A combination of coercion measures provided for by the law. Criminal proceeding measures

Perhaps there is not a single other field of activity, where the rights and freedoms of citizens are also strongly limited and the measures of state coercion were intensively used, as is the case in criminal proceedings. It is here that listening to negotiations, a seizure, search, temporary removal from the post, the imposition of arrest on property, detention on suspicion of committing a crime, detention and other procedural actions of a law firm nature, so necessary for disclosure and investigation of crimes. Here, as anywhere, there is a risk of unreasonable restriction of the rights and freedoms of participants in this activity, the behavior of which is an external impact on the part of state bodies and representing their officials in the criminal process.

For these reasons, the Russian criminal process is designed in such a way that on the one hand to give a real possibility of law enforcement agencies to protect the rights of victims from crimes, and on the other - to protect individuals who are criminal prosecution not only from illegal accusation, condemnation, but also from any other unreasonable Restrictions on their rights and freedoms. The practical implementation of this procedural balance is the most complicated task of state importance.

The most optimal version of its decision found a regulatory consolidation in the current criminal procedure legislation of the Russian Federation.

It is in it that the measures of procedural coercion and the procedure for their application in criminal proceedings are provided.

The circle of such measures is quite wide. Some of them are intended to provide preparation in the process of proof, the use of others is intended to promote responsibilities by participants in criminal proceedings, as well as maintaining the procedure at the court session and solving issues related to the execution of the sentence. But most of the measures of procedural coercion exist in the law so that there is an opportunity to prevent the evasion of the suspect and the accused of investigation and the court, prevent the commission of new crimes or otherwise to prevent the production of criminal proceedings.

Unequal legal Nature The measures of procedural coercion was the basic basis for their legislative classification. In Section IV of the Criminal Code of the Russian Federation (Article 91 - 118 of the Code of Criminal Procedure), all of them are combined into the following groups:

1) the detention of the suspect is the only measure of procedural coercion, used in the presence of one of the grounds provided for by Article 91 of the Code of Criminal Procedure of the Russian Federation, the body of the inquiry, the investigator, the investigator to the person suspected of committing a crime for which he could be punished in the form of imprisonment;

2) Preventive measures - a group of seven measures of procedural coercion, each of which, in the presence of sufficient grounds provided for by Article 97 of the Code of Criminal Procedure, have the right to apply to the accused, and in exceptional cases to the suspect - the investigator, and the court.

3) other measures of procedural coercion - a group that unites five measures of procedural coercion, which the investigator, the investigator or the court is entitled to apply to the suspect, accused, the victim, a witness and some other participants in order to ensure the procedure for criminal proceedings or the proper execution of the sentence.

From the above classification, it can be seen that proceeding measures are different in their nature. This is due to the fact that their use pursues unequal targets. The general is that they are all in one way or another can limit the constitutional rights and freedoms of citizens.

Russian criminal procedure legislation contains procedural guarantees that ensure the legality of the application of proceeding measures. They are:

1. application of measures of procedural coercion only on the initiated criminal cases, if there are grounds provided for by the law and only before the sentence entry or another decision of the court into legal force;
2. an exhaustive circle of participants in criminal proceedings to which these measures can be applied, as well as bodies and officials authorized on their application;
3. the establishment of a clear procedural procedure for the application of each measure of procedural coercion;
4. any person who was illegally subjected to measures of procedural coercion during the criminal proceedings has the right to compensation for harm in rehabilitation (Part 3 of Article 133 of the Code of Criminal Procedure).

Thus, procedural coercive measures can be defined as the procedural means of a compulsory process provided by the law, which includes the detention of the suspect, the preventive measure and other measures of procedural coercion, which the body of the inquiry, the investigator, the investigator, as well as the court, is raised within its powers to apply to a suspect, accused and other participants of criminal proceedings in the presence of grounds provided for by the Code of Criminal Procedure, in order to prevent or suppress them illegal action.

Completing this issue must be emphasized that proceeding measures are the most important institution of criminal proceedings. The decision on their application at the pre-trial stages is entitled to take the investigator, investigator or court, and during litigation Only court. However, none of them must do this.

And, last. Measures of procedural coercion are not a kind of criminal penalties and are not applied to the convicts.

Detention of suspect

According to Article 56 of the Criminal Code, the deprivation of liberty is to isolation of the convicted of society by sending it to the colony-settlement, the premises in the educational colony, the medical correctional institution, a correctional colony of a common, strict or special regime or imprisoned.

This punishment is established by the court for a period of 2 months to 20 years. In the case of partial or complete addition of the deadlines of imprisonment when prescribing punishments for the combination of crimes maximum time In deprivation of liberty cannot be more than 25 years old, but for the aggregate of sentences - more than 30 years. In the previously operating criminal procedure legislation, there was no such restriction for the detention of the suspect, because It had the status of an urgent investigative action (Part 1 of Article 119 of the Criminal Procedure of the RSFSR), and not the measures of procedural coercion, as it is now.

In the current legislation of the foundation and the procedure for detention of the suspect, Ch.12 of the Code of Criminal Procedure of the Russian Federation is regulated (Article 91 - 96 of the Code of Criminal Procedure). Its essence - in short-term isolation of a person suspected of committing a crime, to clarify the validity of suspiciousness.

The decision on the detention of the suspect is entitled to take only three participants in criminal proceedings - this is the organ of inquiry, the investigator, the investigator. But for this requires good grounds. Among them, the law calls the following:

1. when this face is caught in the crime or immediately after its commit;
2. when the victims or eyewitnesses will indicate this personas for the committed crime;
3. when on this face or his clothes, with him or in his dwelling, explicit traces of the crime will be discovered.

If there are other data that gives reason to suspect a crime person, it can be detained in the following four cases:

1. if this face was trying to hide;
2. if this person does not have a permanent place of residence;
3. if the identity of this person is not established;
4. if the investigator with the consent of the head of the investigating body or the investigator with the consent of the prosecutor to the court aims to the election of the preventive measure in the form of detention (Part 2 of Article 91 of the Code of Criminal Procedure of the Russian Federation).

Listed in the law of the basis of the detention of the suspect may occur only in the presence of sufficient data indicating signs of a crime.

In other words, if there are grounds for the detention of the suspect, it cannot but be grounds for initiating a criminal case. And since the procedure under consideration of procedural coercion can be applied only after the initiation of a criminal case, then the implementation of the Supper Detention is always preceded by the decision to initiate a criminal case. Thus, if there are no sufficient data indicating the signs of a crime, then the grounds for detention will also be absent.

Procedurealists in their writings correctly note that the basis for initiating a criminal case is always detected earlier than the basis for the detention of the suspect, as a last resort, they may appear simultaneously. For this reason, the proposals concerning the establishment of the detention of a suspect before making a decision on the initiation of a criminal case were and remain untenable.

The procedure for detentions and the content of the suspect, as well as its rights settled in detail by law.

So, after his delivered to the body of inquiry or to the investigator, the person who decided to apply this measure of procedural coercion should be made by the following actions:

1. the suspect should be clarified the essence of the suspicion and its rights provided for by Article 46 of the Code of Criminal Procedure;
2. for no more than 3 hours, the detention protocol must be compiled, a copy of which is awarded suspected;
3. about the detainment of an inquiry authority, the investigator or investigator is obliged to inform the prosecutor in writing Within 12 hours from the moment of detention of the suspect;
4. the suspect must be interrogated in accordance with the requirements of Part 2 of Article 46, Article 198 and 190 of the Code of Criminal Procedure (they are regulated by the authority of the suspect, as well as general rules interrogation and procedure for compiling the protocol of this investigative action);
5. if in relation to the suspect, detained in the manner prescribed by Article.91 and 92 of the Code of Criminal Procedure of the Russian Federation, a petition for imprisonment is initiated, the judge and materials should be submitted to it no later than 8 hours before the expiration of the term Detention (Part 3 of Article 108 of the Code of Criminal Procedure).

So, immediately after the detention, authorized to adopt this decision, the official is obliged to clarify the suspect that in accordance with Article 46 of the Code of Criminal Procedure, it has the right:

1. know what he suspected and get a copy of the decision to initiate criminal proceedings against him, or a copy of the detention protocol, or a copy of the decision to apply the preventive measure to it;
2. give explanations and testimony about the suspicion existing ones or to refuse to give explanations and testimony;
3. use the help of the defender from the moment of paragraph 2 and 31 part 3 of Article 49 of the Code of Criminal Procedure of the Russian Federation, and to have a date with it alone and confidentially until the first interrogation of the suspect;
4. submit evidence;
5. claim petitions and taps;
6. give readings and explanations in their native language or language to which he owns;
7. use the help of the translator for free;
8. get acquainted with the protocols of the investigative actions made with his participation, and apply comments on them;
9. participate with the permission of the investigator or the investigator in investigative actions produced by his petition, his defender or legal representative;
10. bring complaints against actions (inaction) and court decision, prosecutor, investigator and the investigator;
11. to defend themselves with other means and methods not prohibited by the Code of Criminal Procedure.

On clarification of suspected of his rights should be made in the protocol, which should be drawn up within 3 hours after delivering the suspect in the body of the inquiry or to the investigator.

The protocol also indicates:

• date and time of its preparation;
• date, place, grounds and motives of the detention of the suspect;
• data on his personality;
• the results of his personal search and other circumstances of the detention.

The detention protocol is signed by the face, and the suspects. After that, the prosecutor must be notified for 12 hours of the detention. Moreover, the law provided only the written form of such notice.

In addition, guided by Article 96 of the Code of Criminal Procedure, the investigator or investigator in the same period of detention is obliged to notify any of the close relatives, and in their absence of other relatives or provide an opportunity for such a notification to the suspect.

If a suspect is a citizen or a subject of another state, the Embassy or Consulate of this state is notified of his detention. If the delayed suspect is a military personnel, then this is notified by the command of the military unit, in which he undergoes service, and in case of detention of the employee of the internal affairs authority, the head of the authority in which the service of the specified employee is being held. With the detention of a suspect, which is a member of a public observational commission formed in accordance with the legislation Russian FederationFor 12 hours this is notified by the secretary Public Chamber The Russian Federation and the relevant Public Supervisory Commission (Part 2 of Article 96 of the Code of Criminal Procedure).

If necessary, preservation in the interests preliminary investigation In secret, the fact of detention can not be made, except when the suspect is minor, i.e. The face coming to the time of committing a crime was 14 years old, but was not 18 years old (Part 1 of Article 87 of the Criminal Code of the Russian Federation). On the non-disclosure of the fact of the detention of a suspect by the investigator, the investigator with the consent of the prosecutor is made a decision.

If you need to carry out operational search measures, the law allows meetings with a suspected employee of an inquiry authority, carrying out operational investigative activities, with written permission The investigator, investigator or court, in the production of which is a criminal case.

The suspect, detained in the order of Article 91 of the Code of Criminal Procedure, should be interrogated no later than 24 hours from the moment of its actual detention, i.e. Since its insertion, established by the Code of Criminal Procedure of the Russian Federation, the actual deprivation of freedom of movement of a person suspected of committing a crime (paragraph 15 of Article 5 of the Code of Criminal Procedure of the Russian Federation).

Before the interrogation began to be suspected, at his request, a date with a defender alone and confidentially, i.e. In the conditions that allow an employee of the place of detention to see, but do not hear them.

If it is necessary to produce procedural actions with the participation of the suspect, the duration of a date of more than 2 hours can be limited to the investigator, the investigator, but with a mandatory preliminary notification of this and the suspect, and its defender.

With the consent of the suspect, give readings, it must be warned that its testimony can be used as evidence in a criminal case, incl. With his subsequent refusal of these testimony.

The exception of this rule is only the testimony of the suspect (accused) data in the course of pre-trial production in a criminal case in the absence of a defender (including cases of refusal to defender), and not confirmed by suspect (accused) in court, because The law they attributed to unacceptable evidence (paragraph 1 of Part 2 of Article 75 of the Code of Criminal Procedure).

According to the results of the interrogation of the suspect, the protocol is drawn up. It should be reflected in it:

• place and date of its compilation;
• start and end time interrogation;
• who and whose participation was interrogated;
• data on interrogated and documents confirming his identity;
• information on the use of technical means;
• the fact of clarification of the suspected rights provided for in Part 4 of Article 46 of the Code of Criminal Procedure of the Russian Federation (including his rights that he is not obliged to testify against himself, his spouse (his wife) and other close relatives, the circle of which is defined in .4 of Art. 5 of the Code of Criminal Procedure).

In addition, in this protocol, it should be fixed that the suspect was announced, in the commission of which crime he is suspected, and what article (articles) of the Criminal Code of the Russian Federation is provided. The following is the testimony of the suspect (from the first person and, if possible, literally), the questions set by him and answers to them, and then comments received from the participants of this investigative action.

After familiarizing the suspect and other participants in investigative action with the protocol, it is signed by them.

The law (Article 93 of the Code of Criminal Procedure of the Russian Federation) allows you to expose the suspect by a personal search, which is made in the manner prescribed by Article 184 of the Code of Criminal Procedure.

The basis for its production is the presence of sufficient data to believe that the suspect may have a crime tools, subjects, documents and values \u200b\u200bthat may be important for a criminal case. Moreover, when detaining a face, a search can be made without the appropriate ruling, but only the face of one sex with the searched and in the presence of witnesses, a specialist of the same sex, if he participates in this investigative action. Information relating to the search of the suspect is reflected in the protocol of its detention.

The procedure and conditions for the detention of suspected detention are determined by the Federal Law "On the detention suspected and accused of committing crimes" of July 15, 1995 No. 103-FZ.

In place of their content in it are called detention facilities Federal Service The execution of the penalties of the Ministry of Justice of the Russian Federation and the Federal Security Service of the Russian Federation (from January 1, 2006, they were transferred to the initial executive system), as well as insulators of the temporary detention of suspects and accused of the internal affairs borders and border troops of the Federal Security Service of the Russian Federation.

Without stopping further on the consideration of the provisions of this Law, we note that in accordance with the Constitution of the Russian Federation, the principles and regulations of international law, as well as international treaties of the Russian Federation, the content of suspects and accused are not accompanied by torture, other actions that have the goal of causing physical or moral actions. suffering. It should be carried out in accordance with the principles of legality, the equality of all citizens before the law, humanism and respect for human dignity.

If a definition of a court decision was made to satisfy the application of the investigator or an investigator on election on a suspect preventive measure in the form of detention, then its copy is issued to a suspect when exemption.

In addition, when the suspect is released from custody, it is issued a certificate that indicates:

• who he was detained;
• date, time, place and foundation of detention;
• date, time and foundation of liberation.

It must necessarily be affected by the organ stamp, which made the liberation of the suspect.

Preventive measure

Preventive measures are seven measures of procedural coercion provided for Code of Criminal Procedure, one of which, if there are sufficient grounds, the investigator, the investigator or the court is entitled to elect the accused, and in exceptional cases a suspect, in order to temporarily restrict its rights and freedoms. The procedure for their application is regulated by GL.13 of the Code of Criminal Procedure (T.T.97 - 110 of the Code of Criminal Procedure). It also provides an exhaustive list of preventive measures. They are:

1. subscribe to the unprotence and proper behavior (Article 102 of the Code of Criminal Procedure);
2. personal guarantee (Article 103 of the Code of Criminal Procedure);
3. observation of the command of the military unit (Article 104 of the Code of Criminal Procedure);
4. listen to minors suspected or accused (Article 105 of the Code of Criminal Procedure);
5. pledge (Article 106 of the Code of Criminal Procedure);
6. home arrest (Article 107 of the Code of Criminal Procedure);
7. conclusion in custody (Article 108 and 109 of the Code of Criminal Procedure).

The next preventive measure is personal guarantee. It consists in a written commitment of a trustworthy person that it swings for the execution of suspected or accused of the following two obligations:

1. at the appointed time to be on the challenges of the investigator, the investigator and to the court;

We draw attention to the fact that the legislator does not call the criteria for which the investigator, the investigator or court should determine the proposed guarantor of trust or not. But they are very important.

Since the person who chooses this measure of restraint must be confident in the conscientiousness and sincerity of the intention of the guarantor, and he, in turn, is that it will be able to ensure the proper behavior of who hears.

The criteria of trust, in our opinion, should be quite certain requirements for the guarantor, enshrined in the relevant norm of the Criminal Procedure Law. But do not assume, but excluding the possibility of his participation in the case in this capacity. It seems that by analogy with the requirements imposed on the jury and candidates for jury, the guarantor in criminal proceedings should not be a citizen:

1. not reached the age of 25 years;
2. having not removed or not redeemed;
3. decisible incapable or limited in legal capacity;
4. consisting in a narcological or psychoneurological dispensary in connection with the treatment of alcoholism, drug addiction, toxicizing, chronic and protracted mental disorders.

We believe that as deserving persons confidence in this case, persons suspected and accused of committing crimes who do not speak the language on which legal proceedings are conducted, as well as having physical or mental disadvantages that prevent responsibility adoption.

In accordance with Article 103 of the Code of Criminal Procedure, the election of personal guarantee as a preventive measure is allowed upon a written petition of one or several guarantors, and with the consent of the person in respect of which the guarantee is given.

The guarantor explains the essence of suspicion or charges, as well as his duties and responsibilities associated with the implementation of personal guarantee. So, in case of failure to comply with the guarantor of its obligations, a monetary penalty may be imposed on it in the amount of up to 10 thousand rubles in the manner established by Article 118 of the Code of Criminal Procedure. At the same time, the guarantor may for good reason to abandon the behavior taken. In this case, if it is impossible to replace it, another preventive measure is elected.

As follows from the above legislative provisions, personal guarantee has not only significant differences, but also a certain similarity with a subscription on the unprit and appropriate behavior. So, for example, in the other case a written obligation is drawn up. However, when electing personal guarantee, it is not taken from a suspected or accused, but on a person who deserves confidence. And all, for which he swore, suggests the subscription of the wrong season. But in personal guarantee obligations are mediated, because The guarantor does not behave for itself, and for the face, in the outcome of the criminal case of which he showed interest. In addition, the legislator does not force the guarantor to undertake a commitment to the fact that the person for which he swore will not leave a constant or temporary place of residence without the permission of the investigator, investigator or court. And finally, the use of personal guarantee is possible only with the consent of the person in respect of which it is given. While it is not required for applying a subscription to a non-recognition.

However, personal guarantee is not the only preventive measure, which requires to enlist the consent of the suspect or the accused. It is necessary and in the case of applied by the investigator, investigator or the court of observing the command of the military unit. At the same time, the consent of the very command of the military unit on the use of this preventive measure is not required. It only should be informed about its election.

The use of this preventive measure has another specificity. In very general It comes down to the fact that far from every suspect and the accused it can be applied. To make a question about the use of this preventive measure, each of them, at least, should have the most direct attitude towards the Russian armed forces, i.e. Be a military personnel or citizen passing military fees.

Accordingly, the means to ensure the fulfillment of obligations related to this measure, military statutes are named in criminal procedure legislation.

Expressing more precisely, the observation of the command of the military unit for a suspected or accused, which is a military personnel or a citizen passing military fees, is to take measures stipulated by the charters of the Armed Forces of the Russian Federation (for example, it may be defeated rights Weapon wearing, not to be involved in the carrier of the guard service and the economic work in single order, etc.) 264, in order to ensure that this person follows the following two obligations:

1. at the appointed time to be on the challenges of the investigator, the investigator and to court.
2. in other way, do not prevent the production of criminal proceedings.

However, the election of this preventive measure is allowed only with the consent of the suspect accused.

The Decree on the election of the preventive measure was sent to the command of the military unit, which explains the essence of suspicion or charges and its obligations to execute this measure of procedural coercion.

If the suspected accused of actions is made, to prevent which this preventive measure was elected, the command of the military unit is obliged to immediately inform about it in the body that has chosen the preventive measure.

In addition to observing the command of the military unit, another preventive measure has been named in the Code of Criminal Procedure, which has an equally limited scope of application. She is named leaving for minor suspect or accused and is to ensure its proper behavior by parents, guardians, trustees or other trustworthy persons, as well as officials of a specialized children's institution, in which it is, what these persons give a written obligation.

They undertake to the fact that a minor:

1. will not leave the permanent residence without the permission of the investigator, investigator or court;
2. will be on the appointed time call to the investigator, the investigator and the court;
3. will not otherwise impede the production of criminal proceedings.

It is obvious that this obligation has a complete similarity with the obligation taken by electing a subscription on the unprison and appropriate behavior. With the only difference that, in case of returning a minor under the supervision, it takes upon himself no suspect or accused, but those responsible for him, or a specialized institution. It is them, the investigator, the investigator or the court are obliged to clarify the essence of suspicion or accusations, as well as their responsibility for non-compliance with the supervision duties, because in this case, a monetary penalty in the amount of up to 10 thousand rubles may be applied, in order established by Article 118 of the Code of Criminal Procedure of the Russian Federation.

The next measure of preventing the law is called a pledge. It can be elected at any time of production in a criminal case and consists in making or transmitting a suspect, accused or other individual or legal entity at the stage of preliminary investigation into the authority, in the production of which is a criminal case, and at the stage of the court proceedings. and movable property in the form of money, values \u200b\u200band admitted to public applying in the Russian Federation of shares and bonds in order to ensure the appearance of a suspect or accused to the investigator, the investigator or to court, preventing the commitment of new crimes. The law specifically stipulates that it cannot be taken as a deposit of property to which in accordance with Code of Civil Procedure of the Russian Federation cannot be recovery.

Real estateThe promotions and bonds admitted to the public handling in the Russian Federation, values \u200b\u200bcan be taken as departing subject to the provision of genuine copies of documents confirming the ownership of the mortgager to the property transferred to the pledge, and the lack of restrictions (encumbrances) of the rights to such property. In case, in accordance with the legislation of the Russian Federation, restriction (encumbrance) of rights to property is not subject to state registration or accounting, carried out, including depositary or registry holder of securities owners (by the registrar), the pledger in writing confirms the reliability of information on the absence of restrictions (burdensions) of the rights to such property.

The procedure for assessing, the subject matter of the pledge, the management of them and ensure its preservation is determined by the Government of the Russian Federation in accordance with the current legislation.

Pledge as a preventive measure applies to a suspect or accused by the court decision in the manner established by Article 108 of the Code of Criminal Procedure. Apply the suspect, accused or other individual or legal entity to apply for the application of the deposit.

The same application for the application of the deposit is submitted to the court at the place of production of the preliminary investigation. It is imperative to consider by the court along with the petition of the investigator, the investigator on election regarding the same suspect or accused other preventive measure (if it came).

The type and amount of collateral are determined by the court, taking into account the following circumstances:

1. the nature of the crime;
2. the identity of the suspect or the accused;
3. property position of the pledger.

At the same time, in criminal cases of crimes small and middle severity The amount of the deposit cannot be less than 100 thousand rubles, and in criminal cases of grave and especially serious crimes - less than 500 thousand rubles. These sizes appeared in the Code of Criminal Procedure in 2010. Before that, they did not stipulate in law.

The money that is the subject of the pledge is made to the deposit account of the relevant court or body, in the production of which is a criminal case. On the adoption of a pledge by a court or body, in the production of which is a criminal case, a protocol is drawn up, a copy of which is awarded to the pledger. If the deposit is made by a person who is suspected or accused, he explains the essence of suspicion, the accusations, in connection with which this preventive measure is elected, and the obligations associated with it and the consequences of their violation.

In the ruling or determination of the court on the application of pledge as a preventive measure, the court establishes the term of deposit. If the suspect or the accused is detained, the court, subject to the recognition of the detention legitimate and reasonable, extends the detention period before making a deposit, but not more than 72 hours from the moment of judicial decision. If in set time The pledge is not submitted, the court at the petition initiated in accordance with Article 108 of the Code of Criminal Procedure of the Russian Federation, considers the issue of election to a suspect or accused other preventive measure.

If the deposit is applied instead of a previously elected preventive measure, this preventive measure is valid before making a deposit.

In case of violations by suspected or accused obligations related to the deposit, the deposit refers to the state's income on the court decision, which is supposed in accordance with Article 118 of the Code of Criminal Procedure.

When appointing a court session on the appeal of the deposit in the state's income to the court, the accused (suspect) is called, to ensure the existence of which in the inquiry authorities, preliminary investigation Or the court or another person pledged, as well as a citizen or a representative of the Organization, who made a deposit in his interests. Heads are sent to them. The appointment of the court session is notified by the prosecutor. Copies of the judge's resolution, regardless of the nature of the decision taken by the court, are sent to the information to the accused (suspected), mortgager and body that applies to the appeal of the deposit in the state's income. In addition, they are sent to the authority to make a deposit for execution, and tax author For control (when issuing a decision on the appeal of the deposit in the state's income). Production in these cases is considered to be completed after entering the court a copy of the decision to address the collateral in the state of state.

Upon termination of the criminal case, the investigator or the investigator is returned to the pledger, as indicated in the decision on the termination of the criminal case. In other cases, the court under the resolution of the sentence or the determination of either the decision to terminate the criminal case decides on the return of the pledge of the pledger.

The first is a home arrest that appeared in the Russian criminal process for quite a long time. So, for example, according to the charter of criminal proceedings of 1864, it was used: "... to prevent the accused to shy away from the investigation." The possibility of its application was envisaged and the criminal procedural legislation of the RSFSR, which was operating since 1923. It was directly indicated that home arrest is imprisonment, but not in remand insulators, but at home. However, the Criminal Procedure of the RSFSR of 1961 following him, this measure of preventive was no longer provided.

After more than a forty-year break, the home arrest was reanimated and now proposed by the legislator to use. However, until the onset of 2012, Russian criminal procedure legislation did not provide for a clear and uniform procedural mechanism regulating the application of home arrest, did not determine a particular body for which the supervision of compliance with established restrictions would be imposed, leaving this issue at the discretion of the court. Nine years after the entry of the Code of Criminal Procedure, almost all of these shortcomings were eliminated. Thus, there are currently clearly defined methods and methods for controlling the accused (suspected), which are under house arrest, many issues relating to its livelihoods during the isolation period at home are also settled.

EXCRESS EXCHANGE DEDICATED TO ST.107 of the Code of Criminal Procedure, which has been established that home arrest as a preventive measure is elected for a court decision against a suspect or accused with the impossibility of using other, softer, preventive measures and is to find a suspect or accused in full or partial Isolation from society in the residential premises, in which he lives as a owner, the employer either on other legal grounds, with the imposition of restrictions and (or) prohibitions and the implementation of controls. Taking into account the health status of the suspect or the accused place of its content under house arrest, a therapeutic institution may be determined.

Home arrest is elected for up to 2 months. It is calculated from the moment the decision makes the decision on the election of this preventive measure. If it is impossible to complete a preliminary investigation of up to 2 months, and in the absence of grounds for changing or canceling this preventive measure, this period may be extended by the court decision in the manner established by Article 109 of the Code of Criminal Procedure, but taking into account the characteristics defined Article 107 of the Code of Criminal Procedure. Election of this measure of restraint in relation to persons under the age of 18, the courts should pay special attention to their age, living conditions and education, features of the personality, the influence of the elders in the age of persons (including their legal representatives) 270.

Having considered the petition for the election of a preventive measure in the form of a home arrest, the judge makes one of the following regulations:

1. on election against a suspected or accused measure of preventing in the form of house arrest;
2. on refusal to satisfy the petition.

In the latter case, the judge on his own initiative, if there is reason to be the right to choose to the suspect or the accused measure of restraint in the form of a pledge.

Adopted at the preliminary investigation stage, the decision to use as a measure of curbing a pledge or home arrest regarding the suspect, according to the provisions of Article 100 of the Code of Criminal Procedure, there is no more than 10 days. If the prosecution will be charged within the specified period, the selected preventive measure continues to operate throughout the preliminary investigation and finding a criminal case at the prosecutor with an indictment, as well as in court when considering the case.

The judge's decision is directed to the person who aroused the petition, the prosecutor controlling the authority at the place of serving his home arrest, suspected or accused and subject to immediate execution.

The court, taking into account data on the identity of the suspect or accused and actual circumstances, when electioning a home arrest, maybe it may prohibit and (or) to limit:

1. exit outside the residential premises in which he lives;
2. communication with certain persons;
3. sending and receiving postal-telegraph shipments;
4. use of communication tools (i.e., technical and software used for forming, receiving, processing, storage, transmission, delivery, telecommunication messages or mailing, as well as other technical or software tools used in the provision of communication services or to ensure network operation Communication) and information and telecommunication network "Internet".

At the same time, the suspect or accused cannot be limited in the right use of the telephone to call the ambulance medical care, law enforcement officers, emergency rescue services in the event of emergency, as well as to communicate with the controlling body, the investigator, with the investigator. About every such call he is obliged to inform the control body.

Depending on the severity of the charges and actual circumstances, the suspect or the accused may be subjected to a court as all the above prohibitions and (or) restrictions and some of them. Subsequently, these restrictions can be changed by the court at the request of the suspect or the accused, his defender, legal representative, as well as the investigator or the investigator, in the production of which is a criminal case.

The following conditions for the execution of this preventive measure must be indicated in the decision of the preventive measure in the form of a home arrest.

1. a place in which a suspect or accused will be;
2. home arrest;
3. the time during which the suspect or accused is allowed to be outside the place of execution of a preventive measure in the form of home arrest;
4. prohibitions and (or) restrictions established for a suspect or accused;
5. the places that he is allowed to visit.

Control over the suspect or accused at the venue of the preventive measure in the form of house arrest and for compliance with the prohibitions imposed by the court and (or) restrictions are carried out by the federal executive body, carrying out law enforcement functions, functions to control and oversight in the field of criminal penalties against convicts . For these purposes, they can be used audiovisual, electronic and other technical means Control, list and procedure for the application of which are determined by the Government of the Russian Federation.

Meetings of a suspect or accused under house arrest in full isolation from society, with a defender and legal representative undergo in the place of execution of this preventive measure. In the inquiry or preliminary investigation body, as well as a suspect or accused in such cases is delivered vehicle controlling authority.

If, according to medical reasons, the suspect or the accused was taken to the health care institution and hospitalized, then before permission to the court of a change or cancellation of the preventive measure, the prohibitions established by the court and (or) restrictions were continued. In such cases, the place of execution of this preventive measure is considered the territory of the relevant health care institution.

In the event of a violation by suspected or accused the conditions of execution of this preventive measure, the investigator is entitled to submit a petition for its change. If the violation of such conditions was allowed after the appointment of the trial, then this preventive measure can be changed on the representation of the controlling authority.

The last and most severe preventive measure having some similarity with home arrest is the detention. It applies to a court decision against the suspect or accused of committing crimes, for which the criminal law is punishable in the form of imprisonment for a period of more than 2 years and only if it is impossible to use other, softer, preventive measures.

With regard to a suspect or accused of committing a crime, for which the sentence is provided in the form of imprisonment to 2 years, this preventive measure can be elected only in exceptional cases, and, if there are one of the following circumstances:

1. when he does not have a permanent residence on the territory of the Russian Federation (the absence of a suspect or accused registration on its territory can serve only one of the proof of the absence of a permanent place of residence, but in itself is not provided for by paragraph 1 of Part 1 of Article 108 Code of Criminal Procedure The circumstance giving the basis for election in relation to such a person a preventive measure in the form of imprisonment) 273;
2. when his personality is not established (the absence of a suspect or accused identity documents cannot actually serve as a basis for refusing to satisfy the petition) 274;
3. when they have been violated a previously elected preventive measure;
4. when he disappeared from the preliminary investigation authorities or from the court (Part 1 of Article 108 of the Code of Criminal Procedure).

In several cases specially stipulated by law, the scope of application of this preventive measure has a number of significant limitations.

So, in particular, the detention can not be applied to a suspect or accused of committing crimes envisaged by Article 159 (fraud), 160 (assignment or waste), 165 (causing property damage by deception or abuse of confidence) The Russian Federation, if these crimes are committed in the field of business activities, as well as if the person is suspected or accused of crimes in the field of economics (total, about 30 compounds) 275, in the absence of the circumstances specified in paragraph 1 - 4 Part 1 .108 of the Code of Criminal Procedure (i.e., when the suspect or accused does not have a permanent residence in the territory of the Russian Federation; when his personality is not established; when they have been violated a previously elected preventive measure; when he disappeared from the preliminary investigation authorities or from the court).

Crimes envisaged by Article 159, 160 and 165 of the Criminal Code of the Russian Federation are considered perfect in the field business activitiesIf they are committed by entrepreneurial activities or participating in business activities, these crimes are directly related to this activity. In solving the question of whether the entrepreneurial activity is whether the courts should proceed from the fact that entrepreneurial is an independent, activities carried out to the systematic profit from the use of the property, sales of goods, work, or providing services to persons, Registered in this capacity in accordance with the procedure established by law (paragraph 1 of Article 2 of the Civil Code of the Russian Federation) 276.

To a minor suspected or accused, detention can be applied if he is suspected or accused of committing a grave or particularly serious crime. With his suspicion or accusation of a cross-gravity crime, this preventive measure can be elected only in exceptional cases (part 2 of Article 108 of the Code of Criminal Procedure). In addition to minors, the courts are obliged to pay special attention to the use of preventive measure in the form of detention against women with minor children.

To address the issue of detention of a person suspected or accused of committing a crime, the court is obliged to establish in each particular case, whether there are other circumstances, except those indicated in Part 1 of Article 108 of the Code of Criminal Procedure, indicating the need to insulate the person from society. So circumstances may include evidence that the suspect, the accused may hide from the preliminary investigation authorities or the court, falsify evidence, put pressure on the victim, witness, etc.

If it is necessary to elect as a measure of curbing the conclusion, the investigator with the consent of the head of the investigative body, as well as the investigator with the consent of the prosecutor, is initiated by the court to the court. The resolution on the initiation of such a petition is the motives and grounds that are confirmed by the need to enter into custody, as well as the impossibility of election of another, softer preventive measure. If the petition is initiated against the suspect, detained in the manner prescribed by Article.91 and 92 of the Code of Criminal Procedure, the decision together with the relevant materials should be submitted to the judge no later than 8 hours before the expiration of the detention period.

To the petition for election of preventive measure in the form of detention should be attached:

1. copies of decisions on the initiation of criminal case and attracting a person as an accused;
2. copies of the detention protocols and interrogations of the suspect, the accused;
3. available in evidence confirming the presence of circumstances indicating the need to elect a preventive measure in the form of detention (information about the personality of the suspect, accused, certificates of criminal record, data on the possibility of a person to escape from the investigation, about threats to the victims, witnesses and t .P.).

In accordance with Part 2 of Article 108 of the Code of Criminal Procedure, the acquaintance of the suspect, the accused and his defender with all materials should be completed within 8 hours from the date of their arrival in court. However, in practice, this is not always possible (as a rule, due to their large volume). Therefore, if, when solving the issue of applied to a suspected, accused or defendant measures of curbing in the form of imprisonment or to extend the detention period, a petition for familiarization with materials will be announced on the basis of which the decision is made, judge, based on constitutional norms, It is entitled to refuse to suspect or accused, as well as their defenders, legal representatives and victims to satisfy such a petition. Familiarization with these materials is made within a reasonable time frame, but within the period established by law, for consideration by the court of an appropriate application for the use of preventive measures to a suspect or accused.

Thus, the decision to initiate a request for the election of preventive measures in the form of imprisonment and substantiating materials to be considered solely the judge of the district court or the military court of the appropriate level at the place of production of the preliminary investigation or at the place of detention of the accused for 8 hours Since their arrival in court. The court session on this occasion is happening with the obligatory participation of the suspect or the accused, the prosecutor, as well as the defender, if he participates in a criminal case. At the court hearing, the head of the investigative body, the investigator or the investigator is also entitled.

When the solution to the issue of measure of curbing rights and legal interests The victim (including those associated with the need to protect his personal safety from the threats from the suspect, accused or ensure the compensation caused by the crime of material damage), he, his representative, the legal representative is not only entitled to bring to the attention of the preliminary investigation authorities, the prosecutor and the court Its position relative to the election, extension, changes, the abolition of one or another preventive measure against a suspect or the accused, but also appeal the decision taken by the court.

Considering such a petition, the judge is not entitled to enter into a discussion of the question of the guilt of the face in the crime incriminated to him. At the same time, when considering the application for the application as a measure of curbing the detention (as well as the extension of its term) in each case, he should discuss the possibility of applying to a suspect, accused of other, not related to custody, measures Preventive.

For example, if the selected preventive measure will be a deposit, then when it is submitted to the Court's deposit account, the suspect, the accused is immediately exempt from custody, which the judge makes a decision in the manner prescribed by Article 108 of the Code of Criminal Procedure. If the deposit is not submitted for 48 hours from the time of detention of the suspect, the accused, the judge, based on the meaning of paragraph 3 of China, Article 108 of the Code of Criminal Procedure of the Russian Federation, has the right to extend the consideration of the application for the application to the suspect, accused of preventing measures in the form of a suspect Conclusions in custody or pledge for 72 hours. In case of non-submission of collateral within the period specified in the court decision, the judge in the prescribed manner considers the application of the investigator or the investigator on the application to the suspect, the accused measure of the preventiveness in the form of detention.

If the court is elected by the court as a preventive measure when considering a petition for the extension of the detention period, the Court establishes the type and amount of the collateral. At the same time, the court indicates the period for which the effect of the preventive measure in the form of detention in the event that the deposit is not submitted.

Non-idle good reasons Parties, in a timely notified of the time of the court session, is not an obstacle to the court for consideration by the Court of Condition, except for the failure to appear the suspect, the accused.

If it is impossible to consider the decision on the initiation of a petition for the application for a suspect, the accused preventive measure in the form of imprisonment and decision on the essence, due to the lack of it in court, the judge returns the specified petition to the investigator, the investigator without consideration, which is releges a decision. The return for this reason for materials confirming the validity of the petition does not prevent the subsequent appeal to the court with such a petition after ensuring the participation of the suspect accused at the court hearing.

In case of detention in the order of Article.91 and 92 of the Code of Criminal Procedure of the Russian Federation, the court for his detention is entitled to consider a petition for the use of preventive measures in the form of detention. However, he should have copies of the decisions on the initiation of a petition for the election of the preventive measure in the form of detention and materials confirming its validity, properly certified by the head of the investigating body at the place of detention of the suspect or the accused. Further, at the court hearing, the participation of the representative of the investigative body, which were certified by the documents received.

The adoption of a court decision on the election of a preventive measure in the form of detention in the absence of the accused is allowed only if it is declared international wanted list (Part 5 of Article 108 of the Code of Criminal Procedure of the Russian Federation). At the same time, the judge is obliged to provide compulsory participation in the court hearing of the defender of the accused.

Having considered an excited petition, the judge makes one of the following regulations:

1. on election against a suspected or accused measure of the preventiveness in the form of detention;
2. on refusal to satisfy the petition (in this case, the suspect or the accused is subject to immediate release from custody, regardless of the expiration of 48 hours from the date of detention);
3. on the extension of the detention period (the adoption of this decision is allowed to be recognized by the court of detention legitimate and substantiated for a period not more than 72 hours from the moment of a court decision on the application of one of the parties to submit additional evidence of the validity or unreasonable preventive measure in the form of imprisonment).

The rendered decision is subject to immediate execution, and its copies are sent by the official who aroused the petition, as well as the prosecutor and a suspect or accused. The decision of the decision on the application as a measure of curbing the conclusion of detention or the extension of its validity period is possible only by the results of the consideration of this issue in the conteffition of the Parties and, when providing participants with legal proceedings, the ability to substantiate their position on the issue under consideration. In the event of an extension of the detention period, the court should indicate not only the date and time to which the detention period is extended, but also concrete circumstances that substantiate its extension, as well as evidence confirming the availability of these circumstances.

If refusing to satisfy the application for election to the suspect or accused, the preventive measure in the form of imprisonment, the judge on his own initiative has the right (if there are grounds provided for by Article 97 of the Code of Criminal Procedure, and taking into account the circumstances referred to in Article 9 of the Code of Criminal Procedure), To elect in relation to a suspect or accused measure of restraint in the form of a pledge or home arrest (Ch.71 Article 108 of the Code of Criminal Procedure). If the custody petition was satisfied, then the judge should indicate concrete circumstances, on the basis of which he accepted such a decision. Moreover, such circumstances cannot be the data that are not proven during the court session, in particular the results of operational investigative activities presented in violation of the requirements of Article 89 of the Code of Criminal Procedure of the Russian Federation.

The investigator, the investigator, in the production of which is a criminal case, is obliged to immediately notify about the place of detention or the change in the place of detention, suspected or accused of someone from his close relatives, with their absence - other relatives. When entering into custody of the serviceman, the command of the military unit is notified. When entering into custody of the person who is a member of the Public Supervisory Commission formed in accordance with the legislation of the Russian Federation, the secretary must be notified of this fact.

Public Chamber of the Russian Federation and the relevant Public Supervisory Commission. When entering into custody, the employee of the internal affairs authority is notified by the head of the body in which the said employee is being held. In the notice of the conclusion of the detention facial should contain information on a specific investigative insulator or temporary insulator.

On the accused, as well as on the suspect contained in custody, the requirements of Article 95 of the Code of Criminal Code of the Russian Federation, in accordance with which the procedure and conditions for its content are determined federal law. In addition, in accordance with part of the second article, if necessary, meeting the employee of the Inquiry authority, which performs operational investigative activities. But they are possible only with the written permission of the investigator, investigator or court, in the production of which is a criminal case.

Re-appealing to the court with a petition for the detention of the same person in the same criminal case after the judge of the decision on the refusal to elect this preventive measure is possible only in the event of new circumstances justifying the need to conclude a person into custody. Moreover, the law is not allowed to impose the powers provided for by Article 108 of the Code of Criminal Procedure, on the same judge on a permanent basis. These powers should be distributed among the judges of each trial, by analogy with the distribution of criminal cases (Part 1 of Article 108 of the Code of Criminal Procedure).

Resolution of the judge on election as a measure to curb the detention or refusal to this may be appealed to appeal Taking into account the peculiarities provided for by Article 389.3 of the Code of Criminal Procedure, within 3 days from the date of its submission. Court appeals instance Deciding on a complaint or representation no later than the 3rd day from the date of their receipt. The decision of the appellate instance on the abolition of the decision of the judge on the election as a measure to curb the detention is subject to immediate execution.

The decision of the appellate court may be appealed in cassation according to the rules established by Chapter 471 of the Code of Criminal Procedure of the Russian Federation.

1. up to 6 months - the judge of the district court or the military court of the appropriate level in the event of the impossibility of completing the preliminary investigation within 2 months and in the absence of grounds for changing or canceling the preventive measure.
2. until the 12 months - the judge of the district court or the military court of an appropriate level regarding persons accused of grave and especially grave crimes, only in cases of the special complexity of the criminal case and in the presence of grounds for the election of this preventive measure at the request of the investigator made with the consent The head of the relevant investigative body on the subject of the Russian Federation, other than those equal to him by the leader of the investigative body or at the request of the investigator in cases provided for in the Code of Code of Criminal Procedure of the Russian Federation, with the consent of the prosecutor of the subject of the Russian Federation or an equivalent military prosecutor.
3. until 18 months - the judge of the subject of the Russian Federation or the military court of the appropriate level at the request of the investigator, made with the consent in accordance with the defendance of the Chair Investigative Committee RF or head of the investigative body of the relevant federal executive authority (with the relevant federal executive body), but only in exceptional cases regarding persons accused of grave and especially grave crimes.

Further extension is not allowed.

The accused, held in custody, is subject to immediate release, except for the case when the judge decided to extend the term of detention until the end of the acquaintance of the accused and his defender with the materials of the criminal case and the direction of the prosecutor's criminal case to the court. However, such an extension is possible, provided that the materials of the criminal case over the investigation were presented with these participants in criminal proceedings no later than 30 days before the end of the deadline for detention.

If, after the end of the preliminary investigation, these deadlines were observed, but 30 days to familiarize themselves with the materials of the criminal case, it was not enough, the investigator with the consent of the head of the investigative body under the subject of the Russian Federation or an equivalent leader of another investigative body is entitled no later than 7 days before the expiration of the limit The term of detention to initiate a petition for the extension of this term. If several accused of centers are involved in the criminal proceedings in the criminal proceedings, and at least one of them was not enough to familiarize themselves with the materials of the criminal case, the investigator is entitled to initiate the specified petition regarding the accused or those defendants that familiarized themselves with the criminal materials Cases, if it did not disappear the need to apply to it or to them detention and there are no grounds for the election of a different preventive measure.

The petition for the extension of the detention period should be submitted to the court at the place of production of the preliminary investigation or the location of the accused in custody no later than 7 days before its expiration. The judge, in turn, decides no later than 5 days from the date of receipt of such a petition. Moreover, in the case of extending the detention periods, it must contain concrete circumstances that justify the extension of these deadlines, as well as evidence confirming the availability of these circumstances.

By general ruleThe consideration of such a petition in the absence of the accused is not allowed. However, Part 1 of Article 109 of the Code of Criminal Procedure of the Russian Federation provides for the possibility of consideration by the court for the extension of the term of the accused in custody in his absence, if the accused is located on a stationary forensic psychiatric examination, as well as in other circumstances, excluding the possibility of its delivered court . To "other circumstances" can be attributed, in particular, the illness of the accused, natural disaster, bad meteo conditions, quarantine at the place of detention and some others. When confirming the circumstances, excluding the possibility of delivering the accused (defendant) to the court, the court may consider such a petition to consider the court.

When permitting petitions for the extension of the term of the accused in custody, the court is obliged to find out the validity of the allegations of the preliminary investigation authorities on the impossibility of the timely end of investigation on objective reasons. If the petition for the extension of the term of detention is initiated before the court repeatedly and based on the need to perform the same investigative actions to which the investigator pointed out (the investigator) in previous applications, then the court should establish for what reasons they were not produced.

If it is revealed that the necessary investigative actions were not made due to the ineffective organization of the preliminary investigation, the Court should respond to the identified violations by making private regulations. In accordance with Part 7 of Article 109 of the Code of Criminal Procedure, the court has the right at the request of the investigator to extend the term of the accused detail before the end of the acquaintance of the accused and their defenders with the materials of the criminal case and the direction of the prosecutor's case, if, after the end of the preliminary investigation, the criminal case was charged with the accused And his defender is no later than 30 days before the end of the deadline for detention established by the Code of Code of the Russian Federation. At the same time, the ruling should be indicated, for which a specific term is extended by detention.

According to paragraph 3 of Art. 5 of the Convention on the Protection of Human Rights and Fundamental Freedoms, each person subjected to arrest or detention has the right to trial during reasonable period or on liberation to court. In accordance with the legal positions of the European Court of Human Rights, when determining the term of the detention period, the period starting from the date of the conclusion of the suspect (accused) is taken into account and ending with the day of the sentencing by the court of the 1st instance.

The presence of a reasonable suspicion is that the person prisoner has committed a crime, is a prerequisite for the legality of the arrest. At the same time, such a suspicion cannot remain the only reason for continuous detention.

There must be other circumstances that could justify the insulation of the face from society. So circumstances, in particular, may include the possibility that the suspect, the accused or the defendant can continue criminal activities, or to escape from the preliminary investigation or a court, or to falsify the evidence in a criminal case, to come into collusion with witnesses. At the same time, these circumstances should be real reasonable, i.e. Affirm with reliable information.

1. the time to which the face was detained as a suspect;
2. home arrest time;
3. the time of compulsory finding in a medical or psychiatric hospital by the court decision;
4. time for which the person was detained on the territory of a foreign state on request on the provision of legal aid or about the issuance of its Russian Federation in accordance with Article 460 of the Code of Criminal Procedure.

After the expiration date of the detention in the case of the Code of Criminal Code of Article 4 of Part 10 of Article 109, and, if necessary, the provision of a preliminary investigation is entitled to extend the term of the detention in the manner established by Article 109 of the Code of Criminal Procedure, but not more than for 6 months. In the event of a re-imprisonment of a suspect or accused by the same criminal case, as well as on the criminal case connected to it or dedicated from it, the term of detention is calculated with the time spent suspected, accused of custody earlier.

In accordance with Article 3 of the Convention on the Protection of Human Rights and the Basic Freedoms and the requirements contained in the Orders of the European Court of Human Rights, the conditions of the detention of the accused of custody should be compatible with respect for human dignity. The degrading appeal is recognized, in particular, such an appeal, which causes a feeling of fear, anxiety and its own inferiority. In this case, the person should not be deprived and suffering to a higher degree than the level of suffering that is inevitable when improving freedom, and the health and well-being of persons must be guaranteed taking into account the practical requirements of the content regime.

This is the existing procedure for the election and application of preventive measures.

In accordance with Article 10 of the Code of Criminal Procedure of the Russian Federation, the preventive measure is canceled when it disappears the need, or changes to a stricter or softer when the grounds have changed to election. In other words, legally significant changes in the grounds provided for by Article 97 and the circumstances provided for in Article 9 of the Code of Criminal Code of the Russian Federation, which were taken into account during its election, are crucial for making a decision on the abolition or change.

For example, a preventive measure in the form of a safety subscription and proper behavior can be changed to a more strict preventive measure, if the investigator became known that the accused left the place of residence without his permission or did not appear on the appointed time call. In another case, the preventive measure in the form of detention can be canceled in connection with the termination of criminal prosecution or changed due to mitigation. The change in the preventive measure is also allowed to ensure the safety of the suspect accused.

A preventive measure in the form of imprisonment is also changing to a softer when identifying a suspect or accused of committing a crime of a serious illness that prevents its detention, and certified by the medical conclusion made according to the results of medical examination.

A severe disease must be certified by the conclusion made by the results of medical examination. The question of the direction of the person on such an examination is considered on the basis of the application (both its own and legal representative or defender) or the petition of the head of the medical unit of the place of detention or therapeutic and preventive institution of the penitentiary system.

The statement and confirmation of medical documents is sent to the person (body), in the production of which is a criminal case or the head of the place of detention. The decision on the direction of examination is accepted during the working day following the day of receiving documents. The person (body) and the head of the place of detention notify each other about it. If there are no medical documents, a decree on a motivated refusal in the direction, which is awarded to the suspect or the accused, his legal representative and defender. It can be appealed. In the event of a certain decision, the direction for examination is issued. Available medical documents are attached.

Examination conducts medical Commission medical organizationdefined by the regional executive authority in the field of health. This is given 5 days. Then concluding about the presence (absence) of the disease or to extend the duration of the inspection due to the need for an additional examination, but not more than 30 working days.

In the case of identifying in accordance with the procedure established by Part 1 of Article 10 of the Code of Criminal Procedure, a suspect or accused of committing a crime of a serious illness that prevents its detention and certified by the medical conclusion made by the results of medical examination, copies of medical report are sent by the head of the place of content under Guardians or the person who performs his obligations, a person or to the body, in the production of which is a criminal case suspected or accused of committing a crime and his defender during the calendar day following the day of the receipt of medical detention in the administration of the place of detention.

Cancellation or change of preventive measure is made according to the decree of the investigator, investigator or judge or by definition of the court. They should be reflected: the place and date of drawing up; who issued a resolution (definition); The circumstances of the election of the preventive measure and the basis of its cancellation or change; decision on the abolition or change of a specific preventive measure; Information about the presentation of a copy of this document a suspect, accused and that he was clarified by the procedure for appealing the decision taken. Another copy of this resolution is necessarily directed to the prosecutor. But only if it was carried out by the investigator or investigator.

The preventive measure, chosen during the pre-trial production by the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor, can be canceled or changed only with the consent of these persons.

Other measures of procedural coercion

Other measures of procedural coercion are a group of five such measures, the peculiarity of which is manifested in the possibility of their use by the investigator, investigator or the court not only to a suspect or to the accused, but also to other participants in the criminal proceedings to ensure the procedure for criminal proceedings established by the Code of Criminal Procedure, as well as proper execution of the sentence. The order of their election and application is devoted to Ch.14 of the Code of Criminal Procedure (Article 1211 - 118 of the Code of Criminal Procedure). It establishes that other measures of procedural coercion are:

1. obligation obligation (Article 112 of the Code of Criminal Procedure);
2. drive (Article 113 of the Code of Criminal Procedure);
3. temporary removal from office (Article 114 of the Code of Criminal Procedure);
4. the imposition of arrest on property (st.st.st. and 116 of the Code of Criminal Procedure);
5. monetary recovery (Article 107 and 118 of the Code of Criminal Procedure).

All these measures, with the exception of money recovery, can be applied to a suspect or accused. The monetary recovery, along with the obligation about the appearance and the drive, can be applied to the victim, a witness, civil plaintiff, a civil respondent, an expert, a specialist, a translator, understood, but not to the defender, since its procedural persecution through the use of these measures is fairly considered unacceptable.

Thus, the main differences of measures of procedural coercion from the group under consideration are their moderate severity and a wide, but not distinguished uniformity, the scope of application. For example, in quantitative terms, at least 10 different participants in criminal proceedings can be subjected to the drive and the obligation about the appearance, the monetary recovery - eight, and temporary removal from the post and the imposition of arrest on property only two.

The law on this score is a clear rule that, if there is valid reasons that impede the conviction, the accused, as well as the victim, and the witness immediately notify the authority they were called (part 3 of Article 113 of the Criminal Code of the Russian Federation). Otherwise, each of them can be subjected to a drive.

The drive consists in the compulsory delivery of the suspect, the accused, as well as the victim and the witness to the investigator, the investigator or to court. It is made by the inquiry authorities on the basis of the Resignation Decision, the investigator, as well as the bailiffs - performers to ensure installed order The activities of the courts on the basis of the relevant ruling or determination of the court.

The order of execution of the decision (definition) on the drive is governed by departmental instructions. Moreover, its action is distributed not only to the actuators in criminal cases, but also on admission offenses.

In accordance with the requirements of this instruction, the declaration (definition) of the drive is considering the head of the internal affairs authority or the person performing his duties. It must organize an inspection of information about the person to be driven, as well as take measures to establish its actual location.

In the event that the person specified in the Resolution (Definition) of the drive is located on the territory of servicing another body of the internal affairs, the head who is entrusted with the actuation of the drive, in agreement with its initiator, can take one of the following decisions:

1. on the direction for the execution of the resolution (definition) on the territoriality drive;
2. on the appeal to the higher authority of the internal affairs in order to obtain permission to independently carry out the drive on the territory of servicing another body of the internal affairs with its preliminary notification.

To carry out the drive, the head of the internal affairs body is obliged to allocate an employee or a group (outfit) of police officers, to conduct their instructions, to prevent the decision (definition) of the drive, if necessary, to allocate vehicles and other technical means.

Police officers carrying out the drive must reliably establish the personality of the person being subjected to the drive on the basis of the information available in the decision (definition). Then, the decree of the investigator, the investigator, judges or the court decision on the drive is announced by the person who is exposed to the drive, which must be certified by his signature on the ruling or definition. In case of refusal to sign a person to be driven, a police officer performing a drive, a relevant entry is made in the decision (definition).

By carrying out the drive, police officers should not allow actions to degrade the honor and dignity of the person to be driven. At the same time, they are obliged to exercise professional vigilance, especially when accompanied by a suspect and the accused, in order to eliminate cases of evasion from turning to the place of call or causing themselves or those who surround any harm.

On the execution of the decision (definition) on the drive, the police officer that fell, receives a receipt from the drive initiator with an indication of the execution time. If it is impossible to carry out the drive into the deadlines specified in the decision (definition) on the drive, as well as in the absence of a person to be driven, the head of the internal affairs body immediately informs that the drive initiator indicates the circumstances that prevent the execution of the decision (definition) 299.

As a general rule, the drive can not be made at night, i.e. from 22 to 6 hours local time (paragraph 2 of article 5 of the Code of Criminal Procedure). The exceptions are only cases that do not endure deposits. For example, the need for a drive at night can be dictated by the situation of just a perfect crime or the need to restrict criminal activity.

But this is not the only restriction on the application of the procedure coercion under consideration. In accordance with Part 6 of Article 113 of the Code of Criminal Procedure, the Code of Minors under 14 years old, pregnant women, as well as patients who, as of health, cannot leave the place of their stay, which is subject to a certificate by the doctor.

The next other measure of procedural coercion in the group under consideration is temporary suspension from office. In contrast to the obligation on the appearance and drive, it can only be applied to a suspect, accused, and regardless of whether he is official Or carries out other activities. In other words, if there are grounds, the removal from office can be applied to a fairly wide range of persons, including managers of joint-stock companies, banks, public organizations, parties, charitable and other funds, etc. A feature of this measure of procedural coercion is that it limits the right to freely choose the function of activity and profession. In connection with this law set judicial order Its applications.

So, if you need temporary removal from the post of a suspect or accused, the investigator with the consent of the head of the investigative body, as well as the investigator with the consent of the prosecutor initiates the corresponding petition to the court at the prior investigation. In addition to the mandatory details of the documents of this kind, it sets out the essence of the charges and the founding of temporary removal of the suspect or the accused of office.

Bringing the basis for the application of this process of procedural coercion in investigative and judicial practice causes a certain complexity. This is due to the fact that in Part 1 of Article 114 of the Code of Criminal Procedure of the Russian Federation, the wording is used: "if necessary." But when such a need arises, the law does not explain. At the same time, it provides for the general basis for the application of other measures of procedural coercion. Recall that they are set out in Part 1 of Article 111 of the Code of Criminal Procedure and can be used both in order to ensure the procedure for criminal proceedings and the proper execution of the sentence.

Based on these legislative prescriptions, it is logical to assume that the removal may be applied if there is reason to believe that a suspect or accused, using its official position, may:

1. or continue to engage in criminal activities;
2. or prevent the production of criminal proceedings by:
   • impact on victims, witnesses, other participants in criminal proceedings subordinate to him by service;
   • falsification, destruction of evidence;
3. or prevent the proper execution of the sentence.

The conclusion suggests: the question of the removal of the person from office must be considered at least in the following cases:

1. if the person is brought to criminal liability for a crime committed in an organization in which it carries out powerful or organizational and economic functions, or related to the activities of this organization;
2. if in the case as victims, witnesses accused, suspects participate subordinate to him by the service person;
3. if the side of the attracted person took place attempts to obstruct using their official statement of documentary inspection, audit, judicial accounting examination and other procedural actions.

Preventive measure and removal from office can be applied both simultaneously and consistently, based on the circumstances of the case, including when the preventive measure was elected home arrest or detention. In the latter case, the basis for the removal from office may be, for example, the information that the suspect or the accused, while under the subscription on the unseason, pledge or home arrest, continues to lead the company or, being detained, uses his service provision to continue criminal activities or preventing criminal proceedings.

Consciously with the head of the investigative body of the investigator or coordinated with the prosecutor, the petition of the investigator on the suspension of the suspect, accused of positioning district Court At the place of preliminary investigation. No appearance without valid causes of the parties, timely notified of the time of the court session, is not an obstacle to the consideration of this petition. Participation at the court session of the suspect and the accused in this case is their right, not a duty. The law does not require participation in the court of the investigator, the investigator, but on behalf of the prosecutor or the head of the investigative body, each of them should be in court to substantiate his petition.

Within 48 hours, from the moment of receipt of the petition, the judge makes a decision on temporary removal of the suspect accused of office or a refusal of this. Each of these solutions can be appealed for 10 days from the date of its submission.

In case of satisfaction of the petition, the court should resolve the appointment of the suspect, accused monthly state manual in the amount of 5 minimal wages (minimum wage). Since this manual subsequently refers to the expense of legal costs (paragraph 8 of Part 2 of Article 131 of the Code of Criminal Procedure), the total amount paid to the accused should be reflected in the certificate attached to the indictment.

The decision of the judge on temporary removal of the suspect, accused of positions, is sent at the place of its work either to the superior organization and is subject to immediate execution. The control of this should be carried out by the investigator or the investigator, in the production of which is a criminal case.

The administration of the enterprise, the institutions where the specified decision was sent, is obliged to notify the investigator or the investigator on the removal of the suspect accused of office. The notification is attached to the materials of the criminal case. If necessary, the investigator or the investigator may notify the suspect from the position of the suspect, the accused by those enterprises and financial institutionswith whom he was associated by the nature of his work.

Such an outbreak procedure is distributed to almost all persons exposed to prosecution. The exception is only the case of attracting as an accused (but not suspected) of the Supreme Officer of the Directory of the Russian Federation (the head of the Supreme Executive Body of the State Power of the Directory of the Russian Federation) and the charges of committing a grave or particularly serious crime. With such a coincidence, Prosecutor General The Russian Federation sends the President of the Russian Federation an idea of \u200b\u200btemporary removal of the specified person from office. And the basis for the introduction of this submission is exclusively the fact of the presentation of the accusation of a grave or particularly serious crime. The President of the Russian Federation within 48 hours from the date of receipt of the submission considers it and decides on temporary removal of the said person from office or to refuse this.

Temporary removal from office is a lasting measure of procedural coercion. It is considered to be applied from the moment the decree of the judge. Moreover, the appeal of this decision in cassation does not suspend the action of this force of coercion.

Despite the fact that the law emphasizes the temporary nature of the suspension, the maximum use of this force of coercion is not specified. Temporary character means that the decision on removal from office is not final, it is valid during the preliminary investigation and trial, until the need has not yet disappeared.

During the preliminary investigation, temporary removal of the suspect, accused of post, is canceled on the basis of the decision of the investigator or the investigator, when the need for this measure is due. Its copies should be directed at the place of work of the suspect, the accused, in the financial body to stop paying the benefit, and in some cases - the prosecutor. But before that, a resolution on the abolition of temporary removal from office should necessarily declared a suspect accused of painting.

When deciding the indictment, the court either cancels this measure of coercion, or, if this is provided for by the Criminal Code, appoints the right to hold certain positions or to engage in certain activities as the main or additional punishment. In such cases, the question of the possibility of further work of the accused in the previous position or in other positions is finally permitted in the sentence of the court.

The next other measure of procedural coercion is the imposition of arrest on property. It is preventive and consists in ban, addressed to the owner or property owner, dispose of and to use it, as well as in the seizure of property and transfer it to storage, in order to ensure the execution of the sentence in civil law, other property recovers or possible confiscation of property specified in Part 1 of Article 1041 of the Criminal Code, i.e.:

The arrest on property is made in the presence of the owner or owner (or a person representing it), which is presented to the judge. This includes a protocol, a copy of which is subsequently awarded to the person on whose property is imposed arrest. It lists (described) all arrested property with an accurate indication of the names of items, quantity, measures, weights, the material from which they are made, other individual signs, as well as, if possible, their cost is indicated. The participant of this procedural action may be a specialist. His task is to assist the investigator in determining the cost, measure, weight, individual signs of property, etc. The participation of a specialist is necessary when applying arrest on products from precious metals, on items that have artistic, historical or cultural value, as well as in other similar Cases.

When applying arrest to the suspected, accused money and other values \u200b\u200bon the account, in the deposit or on storage in banks and other credit organizations, the Protocol is drawn up by special form. Operations on this account are terminated in fully or partially within money and other values \u200b\u200bfor which arrest is imposed. The leaders of banks and other credit institutions are obliged to provide information on these cash and other values \u200b\u200bat the request of the court, as well as the investigator or the investigator on the basis of a court decision. The investigator presents a copy of the judge's decision of the relevant organization and warns criminal responsibility According to Article 312 of the Criminal Code of the Russian Federation, for the implementation of banking operations with the cash to which the arrest is imposed. At the same time, they should be explained that banking operations associated with attracting and placement of funds on the account are not prohibited.

The arrested property can be kept under a criminal case or can be transferred at the discretion of the investigator, the investigator for storing the owner of this property, his relative or another person (for example, a representative of the administration of the institution or organization). Seized by the suspect, accused, money and values \u200b\u200bto which arrest is imposed are transferred to storage financial Organs. No later than the next working day, they should be taken to the establishment of the Bank of Russia, credit Organization and enrolled for the current account for accounting of funds entering the temporary disposal of law enforcement agencies. If the arrest is imposed on real estate (house, cottage, other buildings owned), copies of the judge and the protocol are sent to the relevant department of the local administration, which produces the state registration of rights to real estate.

About the arrest produced is also reported notary at the location of the arrested property to eliminate the possibility of making transactions with him.

In other words, the investigator, the investigator must take all measures to preserve property subjected to inventory. If necessary, arrested items are sealed. This fact should also be reflected in the protocol, as well as the fact of the absence of property to be arrested.

The protocol must be indicated where the arrested property will be stored. Persons who said property transferred to storage are warned of criminal liability under Article 312 of the Criminal Code of the Russian Federation for the embezzlement, alienation, illegal transfer to third parties, as well as for concealing the arrested property, which mark is made in the protocol. They are given a copy of this protocol.

In the Code of Criminal Procedure, the features of the procedure for overlaying arrest securities Either their certificates. They relate to the purpose of imposing arrest and describing securities in the relevant protocol. The rest must be observed by the procedure provided for by Art.115 of the Code of Criminal Procedure.

The valuable paper is considered to be a document compiled in compliance with the established form and mandatory details, certifying the property rights, the implementation or transfer of which is possible only when it has been present. The securities include:

• state bond;
• deposit and savings certificates;
• bank savings book on bearer;
• bill of lading;
• stock;
• privatization securities;
• other documents that are laws on securities or in the manner prescribed by the procedure.

Types of rights that are certified by securities mandatory details securities, requirements for the form of security, etc. are determined by law or in the order that they are installed. Moreover, the absence of mandatory details of the security or the inconsistency of the valuable paper established for it shape entails its insignificance (Article 142 - 144 of the Civil Code of the Russian Federation).

As for the certificate, in civil relationships, it can be deposit and savings. Securities of such a species are a written certificate of the Bank on the contribution of funds, certifying the right of the investor to receive an established amount of the deposit amount and interest on it in any establishment of this bank. Both types of certificates can be nominated or for bearer, urgent or demand. Certificate of Security, nothing but a document manufactured by the Issuer (the authority of the executive power, which is given the right to issue securities) and certifying the set of rights to the number of securities specified in it (for example, a certificate of shares certifies the right to possession of persons with a certain number of shares Joint Stock Company).

The purpose of the arrest of securities is either their certificates - ensuring the compensation for the harm caused by the crime and the possible confiscation of the property specified in Part 1 of Article 104.1 of the Criminal Code of the Russian Federation. In this case, the arrest is imposed on the location of the property or at the place of accounting for the rights of the owner of securities, in compliance with the requirements of Article 115 of the Code of Criminal Procedure of the Russian Federation. The exception of this rule is only the securities on the bearer, which are at a conscientious acquirer. They are not subject to arrest. The acquirer who bought securities was considered conscientious and did not know at the time of purchase and could not know about the rights of third parties on them, if otherwise proven.

In Article 116 of the Code of Criminal Procedure, the Code of Criminal Procedure states the imposition of arrest on securities or their certificates. However, when it comes to a certificate certifying the rights to the securities specified in it (for example, a certificate of shares), the arrest must be imposed on both the certificate and the shares themselves owned by the suspect or the accused and vice versa, the shares arrest involves the imposition Arrest to the appropriate certificate. In this regard, the deposit and savings certificates that are securities should also be mentioned. Their owners are paid a certain percentage of deposits.

The decision on the imposition of arrest on securities can be made on the basis of evidence confirming that money or other property invested in securities obtained as a result of a crime or evidence confirming the causation of suspects accused of harm to be reimbursed. The investigator or the investigator that decides on the imposition of arrest on securities and certificates must have a clear idea which papers are valuable. Therefore, the correct application of Article 116 of the Code of Criminal Procedure of the Russian Federation is impossible without knowledge of the foundations of the Russian Federation on the concept and circulation of securities.

So, the security in the most general form is a document certifying a certain property right (the requirements of payment of a certain amount of money, transmission of certain property, etc.). It contains information about the subject and obligated person. The law defines the form and mandatory details of each species of securities. The absence of at least one of these details or violation of the established form entails the insignificance of the security.

Disassemble securities for bearer, personal and order securities. The legislation also provides for the turnover of uncertificatory securities.

So, in the bearer valuable paper, a specific person who owns the rights certified in it is not specified. These rights may make any holder. Examples of securities of this kind are state bonds, bank savings books on bearer, privatization checks (vouchers), etc. When an arrest is applied to securities on the bearer, it is required to establish the fact of their unfair acquisition. Personal securities always contains an indication of a person to whom the rights listed in it belong. The order of the same securities, it provides an opportunity to carry out the right to the right of the person listed in such valuable paper, or at its order (order) to another person assigned to them.

A person with a special license can fix the rights enshrined with a nominal or rational valuable paper in a non-documentary form with the help of electronic computers. Operations with non-documentary securities can only be performed when contacting the person who is authorized to make entries rights. Their provision, transmission and restriction should be officially fixed by this person. At the request of the owner of the right, the person who has fulfilled fixation is obliged to give him a document confirming the fixed right.

In accordance with the law, arrest on securities can be imposed on both the place of their location and the place of accounting for the rights of the owner of securities.

At the same time, the specifics of various types of securities should be taken into account.

Only at the place of finding the arrest is imposed on securities that do not require special accounting of their owner's rights (for example, on checks). Only at the place of accounting of the rights of the owner of the arrest is imposed on non-documentary securities, i.e. Paper, not having a clear documentary confirmation of rights.

However, documentary securities, the rights for which are taken into account, the arrest should be admitted both at the place of their location and at the place of accounting of the owner's rights, i.e. In an organization that has a relevant license. Such an organization may be: Issuer, Depositary, Registrar, Nominal Securities Holder, other organization, which is a professional participant in the securities market. A person who officially makes records of rights should be made a copy of the judge's decision on the imposition of arrest on securities, and he, in turn, is obliged to restrict the rights of the owner of securities by order of them and ensure compliance with this restriction. Along with this investigator (in the investigator), it is necessary to remove the certificate of securities if it is in the organization, as well as the right-expanding documents confirming the ownership of securities. These include:

• extract from the register of owners of registered securities;
• extract from the register of accounting of rights of securities owners;
• extract from the depot account;
• agreement on the acquisition of securities;
• gear disposal; instructions of the depositor's depository;
• certificate of the right to inheritance, etc.

If the securities belonging to the suspect, the accused, are third-party (on storage or for any other reasons), they are also imposed on arrest.

The imposition of arrest on securities is carried out in the presence of witnesses, and its move and the results are recorded in the protocol, where are indicated:

1. the total number of securities to which arrest is imposed, their appearance, category (type) or series;
2. nominal value;
3. state registration number;
4. information about the issuer or persons issued securities or carrying out accounting rights of the owner of securities, as well as the place of accounting;
5. document information certifying the ownership of the securities to which arrest is imposed.

Documents certifying the right of ownership of securities, as a rule, is the name of the right security, an extract from the register of securities owners or from the register of rights to account for securities, an extract from the depot account in the depositary, the Treaty on the acquisition of securities, the certificate of the right to inheritance, etc. At the same time, securities on the bearer, as a rule, do not imply the existence of any documents certifying ownership of them. Therefore, when you apply arrest to such papers, this information is not made in the protocol.

Thus, the above list of information is not mandatory in all cases, since, for example, in certificates of securities or in securities, the bearer may contain not all of interest in the investigation and therefore, they cannot be reflected in the protocol. In turn, information on the issuer or persons issued securities or the accounting rights of the owner of securities, as well as the place of accounting, may be contained in the securities themselves or their certificates. The same information relating to, for example, bills, check, warehouse certificate, bearer securities, can be obtained, respectively, in individuals issued these papers, and information for emission securities is contained in decisions about their release, as well as at the place of accounting on these papers.

In the same connection, it is necessary to pay attention to the fact that the law (paragraph 2 of Part 3 of Article 116 of the Code of Criminal Procedure) provides for the need to indicate in the protocol of the nominal value of the security. However, its value is determined not only (and not so much) nominal, as market value. This circumstance is very important, especially if the arrest is imposed on the purpose of compensation for harm caused by the crime. Accordingly, it is advisable to achieve information about the market value of securities in advance to achieve it, the investigator or the investigator. For example, request the stock exchange data or brokerage company, and then, attach information received from them to the protocol. However, it should be borne in mind that the market value of the arrested securities may change over time. Moreover, essentially. Therefore, by the time of the direction of the criminal case, for its consideration by the 1st instance by the court, this information should be re-requested by the investigator or the investigator.

Analysis of investigative I. judicial practice It indicates that the process of determining the market value of the security, significantly complicates the absence of its appeal to the Stock Exchange. In this case, its market value can be determined by an independent appraiser.

The market value of the property (including the value of shares or other securities of the Company) is the price for which the seller who has full information about the value of the property and not obliged to sell it, I would agree to sell it, and the buyer who has full information about the value of the property and the unnecessary To buy it, I agree to purchase it. So in everyday life, the market value of securities that are not in appeal to the Stock Exchange is actually determined by the agreement between the Seller and the Buyer and is directly dependent on the prices of the securities market.

If the arrest is imposed on the place of storage of the securities and at the place of accounting of the owner's rights, then a separate protocol is drawn up in each place of arresting, a copy of which is awarded to the owner of the securities or the official person of the organization. In any case, a copy of the decree on the imposition of arrest on securities that require special accounting of their owner's rights, and a copy of the protocol should be sent to the Issuer, the holder of the register of securities and the depositary, which, having received these documents, cannot perform operations related to the alienation of valuable Papers.

Since the overlaying of arrest on securities entails the restriction of the rights of their owner (suspected or accused), the organization that carries out the accounting of these rights is obliged to officially fix the restriction on the management of securities and ensure compliance with this limitation.

If the individual signs of the security (certificate) are evidentiary, they must be kept in a criminal case. In all other cases, after overlaying the arrest on securities, the investigator (investigator) is withdrawn and transfers them to keep the owner or to a specialized organization that has an appropriate license.

In the presence of reason, to doubt the reliability of the organization and assume that it will not fulfill the conditions for the arrest of securities, they should be transferred to the storage of another professional participant in the securities market.

The choice for this purpose of a reliable organization is a very difficult task for an official who produces a preliminary investigation.

Inevitable here will be difficulties with obtaining consent to the storage of arrested securities, with the payment of services for their storage, accounting, as well as for maintaining operations with them. The investigator or investigator without any assistance is usually quite difficult to determine which organization the securities to put the most profitable. If, for example, their market value during the investigation will significantly decrease significantly, then this may entail claims to the state from the owner of securities (ie, the victim), which, as a result of inappropriate storage, will not be denied. Therefore, to solve this and such issues, the investigator and the investigator must be resorted to the help of a specialist for the treatment of securities.

The consequences of the imposition of arrest are that the suspect or accused is deprived of the opportunity to dispose of the valuable papers.

However, this does not interfere with the issuer of actions on their repayment, pay income, their conversion or exchange for other securities, if such actions are provided for by the conditions for the issuance of arrested securities or applicable law. Such permission is also aimed at ensuring that their market value does not decrease when storing the arrested securities. The procedure for performing actions to repay securities to which the arrest is imposed, pay income on them, their conversion, exchange or other actions with them is established by the Federal Law (Part 4 of Article 116 of the Code of Criminal Procedure).

For exceptions possible actionsAimed at intentional reducing the value of the arrested property, the investigator (the investigator) must oblige a person who has securities are on storage, report the upcoming operations with them. Moreover, when certain conditions He has the right to disagree with their implementation, since, for example, when converting securities in the reorganization of a legal entity or when converting shares in the form of consolidation, it is almost never possible to avoid reducing their value. Therefore, the investigator or the investigator, receiving a notice of the upcoming operation with arrested securities and before deciding on the possibility of its implementation should consult with a specialist on potential profitability or at least the non-perfection of such an operation. Further, all information on the actions of the securities produced should be fixed in the criminal case materials.

The imposition of arrest on property is canceled on the basis of the decision (definition) of the person (or body), in the production of which is a criminal case, when the need for this measure is needed. One of his copies is awarded to face whose property has been imposed arrest, the other is sent to the prosecutor. At the same time, the property withdrawn by arrest returns to his owner (owner).

The need for further arrest property disappears in the following cases:

1. if the criminal case is terminated;
2. if the harm caused by the crime is completely voluntarily reimbursed in the process of pre-trial production;
3. if the qualification of the charges is changed to the article of the special part of the Criminal Code, the sanction of which does not provide property penalties if the arrest is imposed only to ensure them;
4. if in the investigation process it has not been proven that the property on which the arrest is imposed is acquired by criminal means.

The decision to cancel the imposition of arrest to the property The investigator or the investigator is entitled to accept independently without turning to court.

The last, fifth measure of procedural coercion included by the legislator in the group under consideration is a monetary penalty. It is intended only for the victim, a witness, civil plaintiff, a civilian defendant, an expert, a specialist, translator and (or) understand.

Monetary penalties may be imposed in cases of non-fulfillment by these criminal proceedings of the procedural duties envisaged by the Code of Criminal Procedure, as well as in violation of the order at the court hearing.

Analysis of the practice of applying this procedure procedure indicates that some difficulties cause a circle of persons on which money recovery may not be imposed. This is explained by various approaches to this issue of the authors of scientific publications in special literature. Some of them mistakenly insist that any participant in criminal proceedings may be subjected to monetary recovery (including the judge, the prosecutor, the investigator, the investigator, the lawyer, the accused, suspect). However, the use of this force of coercion to the judge, the prosecutor, the investigator, the investigator, to the head of the investigative body, the head of the division of the inquiry is a violation of legality, because It is they who are endowed with the right to apply other measures of procedural coercion. If one of them does not fulfill their procedural responsibilities, it is subject to disciplinary responsibility. If the violation is not covered by its framework, then the question should be called on the involvement of a particular official to criminal liability. In the same order it is responsible and the lawyer participating in a criminal case as a defender or representative. At the same time, if any of these persons is a victim or witness in a criminal case, then a monetary recovery can be imposed on it as an ordinary participant of legal proceedings.

As for the suspect and the accused, only the obligation to the appearance, the drive, temporary removal from the post and the imposition of arrest on property can be applied as other measures of procedural coercion. Another problem that often arises in practice is to determine the basis of its application.

So, in accordance with Part 2 of Article 111 of the Code of Criminal Procedure of the Russian Federation, monetary recovery can be imposed only in cases of failure to fail, witness, civil plaintiff, a civil defendant, an expert, a specialist, translator or understandable procedural duties, provided for each of them, and in the event of a violation of them about the order at the court hearing. From here, it is logical that procedural responsibilities, for the non-performance of which a monetary penalty may be imposed should be directly provided for by the criminal procedure law.

So, in particular, all the above-mentioned participants of the proceedings (excluding the civil plaintiff) are not entitled to shy away from the calls on the challenges of the investigator, the investigator or to court. Consequently, for non-extent without good reasons for each of them a monetary penalty may be imposed. In addition, on a witness, for example, monetary recovery can be imposed on refusal of examination when it is necessary to assess the reliability of its testimony. On the victim - for evading forensic examinationIf its production is mandatory to establish its mental or physical condition, as well as age. The expert may be subject to money recovery without the knowledge of the investigator, the investigator and the negotiation court with the participants in criminal proceedings on issues related to the production of forensic examination; for independent collecting materials for expert research; For holding without the permission of the investigator, the investigator, the courts of research that may lead to the complete or partial destruction of objects or a change in their appearance or basic properties.

At the same time, such actions as a refusal of testimony, the date of obviously false testimony, knowingly false conclusion or incorrect translation, as well as disclosure of these preliminary investigation, if the participant of the process was pre-warned in advance in accordance with Article 161 of the Code of Criminal Procedure, entail criminal Responsibility and therefore can not serve as the basis for the imposition of money recovery. For a violation of the order at the court hearing, the unsurdiction of orders of the presiding or bailiff, a monetary statement in accordance with Article 117 of the Code of Criminal Procedure of the Russian Federation may be imposed on any person present in the courtroom, which is directly established in Part 1 of Article 258 of the Code of Criminal Procedure. A violation of the order in the courtroom is considered to be actions that indicate disrespect for the court, prevent the judicial proceedings or violate its regulations. It may be noise, croutons, barriers with judge and other participants in the process, arbitrary replicas from the place, inappropriate comments, etc.

The uncleaning of the state prosecutor or the defender orders of the presiding party is not the basis for the imposition of money recovery on them. If such cases occur, this person is replaced by another, and if it is impossible without prejudice to the criminal case, his hearing can be postponed. At the same time, the court reports on the inadequate behavior of these participants in the process to a higher prosecutor or in the lawyer's chamber, respectively.

Monetary recovery is imposed by the court in the manner prescribed by Art.118 of the Code of Criminal Procedure of the Russian Federation. Moreover, if the corresponding violation is allowed during the court session, the penalty is imposed by the court in the court hearing, where this violation was established, which the definition or judgment is made. If the corresponding violation was allowed during pre-trial production, then the investigator, the investigator constitutes a protocol on violation, which is sent to the district court and is subject to the consideration of the judge for 5 days from the moment of its arrival in court. The protocol may be attached documents confirming the fact of the participant in the process of their duties.

IN court hearing A person is called to which monetary penalties can be imposed, and the person who has made a protocol. The non-appearance of the violator without good reasons does not prevent the consideration of the Protocol. According to the results of his consideration, the judge makes a decision on the imposition of money recovery or refusal to impose. A copy of the ruling is sent to the person who has made a protocol, and the person on which a monetary penalty is imposed.

The amount of money recovery varies within up to 2.5 thousand rubles.

If its one-time payment is impossible, the court, when imposing such a recovery, is entitled to delay or install the execution of the decree for up to 3 months. Further, its copy is transmitted for execution in the division bailiffs At the place of residence attracted to the liability of the person, at the place of his work or the location of his property. In the same order, the decision (definition) of the court on the imposition of a monetary recovery or a fine, issued at the court hearing during the consideration of the criminal case, appeals to the execution. The production is considered completed after the voluntary payment of superimposed recovery or upon receipt of a copy of the ruling with the mark of the bailiff on the compulsory recovery.

This is the procedural procedure for the election and application of other measures of procedural coercion.

Installation of certain responsibilities for criminal proceedings on participants in the criminal proceedings and resolving the criminal case, the state expects that they will be conscientiously executed and used. However, it is impossible not to take into account the problems associated with the unscrupulous execution of duties or abuse of rights, which requires the use of funds capable of ensuring the execution of the law. For this purpose, state coercion measures are established.

This is the procedural means of compulsory, applied in the field of criminal proceedings, authorized on that officials and government agencies If there is a basis and in the manner prescribed by law on suspects and other persons, to prevent and suppress the illegal actions of these persons, as well as to successfully investigate and permit criminal proceedings and the appointment of criminal proceedings.

Otherwise: Criminal proceeding measures - Psychological, material, physical and moral impact of criminal prosecution authorities on the behavior of persons participating in a criminal case in order to curb and prevent illegal action.

General for all criminal proceedings are the possibility of their application, regardless of and the desire of a person in respect of which they are carried out, as well as their right-appliance and law-enforcement.

Forcing is expressed in the constraint and restriction of personal, property and other subjective rights . Such restrictions may refer to:

• • inviolability (detention,);
  • freedom of movement (home arrest, subscription of non-weeration and proper behavior);
  • perform rights labor activity (removal from office);
  • the rights to dispose of property (the imposition of arrest on property, etc.).

Signs of criminal proceedings:

1. applied only to persons participating in a criminal case: to the accused, suspected, victim, witness, civil plaintiff, civil respondent, expert, expert, translator and understood, whose inappropriate behavior creates a threat or prevents the successful investigation (permission) of the criminal case;
2. applied only within the framework of criminal proceedings;
3. the right to apply criminal proceeding measures has special subjects (investigators and investigators of the bodies specified in the Criminal Code of Criminal Procedure, as well as the Court);
4. the circle of grounds that enhate the need to use in relation to the person of the measures forced impact is determined by law;
5. The procedure for their use is strictly regulated law.

The law regulates the procedural procedure for applying force measures. They apply to a motivated solution of the respective officials or trial, and the most stringent of them can be applied only on a court decision (detention, home arrest, temporary removal from office and some others).

Types of measures of procedural coercion (in accordance with section IV Code of Criminal Procedure):

1. 1. detention,
   2. preventive measures I.
   3. other measures of procedural coercion.

Alternative division ( in its destination Criminal procedure measures can be divided into measures).

The criminal procedure law provides for the possibility of applying state coercion to citizens who do not perform the requirements of the law. Other warnings of such non-fulfillment are also possible.

They can wear different character: civil law, administrative and legal, criminal law and criminal procedure.

Proceeding measures in criminal proceedings are used during the production period in a criminal case and are procedural.

Used by investigation authorities, judicial authorities within their powers to persons participating in the case, inappropriate behavior of which can prevent the successful course of criminal proceedings.

Measures of procedural coercion are decisions and actions of bodies that proceed with the case provided for by criminal procedure law.

Considering the question of what procedural coercion measures should examine their main features:

1. They have specific goals based on the general purpose of criminal proceedings.
2. It is used when there are bases and conditions provided for by the law, condition and order that guarantees their legality and validity.
3. Have a special content and character.
4. In addition to the will and desire of citizens, or objectively limit their rights.

The general reasons and the limit for the application of measures of procedural coercion is the need to achieve justice goals, ensuring the relevant procedure for criminal proceedings and the proper execution of the sentence.

Proceeding measures are used only in cases where obstacles for the movement of the case are really possible.

General conditions for applying procedural coercion:

1. Excited criminal case.
2. The subject of application that occupies a certain position and accepted the case for its production.
3. The proper object is the persons to which the criminal procedural law applies, the lack of service immunity.

The concept and types of measures of procedural coercion provides for criminal procedure legislation:

If there is grounds for the preventive measure, determining its appearance, the investigator, the investigator, the prosecutor and the court should take into account the severity of the charges, information about the personality of the accused, his age, the state of health, marital status and other data.

Measure to prevent against the accused is chosen during the preliminary investigation and judicial trial Before the sentence entry into force. Upon extension of the investigation, the preventive measure is also prolonged at the same time.

An exception is such a preventive measure as a detention. It has its own terms of calculation, which needs an independent extension.

The preventive measure for the suspect is valid for 10 days. In the case when it has not been charged during this period, the preventive measure is removed.

A preventive measure that is determined against persons suspected of crimes provided for by Art. 205, 205.1, 206, 208, 209, 277, 278,279, 281 and 360 of the Criminal Code, is valid for a month, it is within this time they must be charged.

The decision on the choice of preventive measure is issued by the relevant decision.. Copy this document Awarded to the accused, his defender and the legal representative at their request.

The difference of preventing measures from other measures of procedural coercion is:

There is a variety of procedural forms to apply other measures of procedural coercion.

The detention of the suspect is a measure of official coercion, which is applied by the body of the inquiry, investigator or prosecutor for a period of no more than 48 hours from the moment of actual detention of a person on suspicion of committing a crime.

The investigator has the right to delay the citizen on suspicion of committing a crime for which punishment may be appointed in the form of imprisonment.

To do this, there must be one of these grounds:

1. When a citizen is noticed when committing a crime or at the time of its completion.
2. When the victims or eyewitnesses will indicate this person as a crime committed.

If there are other data that gives reason to suspect a crime face, it can be detained.

In the case when a person tried to hide or having a permanent place of residence, his personality was not established, and also if the investigator was sent by the consent of the leaders to the court, about the election of a preventive measure in the form of imprisonment.

After the suspect is delivered to the investigator, the protocol must be drawn up within 3 hours. It makes a mark that the suggested rules were clarified, article 46 of the Code of Criminal Procedure was provided.

In the protocol, specify all the necessary data:

1. Year, number, month, day, time and place of its compilation.
2. The foundations and motives of the detention of the suspect.
3. The results of his personal search and other retention motives.
4. The Detention Protocol is signed by a person who has also been suspected.

The investigator must inform the prosecutor about this in writing within 12 hours from the date of detention. The inquiry authorities carry out the interrogation of the suspect no later than 24 hours, in accordance with the requirements of the second part of Article 46, Articles 189 and 190 of the Code of Criminal Procedure.

Before starting the interrogation suspected of his desire, a date with his defender alone and confidentially is ensured. If necessary, procedural actions with the participation of the suspect, time for a date may be limited to 2 hours.

About this B. obligatory They are informed of the suspect and his defender.

No later than 12 hours from the date of detention, the investigator notifies any of the close relatives of the suspect or gives such an opportunity to him himself.

In the case when the delayed suspect is a soldier, this is notified by the command of the military unit.

If an employee of the Internal Affairs authority is delayed, the head of the authority is informed, which hosts the specified employee.

If a suspect is a citizen or a subject matter of another state, no later than 12 hours from the date of detention about this is notified by the embassy or consulate of this state.

In the case when there is a need for the interests of the investigation to keep the fact of detention in secret, then with the consent of the prosecutor, the notification may not be conducted. An exception is the case when suspected is a minor face.

The detainee or accused of a crime has the right to use the help of a lawyer. The Constitution of the Russian Federation guarantees each right to defense.

The defender is obliged to monitor the correct compliance with all procedural rules. This makes it possible to prevent violations of the rights of the client from the moment of detention.

Thus, the detention of the suspect, as a measure of procedural coercion, is used to determine the involvement of the detainee to the improved crime, as well as to solve the issue regarding the use of preventive measures to him in the form of detention. This is possible only by the initiated criminal case.

Merie proceeding is provided by law in order to objectively limit the rights and freedoms of a person involved in criminal prosecution.

The main goal is to prevent or stop the unlawful actions of these faces. The main differences of procedural preventive measures from other measures is subject to the subjects to which they apply, values, which are subject to restriction, order of election, changes and cancellation.

Rights are not only certain social capabilities, but also certain social necessities, not freedom at all, but the measure of freedom. Any individual is obliged to operate under certain framework, agreeing with the rights with the rights of other members of society, while carrying the burden of responsibility for their behavior. To ensure their prosperous existence, the society is forced to restrain the negative activity of citizens.

There are situations where public interests dictate the need for a direct invasion of the state to the sphere of people's rights: this is the need to combat criminals and other offenders; overcoming the unfavorable situation caused by an epidemic or a natural disaster and their consequences; Implementation of the military. Among them, a special place, due to continuity and significant distribution, is occupied by providing public order And the fight against crime, which "is not just one of the functions of the state, but there is a part of the legal regime, within which the actual protection and respect for the rights and dignity of the individual" Vasilyeva E.G. Measures of criminal procedure coercion. Monograph. Ufa: publishing house Bashkir state University, 2003. p. five;.

Before the criminal proceedings of the Russian Federation, there are tasks for the rapid and complete disclosure of crimes, the initiation of the guilty and ensuring the correct application of the law so that the person who committed a crime has been fairly punished, and the innocent was not attracted to criminal liability and convicted.

Often, the procedural duties of citizens perform voluntarily and conscientiously. But often the situation when individuals do not perform the procedural duties assigned to them, in every way oppose the investigation authorities: prosecutors, courts carrying criminal proceedings (destroy material evidence, hide the stolen property, intimidate or talked to witness not to testify, hide from the criminal authorities legal proceedings, counteract the execution of court sentences and other court decisions).

In order to prevent, warnings, neutralization and eradication of such a counteraction, our state obliges the investigation authorities: the prosecutor's office and the courts are clarified with such persons. educational work, to convince them of the need for conscientious fulfillment of civil debt to criminal proceedings, and in the absence of positive results from the activities of an explanatory and educational nature, as well as convictions - to apply to non-memorable participants in the criminal proceedings. Measures of state-appliance, including (in cases With the restriction of personal freedomyelov V.A. Preventive measures in the Russian criminal process. - M: right and law, 1996. p. 4-5;.

State coercion measures as an integral part state functions Called to ensure the implementation of the rules of law. Measures of state coercion in cases determined by the criminal procedure law are applied and independently of the events of educational and explanatory nature in order to ensure the proper behavior of the participants in the process to guarantee the interests of criminal proceedings.

Given that state coercion is associated with the significant limitations of the human rights and freedoms established by the Constitution of the Russian Federation, in criminal proceedings, it is permissible only in strictly established laws, subject to the appropriate guarantees of the legality and validity of its application.

State coercive measures used in the criminal procedure activities of the investigative bodies, prosecutors, ships are referred to as measures of procedural coercion there, p. 6;.

Measures of criminal procedure coercion are provided for by the criminal procedure law of the decision and action of bodies leading the proceedings in the case, limiting the rights of the remaining participants in the process, in addition to their will Kalinovsky K. B., Smirnov A. V. Criminal process. Exam preparation allowance. - St. Petersburg:, Peter, 2003. With. 45;.

General for all measures of criminal proceedings is the possibility of their implementation, regardless of the will and desire of the face to which they apply. Such an opportunity, however, does not always turn into reality, since citizens often not only do not impede the official to fulfill their duties, but voluntarily and consciously fulfill the prescriptions of the rules of law. At the same time, the opportunity forced execution These measures gives the immesitive and forced nature of the criminal procedural law of the Russian Federation: a textbook. / Answer ed. P.A. Lupinskaya. - M.: Lawyer, 2001. With 285;.

Criminal proceeding measures are not the same in nature, and their use has to have different goals. Some of them are designed to stop the possibility of continuing by the accused (suspected) criminal activity, its evasion from the investigation or court either preventing procedural activities (preventive measures, detention, removal from office, removal of persons from the courtroom). Others are related to the need to deliver persons to investigative or judicial authorities (drive unit). Third are aimed at discovering and procedural consolidation of evidence (searches, recess, examination, obtaining samples for comparative research, the premises of the accused or suspect in medical institution For an expert study) ibid, p. 286;.

Preventive measures have a pronounced nature, belong to the supplements.

At the same time in a specific case investigative action may not have a compulsory nature if the person in respect of which it is carried out does not object to its production. For example, a person voluntarily participates in survey, provides samples for a comparative study, issues objects or documents that are important for the case, etc. Since criminal proceeding measures limit constitutional rights and freedom of citizens, we need solid procedural guarantees that would ensure their legality and validity. In the legal state, it is important how much proceeding measures are caused by the actual need to limit citizen's rights. The goals of criminal proceedings should be achieved with the smallest restriction of the rights and freedoms of a citizen. The Constitution of the Russian Federation, the current criminal procedure legislation establish important procedural guarantees of this (Article 55, 56 of the Constitution of the Russian Federation).

Also, if there is a reasonable suspicion of the crime, this person provides for the possibility of limiting some of the rights of this person (for example, the right to freedom of movement, personal freedom, etc.) in the manner prescribed by law. Are such measures compatible with the presumption of innocence? The purpose of these law enforcement is not a punitive or correctional impact on the person involved in criminal liability, but in creating conditions for the legitimate and reasonable permission of the criminal case. The most significant than the difference between measures of procedural coercion from criminal punishment is their conditional, temporary character. Decisions on measures of procedural coercion are performed only as long as there are circumstances that they are caused. And if these circumstances have passed, they must be canceled by assentual issues of the criminal process modern Russia: Inter-University Collection of Scientific Labor. Ot. ed. ZD Yenikeev. Ufa: Rio Bashchi, 2003. p. 22;.

The value of criminal proceeding measures is huge, they ensure the functions of criminal prosecution and the permit of the case on the merits, and also ensure the management of evidence and guarantee a civil lawsuit in a criminal case. Thus, the detention of the suspect and the use of preventive measure is designed to ensure the functions of criminal prosecution and the permit; The drive of the witness or the victim is to collect evidence in the form of testimony of these participants in criminal proceedings, and the imposition of arrest on property is a civil lawsuit presented in a criminal case.

Thus, out of all above, it follows that the content of measures of criminal proceedings are: deprivation of personal freedom, which is the essence of detention on suspicion of a crime and preventive measures in the form of detention; Restriction of personal freedom, which takes place, for example, when applying a preventive measure in the form of a subscription on the unrecognition; Restriction of property rights, which takes place when applying an arrest on property; the threat of a significant property loss, which forms the essence of the preventive measure in the form of a pledge; temporary deprivation of post, which takes place when applying temporary removal from it; Other deprivation and legal representation (for example, delivered to the law enforcement agency, contrary to his will, which is the content of the drive, money recovery, meaning the causation of losses, special regime military servicewhich is used when electing a preventive measure in the form of observation of the command of the military unit) Unlimpin B.T. Criminal Process of Russia: studies. - 2nd ed., Pererab. and add. - M.: TK Velby, Publishing House Prospekt, 2004. p. 156;.

1. The concept, types and importance of measures of procedural coercion.
2. The grounds, motives and the procedure for detention.
3. The concept and types of preventive measures, the foundation and order of their application.
4. Other measures of procedural coercion.

1. The concept, types and importance of measures of procedural coercion.

Effective organization of criminal prosecution is possible only if there is available law enforcement Measures of state coercion. One of the species of measures of state coercion is the measures of criminal procedure coercion. Forcing measures as a method of state impact are used to eliminate obstacles created by the participants of the proceedings during initiation, investigation and consideration of the circumstances of the crime.

For criminal proceedings, a variety of coercive measures is characterized. They form a system that has the following features:

1. Used during the production period in a criminal case and are procedural, legal framework.

2. Applied by those organ or official, in the production of which is a criminal case. The subjects of the application of measures of procedural coercion are, as a rule, the investigator, the investigator and the court, which causes the volitional nature of coercion measures.

3. Apply to persons participating in the case, the improper behavior of which or the possibility of such behavior creates or can create obstacles to the progress of criminal proceedings. Measures of procedural coercion are applied not only in relation to persons who are subject to criminal prosecution (suspect, accused), but also with respect to other participants in criminal proceedings.

4. Have specific objectives arising from the appointment of criminal proceedings. Election of preventing measures in the form of detention is intended to ensure proper behavior of the face.

5. Have a special content and nature. Thus, the content of proceeding measures is imprisonment, in case of detention of a person on suspicion of committing a crime either in the event of election in relation to a person in the form of detention; Limiting personal freedom, if it comes, for example, about home arrest; Restriction of property rights, in the event of an arrest of property or monetary penalties, etc.

6. They have specific reasons, conditions and limits of application, that is, they have a certain regulation.

7. The decision to apply coercive measures is issued by the relevant procedural document.

The necessary condition for the application of measures of criminal proceedings is their legality and validity, since these measures limit the law and legal interests of a person and citizen by the Constitution of the Russian Federation. The conditions for applying forcing measures are expressed: 1) in the regulatory determination of the types of forced measures; 2) in determining the subjects, specially authorized and endowed with the right application of procedural coercion; 3) in the instructions of persons in respect of which certain types of coercion can be applied; 4) in the consolidation of the procedure for applying criminal procedure coercion (grounds, conditions and procedures for use).

In the science of the criminal process there are various classifications of force measures.

The Code of Criminal Procedures of the Russian Federation enshrines only one division into three groups, this is the so-called three-born system, which is adhered to many procedural scientists. The main criterion of classification is internal content. In accordance with it, coercive measures are divided into:

1) detention of the suspect (ch. 12 of the Code of Criminal Procedure);

2) preventive measures (ch. 13 of the Code of Criminal Procedure);

3) Other coercive measures (ch. 14 of the Code of Criminal Procedure).

Other coercive measures are also divided into used to the suspect and the accused (part 1 of article 111), and applied to the victim, a witness, a civil plaintiff, a civil respondent, an expert, a specialist, a translator, understood (Part 2 of Art. 111).

Summarizing the foregoing, you can formulate the concept criminal proceeding measures- This is a combination of criminal procedural, compulsory measures used in a strictly prescribed manner with power subjects as methods of impact on the behavior of those involved in individuals in order to ensure the implementation of the criminal proceedings.

2. Grounds, motifs and detention procedures.

Let me remind you that the use of such a force of coercion, as detention in the order of Art. 91 Code of Criminal Procedure, automatically translates the person into the status of the suspect. The detention occupies a special place among the measures of procedural coercion, this is caused by its integrative nature, on the one hand, is a means of restraint and disclosure of a crime, on the other hand, this is a short-term deprivation of facial freedom.

Code of Criminal Procedure in paragraph 11 of Art. 5 determines the detention of a suspect, as a measure of procedural coercion, applied by the inquiry authority, the investigator, by the investigator for a period of not more than 48 hours from the moment of actual detention of a person on suspicion of committing a crime.

Of this definition it's clear that subjects detaining may be:

Inquiry;

Investigator;

Investigator.

General condition Detention is - suspicion of a person in committing a crime for which punishment may be appointed in the form of imprisonment.

In art. 91 Code of Criminal Procedure as actual grounds Detention indicates the following circumstances:

1) When this face is caught in a crime or immediately after its commit. This situation takes place when detaining the face of the employees of the PPS company, the traffic police, the act of detention in this case is fixed in the report.

2) When the victims or eyewitnesses will indicate this person as a crime committed. As a rule, this information the investigator establishes during the presentation for identification.

3) when on this face or his clothes, with it or in his dwelling, explicit traces of the crime will be discovered. Information about this fact can be obtained in the production of housing, personal search, searched, which will be recorded in the protocol of the relevant investigative action.

In addition, the legislator also provides a number of other data that gives reason to suspect a person in committing a crime. The person can be detained if this face was trying to hide, or does not have a permanent place of residence, or his personality was not established, or if the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor to court a petition for the election of preventive measures in relation to said person The form of detention.

Motives of detention suspect Also should be reflected in the preparation of the protocol. These include preventing the attempts of this person:

1) hide from the preliminary investigation authorities or the court;

2) to prevent the production of criminal proceedings by providing pressure on witnesses and other participants in the criminal process, the destruction of material evidence, etc.;

3) continue in the future criminal activities;

4) prevent the execution of the indictment.

Procedural order Detention is defined in Art. 92-96 Code of Criminal Procedure.

Detention order Includes the following steps:

- actual detention and personal searches. An administrative detention should be distinguished (Art. 27.3 of the Administrative Code) and the Criminal Procedure Detention (Article 91 of the Code of Criminal Procedure). The starting point of all terms during the detention is the moment of actual detention. Detention period - 48 hours, during which one of the following decisions should be taken:

1) on attracting a person as an accused;

2) The election against a suspected preventive measure (Art. 100 of the Code of Criminal Procedure of the Russian Federation) before the charge for a period of no more than 10 days, and if the suspect was detained, and then imprisoned - in the same time since the detention. The prosecution of a crime against public security, the constitutional system and security of the state should be suspected of which a preventive measure is elected, no later than 30 days from the date of use of the preventive measure. If during this period the accusation will not be presented, then the preventive measure is immediately canceled.

3) to extend the detention period. The extension of the detention period is allowed to be recognized by the Court of detention legitimate and substantiated for a period not more than 72 hours from the date of the court decision on the request of one of the parties to submit additional evidence of the validity or unreasonableness of the election of the preventive measure in the form of detention. The decision to extend the detention period shall indicate the date and time to which the detention period is extended.

4) on the release of the suspect from the IVS.

Next stage Detention - drawing up protocol (3 hours from the date of delivery to the preliminary investigation authority). The protocol shall indicate the date and time of the protocol, date, time, place, grounds and motives of the detention of the suspect, the results of his personal search and other circumstances of his detention. The Detention Protocol is signed by a person who has compiled, and suspects, a mark is made that his rights are explained to the suspect.

Next stage - Notification of the prosecutor (12 hours from the date of detention);

Followed by - Interrogation of the suspect Not later than 24 hours from the moment of actual detention. Before the interrogation began, a meeting with the defender alone, confidentially and for at least 2 hours, must be ensured by the suspect at his request;

And the last stage - notification of someone from close relatives, but if they are lacking - other relatives or the possibility of such a notification to the most suspect (no later than 12 hours from the moment of detention). In the arrest of the suspect, which is a serviceman, is notified by the command of the military unit, and in case of detention of the employee of the Internal Affairs authority, the head of the authority, in which the specified employee is held. Upon detention of a suspect, which is a member of the Public Supervisory Commission, formed in accordance with the legislation of the Russian Federation, this is notified by the Secretary of the Public Chamber of the Russian Federation and the corresponding Public Supervisory Commission. If the suspect is a citizen or subjects subject to another state, the embassy or consulate of this state is notified.

Of these notification regulations, an exception is provided - the need to preserve in the interests of the preliminary investigation in the secret of the detention. In this case, the notice with the consent of the prosecutor may not be made, except when the suspect is minors.

The foundations of the liberation of the suspect are listed in Art. 94 Code of Criminal Procedure:

1) did not affect the suspicion of committing a crime;

2) there are no grounds for the use of preventive measures in the form of detention;

3) The detention was made with violation of the requirements of Art. 91 Code of Criminal Procedure.

When freeing the suspect from custody, it is issued a certificate, which indicates who he was detained, date, time, place and foundation of detention, date, time and foundation of liberation.

If it is necessary to conduct operational and search activities, meetings of an employee of an inquiry authority, carrying out operational investigative activities, with a suspect from the written permission of the investigator, investigator or court, in the production of which is a criminal case.

In this way, detention - this is a short-term deprivation of Freedom of a person suspected of committing a crime for which the punishment may be appointed in the form of imprisonment, in order to curb his criminal activity, preventing concealment from investigation and court, falsification and concealment of evidence and other actions that may interfere with the establishment of circumstances Case.

3. The concept and types of preventive measures, the foundation and order of their application.

Preventive measure - these are the funds provided by the law applied to the accused and suspect, which are in certain psychological impact, the threat of property losses, establishing specified persons supervision, placing them in custody, depriving or limiting the freedom of the accused or suspect.

According to the Code of Criminal Procedure preventive measurementsrelate :

House arrest;

Personal guarantee;

Binding for juvenile accused;

House arrest;

Detention.

General the basis of the application of preventive measures is listed in Art. 97 Code of Criminal Procedure - This is the presence of circumstances, allowing to believe that the accused:

1) drives out of inquiry, preliminary investigation or court;

2) can continue to engage in criminal activities;

3) may threaten the witness, other participants in criminal proceedings, destroy the evidence either otherwise to prevent the production of criminal proceedings.

4) to ensure the execution of the sentence or the possible issuance of the face.

The listed grounds are common to election any preventive measure. Solving a question about the use of one or another preventive measure must be taken into account special foundations, namely: the severity of crime, information about the personality of the suspect or the accused, its age, state of health, marital status, occupation and other circumstances.

Subjects of application of preventive measures are: investigator, investigator, court. Only the court elects a measure of preventing in the form of a pledge, home arrest, detention. In this case, the consent to the initiation of the investigator gives the investigator to the investigator, and the investigator is a prosecutor.

The order of election of preventive measure is as follows:

The investigator, the investigator, the court of resolution on the election of a concrete preventive measure

Awarding a copy of the resolution of a suspect, accused, his defender and legal representative, if any. In case of imprisonment, a copy of the decision is sent to the administration of the SIZO.

An explanation of the procedure for appealing a preventive measure.

Drawing up subsequent documents, such as a non-weeration subscription, receipt for making money as a collateral.

Cancellation or change of preventive measure is made according to the decree of the investigator, investigator or judge or by definition of the court.

The preventive measure is canceled when it disappears the need, or changes to a stricter or softer, when the grounds for the election of the preventive measure change.

The preventive measure is changing to more strict when:

The accused behaves inappropriately;

The qualifications of the crime change, new data appear, which are negatively characterizing the identity of the accused.

The criterion for consideration of each type of preventive measures within our classes is a limitation and imprisonment.

The preventive measures not related to the deprivation of freedom refers primarily subscribe to the unsewable and proper behaviorwhich consists in the written commitment of the suspect or the accused:

1) not to leave constant or temporary residence without the permission of the investigator, investigator or court;

2) at the appointed time to be on the challenges of the investigator, the investigator and to court;

3) otherwise it is not to prevent criminal proceedings.

When this preventive measure is elected, the following documents are drawn up: a resolution on the election of the preventive measure and subscription of the unprit and appropriate behavior.

Next preventive measure - personal guaranteewhich consists in a written commitment of a trustworthy person that it swings for the execution of suspected or accused obligations provided for for a non-recognition subscription and proper behavior.

The election of personal guarantee as a preventive measure is allowed at a written request of one or several guarantors with the consent of the person in respect of which the guarantee is given.

The guarantor explains the essence of suspicion or accusations, as well as the obligations and responsibility of the guarantor associated with the implementation of personal guarantee.

In case of failure to comply with the guarantor of its obligations, a monetary penalty may be imposed on it in the amount of up to ten thousand rubles. The law the number of guarantors is unlimited.

Personal guarantee includes the following subspecies:

Observation of the command of the military unit;

Listen to the minors accused and suspect.

In these two cases, we are talking about a special subject - a military personnel ( urgent service Or undergoing military fees and located at a barren position) or a minor (a person aged from 14 to 18 years old), guarantors, respectively, act for the military personnel - the command of the military unit, with respect to the minor - parents, guardians, trustees, or officials of a specialized children's institution.

The next preventive measure is associated with property restrictions - this pledge.

The pledge consists in making or transmitting suspected, accused or other physical or legal entity At the stage of preliminary investigation into the body, in the production of which is a criminal case, and at the stage of judicial proceedings - in the court of real estate and movable property in the form of money, values \u200b\u200band admitted to public applying in the Russian Federation in the Russian Federation in order to ensure the appeal of the suspect or the accused To the investigator, the investigator or to court, preventing the commitment of new crimes. Pledge can be elected at any time in criminal proceedings.

The type and amount of collateral are determined by the court, taking into account the nature of the crime, the identity of the suspect or the accused and property position of the pledger.

At the same time, in criminal cases of crimes small and medium severity The amount of pledge can not be less than one hundred thousand rubles, and criminal matters about grave and especially serious crimes - less than five hundred thousand rubles. Can not be taken as a deposit of property on which, in accordance with the Civil Procedure Code of the Russian Federation, the penalty cannot be drawn.

Real estate, admitted to public applying in the Russian Federation. Shares and bonds, values \u200b\u200bcan be taken as departing subject to the provision of genuine copies of documents confirming the ownership of the pledger to the property transferred to the pledge, and the lack of restrictions (encumbrances) of the rights to such property. In the event that, in accordance with the legislation of the Russian Federation, restriction (encumbrance) of property rights is not subject to state registration or accounting, carried out including a depositary or register holder of securities owners (registrar), the pledger in writing confirms the accuracy of information about the absence of restrictions ( Explosions) rights to such property.

The money that is the subject of the pledge is made to the deposit account of the relevant court or body, in the production of which is a criminal case. On the adoption of a pledge by a court or body, in the production of which is a criminal case, a protocol is drawn up, a copy of which is awarded to the pledger.

If the deposit is made by a person who is suspected or accused, he explains the essence of suspicion, the accusations, in connection with which this preventive measure is elected, and the obligations associated with it and the consequences of their violation.

In the ruling or determination of the court on the application of pledge as a preventive measure, the court establishes the term of deposit. If the suspect or the accused is detained, then the court, subject to the recognition of the detention legitimate and reasonable, extends the detention period before making a deposit, but not more than 72 hours from the moment of a court decision. In the event that no deposit is submitted within the prescribed period, the court considers the issue of election to a suspect or accused other preventive measure.

If the deposit is applied instead of a previously elected preventive measure, this preventive measure is valid before making a deposit.

The consequence of violations by suspected or accused obligations associated with the deposit, pledge refers to the state's income on the court decision.

The deposit is returned to the pledger when a sentencing or decision or decree on the termination of a criminal case.

Let us turn to the second group of preventive measures that are associated with imprisonment.

Quite often the distribution received such a preventive measure like house arrest.

Homemade arrest is to find a suspect or accused in full or partial isolation from society in a residential premises in which he lives as a owner, the employer either on other legal grounds, with the imposition of restrictions and (or) prohibitions and the implementation of controls. Taking into account the health status of the suspect or the accused place of its content under house arrest, a therapeutic institution may be determined.

The term of home arrest is up to 2 months. During home arrest, the detention time is counted. The cumulative term of home arrest and detention, regardless of which sequence, these preventive measures were applied, should not exceed the deadline for detention.

Having considered the petition for the election of a preventive measure in the form of a home arrest, the judge makes one of the following regulations:

1) on election against a suspected or accused measure of preventing in the form of home arrest;

2) on refusal to satisfy the petition.

Homemade arrest suggests the following prohibitions and (or) restrictions:

1) exit outside the residential premises in which he lives;

2) Communication with certain persons;

3) sending and receiving postal-telegraph shipments;

4) the use of communication tools (except for the challenge of emergency care, law enforcement officers, emergency rescue services in the event of an emergency, as well as to communicate with a controlled body, the investigator, with the subsequent notice of the control system) and information and telecommunications Network "Internet".

A special role is assigned to ensure this preventive measure. The decision of the court indicates the conditions for the execution of this preventive measure (the place where the suspect or accused, the term of home arrest will be, the time during which the suspect or the accused is allowed to be outside the place of execution of preventive measure in the form of home arrest, bans and (or) restrictions established for a suspect or accused, the places that he is allowed to visit).

Control is carried out federal organ Executive authorities exercising law enforcement functions, functions to control and oversight in the execution of criminal penalties against convicts. In order to monitor control, audiovisual, electronic and other technical controls can be used. In the body of the inquiry or the preliminary investigation body, as well as a suspect or the accused is delivered by the vehicle of the controlling body.

Meetings of a suspected or accused under house arrest in full isolation from society, with a defender, a legal representative undergo in the venue of this preventive measure.

Next preventive measure - detention - The most strict preventive measure, which lies in the forced deprivation of freedom by placing in the remand insulator.

In addition to general groundsfor election such a measure of preventing special foundations:

The accusation or suspicion of committing crimes, for which the criminal law is punished in the form of imprisonment for more than three years;

The impossibility of using other, softer, preventive measures;

The suspect or the accused does not have a permanent place of residence in the territory of the Russian Federation;

His personality is not installed;

They have been violated a previously elected preventive measure;

He disappeared from the preliminary investigation authorities or from the court.

Stages of election of detention as a preventive measure include:

Establishment of general and special grounds for election of preventive measure.

Further, the investigator with the consent of the head of the investigative body, and the investigator with the consent of the prosecutor initiate an appropriate application before the court, as decreed. Materials confirming the validity of the petition are attached to the ruling. (If the petition is excited against a suspected detained in the manner prescribed by Art. 91 and 92 of the Code, the ruling and these materials should be represented by the judge no later than 8 hours before the expiration of the detention period.)

Then there is a consideration of the judge of the petition for election as a measure of curbing the detention. Consideration is made individually to the judge of the district court or the military court of the relevant level, with the obligatory participation of the suspect or the accused, the prosecutor, the defender, if the latter participates in a criminal case, at the place of production of the preliminary investigation or at the place of detention of the suspect within 8 hours from the receipt of materials in court . Consideration by the Court of Petition on the extension of the term of the detention in his absence is not allowed, except for the cases of the accused of inpatient forensic psychiatric examination and other circumstances, excluding the possibility of delivering it to court, which must be confirmed by the relevant documents. At the same time, the participation of the defender of the accused at the court session is mandatory.

1) on election against a suspected or accused measure of preventing in the form of detention,

2) on refusal to satisfy the petition, in this case the judge is entitled to elect another preventive measure in the form of a pledge or home arrest;

3) on postponement of decision on the request of the party for a period of not more than 72 hours to submit additional evidence of the reasonableness of the detention.

Conclusion The detention as a preventive measure cannot be applied to a suspect or accused of committing a number of crimes in the field of entrepreneurial activity.

To a minor suspected or accused of detention as a preventive measure can be applied if he is suspected or accused of committing a grave or particularly serious crime. In exceptional cases, this preventive measure can be elected against a minor, suspected or accused of committing a crime of moderate severity.

The judge's decree may be appealed in the appeal within 3 days from the date of its submission.

Detention period.The detention in the investigation of crimes may not exceed 2 months. If it is impossible to complete a preliminary investigation of up to 2 months and in the absence of grounds for change or cancellation measure of preventation, this period can be extended in the order of Art. 108 CPC up to 6 months. Further extension of up to 12 months can be carried out in respect of persons accused of grave and especially grave crimes, only in the cases of the special complexity of the criminal case.

The materials ended with the investigation of the criminal case should be charged by the accused contained in custody and its defender no later than 30 days before the end of the deadline for detention. If, after the end of the preliminary investigation, the criminal case materials were charged with the accused and his defender later than 30 days before the end of the deadline for detention, then, by its expiration, the accused is subject to immediate exemption. In case, after the end of the preliminary investigation, the deadlines for presenting the materials of this criminal case, the accused and his defender were observed, but 30 days to familiarize themselves with the materials of the criminal case, they were not enough, the investigator with the consent of the head of the investigative body for the subject of the Russian Federation or an equivalent to it The head of the other investigative body has the right no later than 7 days before the expiration of the deadline for detention to initiate a petition for the extension of this term before the court.

The petition for the extension of the term of detention should be submitted to the court at the place of production of the preliminary investigation or the place of detention of the accused in custody no later than 7 days before its expiration. The judge no later than 5 days from the date of receipt of the petition decides:

1) on the extension of the term of detention until the end of the inferiorization of the accused and his defender with the materials of the criminal case and the direction of the prosecutor's criminal case into court;

2) refusal to satisfy the application of the investigator and the liberation of the accused of custody.

4. Other measures of procedural coercion.

The purpose of the application of other measures of procedural coercion is to ensure the established procedure for criminal proceedings, proper execution of the sentence.

Subjects of application of these measures are: the investigator, investigator or court.

Types of other measures of procedural coercion depend on the object of application and are divided:

Applied only to the suspect, accused: temporary removal from the post, the imposition of arrest on property;

Applied to the witness, victim and other participants - money recovery;

Applied to the suspect, the accused, victim, witness and other participants in the process - the obligation to the appearance, drive;

Depending on the need to obtain a court decision for applying, coercive measures are divided:

On the court decision - temporary removal from the post, the imposition of arrest on property, monetary penalties;

On the investigator applied by the decision, the investigator - the obligation to the appearance, the drive.

In accordance with the law, the following types of other measures of procedural coercion are envisaged (Art. 112-118 of the Code of Criminal Procedure): the obligation to the appearance, drive, temporary removal from the post, the imposition of arrest on property, the imposition of arrest on securities, money recovery.

According to Art. 112 Code of Criminal Procedure obligation on the Jaw It consists in a written obligation of the person specified in a timely manner to be the challenges of the investigator, the investigator or to the court, and in the case of changes in the place of residence immediately report it. The person clarifies the consequences of a violation of the obligation, as the corresponding mark is made in the obligation.

Drive unit - Art. 113 Code of Criminal Procedure - is the forced delivery of the face to the investigator, investigator or to court. The decision on the drive before its execution is declared a person who is exposed to the drive, which is certified by its signature on the ruling or definition.

Restrictions for carrying out drive:

The drive cannot be made at night, with the exception of cases that do not endure deposits.

Do not be subject to minors under the age of fourteen, pregnant women, as well as patients who, for health, cannot leave the place of their stay, which is subject to a certificate by the doctor.

The regulatory regulation of the drive is enshrined in various departmental instructions.

Temporary removal - Art. 114 of the Code of Criminal Procedure - consists in ban on the decision of the court for the execution of his official functional duties At a certain time. Subject Special - official.

The term of adoption by the court decision is 48 hours. A copy of the ruling is sent at the place of work. Temporarily dismissed suspect or accused has the right to a monthly allowance.

Property arrest - Art. 115 Code of Criminal Procedure - applied by a court decision to ensure the execution of a sentence in a part of a civil claim, other property recovery or possible confiscation of property.

The imposition of arrest on property is to ban, addressed to the owner or property owner, dispose of them and in the necessary cases to use it, as well as in the seizure of property and transfer it to storage.

The arrest can be imposed on property in other persons, if there is sufficient reason to believe that it is:

Received as a result of the criminal actions of the suspect, the accused,

It was necessary or intended for use as an instrument of a crime or to finance terrorism, an organized group, illegal armed formation, criminal community (criminal organization).

When applied to property, the Protocol is drawn up. In the absence of property to be arrested, this is indicated in the protocol. A copy of the protocol is awarded to face whose property is imposed.

The imposition of arrest on property is canceled on the basis of a decree, determination of a person or body, in the production of which is a criminal case, when the need for this measure is due.

The Code of Criminal Procedure of the Russian Federation regulates the features of the order of arresting on securities, the securities of the bearer are not subject to arrest, which are at a conscientious acquirer. In the protocol on the imposition of arrest on securities indicate:

1) the total number of securities to which arrest is imposed, their appearance, category (type) or series;

2) nominal value;

3) State Registration Number;

4) information on the issuer or on persons issued securities or carrying out the rights of the owner of the securities, as well as the place of accounting;

5) Document information certifying the ownership of the securities to which arrest is imposed.

The next measure of coercion is monetary recovery - Art. 117 Code of Criminal Procedure applied in cases of non-fulfillment by participants in criminal proceedings of the procedural duties stipulated by this Code, as well as violation of the order in the court session. The amount of money recovery up to 2500 rubles. Monetary recovery is imposed by the court. If the corresponding violation is allowed during pre-trial production, the investigator, the investigator constitutes a protocol on violation, which is sent to the district court and is subject to consideration of the judge within 5 days from the moment of its arrival in court. The court session is caused by a person to which monetary recovery can be imposed, and the person who has compiled a protocol. The non-appearance of the violator without good reasons does not prevent the consideration of the Protocol. According to the results of consideration of the Protocol, the judge makes a decision on the imposition of money recovery or refusal to impose. A copy of the ruling is sent to the person who has made a protocol, and the person on which a monetary penalty is imposed. When a monetary recovery is imposed, the court has the right to delay or bypass the execution of the decision for up to 3 months.

Lecture 8. Other provisions of the general part of the criminal procedure law