor.
The participation of understandable in this event is necessary. The corpse is also the important detail of the investigation of the circumstances of cases, the operational analysis of which allows you to resolve many contradictions.
The human corpse is rapidly decomposed, begins to void and internally change. Detect some important details can be difficult, after a while after the death of man.
Examination represents investigative actionIt helps to determine without a forensic medical examination corporal damage, the nature of the special will take on a person, the establishment or refutation of the fact of intoxication.
The survey can be carried out with respect to the suspect, the victim or a witness with his consent.
Conducting a survey has its own key features:
Everything that was found during the inspection should be recorded in the Protocol of Examination. Typically, the primary inspection already gives an accurate idea of \u200b\u200bthe nature of the damage and features of the perfect act.
Judicial examination, while only describes those processes that occur inside the body and are not visible to the usual eye.
In the event that these investigative actions are not foundally recognized, sanctions may be applied in the form of a disciplinary penalty in relation to employees of the investigation or inquiry.
When the innocence of a person will be proved in respect of which investigative actions were made before the initiation of a criminal case, more serious consequences for the investigator may arise.
With a huge number of criminal cases inquiry, investigators and police often do not cope. The initiation of criminal cases is deposited at the same time without legal grounds for an indefinite period.
Guilty of this face continue to walk through the streets and represent the danger to society.
Often it is precisely the holding of immediate investigative actions, immediately after receiving information about a possible crime, someone's life can save or maintain most of the stole property.
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 participant of pre-trial production is in order, established part 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, established by part of the first 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 In criminal cases of private accusation, submitted 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 Russian Federation, 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 taxpayer (tax agent, payer of the collection, insurance premium payer ) or upon admission from the inquiry authority a report on the crimes provided for in Articles 199.3 and 199.4 of the Criminal Code of the Russian Federation - to the territorial body of the Insurer, in which the Insurer 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 sustainable receipt information not authorized by this Federal Law of Physical 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 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. So, the federal law "On operational-search activities" Federal Law "On Operational Festival Activities" from 12.08.1995 No. 144-FZ (as amended by 24.07.2007 No. 214-FZ). // 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 of 15.06.2006 No. 14 "On judicial practice For cases on 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.