What is the article of the Code of Criminal Procedure about?
The Criminal Procedure Code allows a petition for detention to be submitted to an investigator, an interrogating officer and a prosecutor. The judge has the right to grant this request or deny it. When choosing a measure of influence, the judge must clearly indicate what circumstances served as the reason for isolating the accused.
Data presented by the investigator as facts that have not been confirmed by appropriate examination or investigative measures cannot be such circumstances. In exceptional cases, detention may be applied to a suspect who does not have a place of permanent residence, has already fled from the investigation, his identity has not been established, or he has previously violated the procedure for other preliminary measures.
Detention serves several purposes, the first of which is to respect and protect the rights of victims of crime. Often, isolating the accused allows him to be protected from the actions of relatives of the victims and from public retaliation.
Restricting movement allows the legislator to minimize the likelihood that a lawbreaker will escape justice or commit another crime.
It is strictly prohibited to take into custody a person who has not committed a serious crime without the circumstances approved in the Code of Criminal Procedure. A decision on pre-trial imprisonment can be appealed within 3 days from the date the judge issues such a decision. Minors can be placed under arrest only in cases where they have committed a grave or especially grave crime.
Basic provisions
Only people who have been charged can be detained. If a person is detained to clarify the circumstances of the case, he must be released after 72 hours. The arrest order is transmitted to the accused or his defense lawyer, and the suspect is obliged to comply with the decision of the legislator. The accused is delivered to the place of serving the preventive measure by transport of the regulatory authorities.
During the execution of the sanction, the accused is prohibited from contacting anyone other than employees of the supervisory authority and his own defense lawyer. Telephone calls, parcels and meetings are prohibited. Many people confuse arrest with imprisonment. The difference lies, of course, in the duration of the sanction, as well as in the more stringent “framework” of keeping the criminal.
An arrest is a kind of reminder of what criminal punishment is and that this form of suppression will be followed by a longer period of imprisonment.
Arrest may not apply to all categories of criminals. It is prohibited to use this measure of influence against the following subjects:
Terms of detention of accused and suspects under the Code of Criminal Procedure of the Russian Federation, Article 109
- pregnant women;
- women with children under 8 years of age;
- to people of retirement age;
- people with disabilities.
Detention cannot be used for persons who have committed a serious crime if they are under 16 years of age at the time of detention.
Types of punishments and terms
Art. 108 of the Code of Criminal Procedure of the Russian Federation with comments states that the accused can be detained for a period of up to two months. If this time is not enough to make a court decision, the judge can issue an order and extend the detention to 18 months. A petition for commutation of punishment may also be approved if specific circumstances are determined (for example, the accused becomes ill). The judge may replace the detention with house arrest or bail.
The time spent in custody upon the judge's decision will be counted towards the main term of imprisonment. It is important to note that preventive measures will be counted towards the total term in the aggregate if there were several of them.
This harsh form of influence on the accused allows the court to achieve maximum effect from criminal proceedings. Even the most violent criminals, while in prison, are deprived of the opportunity to commit new crimes or hide from justice.
Preventive measures of the Criminal Procedure Code: important information
The measures we are interested in are used in situations where there are special grounds for this, outlined by the Criminal Procedure Code of our country. The grounds sought are directly the evidence inherent in each specific case, the presence of which creates among the officials involved in its consideration a belief that the accused or suspect may commit one of the following actions before the proceedings come to a logical conclusion.
- He will disappear, thereby complicating the investigation, and also making it impossible to carry out the preliminary investigation and trial.
- He will continue to lead a life of crime, causing harm to society.
- Will create a threat to the life or health of witnesses, as well as other participants in the process.
- Destroy evidence of a crime he has committed, or in any other way interfere with production procedures within the framework of the consideration of a criminal act.
- Prevent the imposition of a sentence or charge against him.
Code of Criminal Procedure of the Russian Federation Article 97. Grounds for choosing a preventive measure
In addition to the grounds taken into account by officials for choosing a specific preventive measure, the specific circumstances and conditions of the act committed by the person and the case being considered regarding it are also taken into account. These include items such as:
- the severity of the crime committed, and, accordingly, the charges;
- individual information about the identity of the accused or suspect;
- age of the designated person;
- the health status of the applicant for preventive measures;
- other circumstances, such as the person’s family status, his professional activity, etc.
The conditions listed above are not in themselves grounds for choosing measures, but they will allow us to determine which of them will be the most appropriate in the situation under consideration.
Who chooses the preventive measure?
The law determines that the following officials may be responsible for the selection and appointment of a specific preventive measure:
- investigator on the case;
- interrogator;
- judge.
Preventive measures specified in the Code of Criminal Procedure of the Russian Federation, applied by court decision
Of course, in this case, the determination of the measure is made within the framework of the powers inherent in a particular position. In addition, only the civil servant who is conducting the criminal case, and in addition the court responsible for judicial control during the preliminary investigation, has the right to make the decision we are interested in.
Can a preventive measure be taken against a suspect?
According to the general rules, the very phenomenon of a preventive measure is provided for imputing a person accused of committing a crime. However, in some cases that are considered exceptional, these methods of behavior control can also be applied to a suspect, subject to the presence of the same circumstances we have outlined above.
At the same time, the law determines that in this case the suspect must receive charges and change his status within 10 days from the moment the measures we are interested in are applied to him.
10 days should pass from the moment of his arrest by law enforcement officials until he is charged .
Provided that the required period is missed and charges are not brought, all preventive measures must be immediately removed from the person
Comments on the article
No person in a civilized state can be arrested or brought to justice without proof of his guilt. Detention is allowed only after the judge verifies the involvement of the designated person in the crime committed. When checking the validity of the suspicion of a subject’s involvement, the court has no right to discuss the alleged guilt; it must be exclusively about the objectivity of the suspicion.
The court should always discuss the possibility of using another, more lenient form of punishment in relation to the suspected or accused person.
It will be interesting to know that the judge has the right to choose a preventive measure in the form of arrest for people who have committed crimes in aggregate, that is, they are simultaneously involved in several criminal proceedings.
For example, if a person committed a theft that falls into the category of medium gravity, but after being caught, investigators established his involvement in forgery of documents, then the court will choose arrest as a preliminary measure. There is a great risk that, having been released on bail, the attacker will again use his criminal skills and, having forged documents, will flee the country. The law cannot allow this, so in exceptional cases they are arrested for crimes of moderate gravity.
What does judicial practice show under this article?
A dozen years ago, according to the Code of Criminal Procedure of the Russian Federation, detention was carried out by issuing a corresponding resolution by the prosecutor. Today, an accused can only be arrested by a court decision. This innovation has found approval among the majority of lawyers, because now the issue of isolating the accused is resolved more objectively.
When the prosecutor issued the resolution, this preventive measure was prescribed according to one template, that is, a huge number of people fell under the restriction. The circumstances of the violation and the identity of the culprit were not studied; the regulatory authorities simply insured themselves. Currently, the situation has changed significantly, but there are still certain problems in applying the preventive measure.
Conditions of house arrest and maximum terms under Article 107 of the Code of Criminal Procedure of the Russian Federation
Article 108 of the Code of Criminal Procedure of the Russian Federation explains with commentary that a restriction in the form of isolation of the accused can only be imposed for crimes for which the maximum sanction is imprisonment for more than three years. As a rule, these are crimes against life and health, sexual integrity, as well as crimes against public safety and offenses in the field of business activity.
What decisions are most often made under this article?
According to statistics, most often criminals in the business sector are taken into custody, although these crimes in the hierarchy of violations of the law have an average level of severity. The fact is that it is the scammers who have high intelligence, which allows them to deceive the investigation. Moreover, as a result of the crime, they have enough finances to escape.
As for grave and especially grave crimes, the legislator places offenders in custody. After all, they understand that as a result of their actions they can receive a long sentence, and in the early stages of the investigation it is easier for them to hide from justice.
People who do not have a family, permanent place of residence or work are at increased risk. There is nothing stopping such criminals, and they easily escape.
How this preventive measure is applied can be seen using a real example of the article “Rape”. The official, while intoxicated, raped the victim, who then filed a corresponding complaint with the police.
The fact of rape was confirmed by a forensic medical examination. The official was charged under Article 131 of the Criminal Code of the Russian Federation and a preventive measure in the form of arrest was imposed. The lawyer applied for house arrest, but the judge rejected the request. The court considered that the accused would try to influence the victim and her relatives in order to avoid punishment, because he has enough money and connections to influence the injured party.
Types of preventive measures
There are several ways to control the behavior of an accused or suspect. Let us consider them further in tables presenting a list of preventive measures applied in the Russian Federation in accordance with the Criminal Procedure Code.
Table 1. Undertaking not to leave and proper behavior
| Preventive measure | Description |
| Undertaking not to leave the place and proper behavior | The sought method consists in taking a written statement from the participant in the criminal process, the text of which contains the obligations:
|
Criminal Procedure Code of the Russian Federation Article 102. Undertaking not to leave and proper behavior
Table 2. Personal guarantee
| Preventive measure | Description |
| Personal guarantee | The required measure is that another citizen, trustworthy in the eyes of the law, undertakes to control the actions of the suspect or accused, and guarantees that he will fulfill all the promises made:
|
Any law-abiding citizen can vouch for the criminal, and then the official can meet the citizens and release the accused, having previously explained to the guarantor the obligations and consequences of his decision
Table 3. Observation by the command of the military unit
| Control method | Description |
| Observation | If the person guilty of or suspected of committing an unlawful act is a member of a military unit, other military personnel will ensure that he follows the restrictions imposed on him. At the same time, the measures that will be applied to him in the process are already established by the statutes of the RF Armed Forces:
|
If the offender is a military serviceman, his comrades in the unit will ensure the fulfillment of his obligations
Table 4. Deposit of deposit
| Preventive measure | Description |
| Posting bail | In this case, it is understood that a person accused or suspected of committing a crime transfers funds or any real estate for temporary possession to the authorized body, thanks to which he can be released from custody. This ensures that this person automatically fulfills all the requirements placed on him. The difference in the procedure for electing this measure from all those previously listed is that only a court can elect it, making an official decision, having previously received a corresponding petition. At the same time, both the criminal himself and other persons related to the case can petition during the court hearing for bail to be applied. The court has the right to take the petition into account, but is not obliged to satisfy it, especially in cases where, as an accompanying argument for refusal, it accepted a petition from the official in charge of the case, asking for the choice of a different preventive measure. The form in which the bail will be received will be decided in each case individually, however, according to general rules it:
|
If a person has enough money or property, then he can leave a deposit with government agencies as a guarantee for the subsequent fulfillment of his obligations.
Table 5. House arrest
| Preventive measure | Description |
| House arrest | House arrest, as a way to obtain from a criminal the behavior required by government agencies, is that the designated person is isolated from society by having to constantly remain inside his own apartment, house, etc. If the person’s health condition requires it, he may be isolated directly in a medical facility. The decision to impose this measure is made by the court. In order for this restriction to bring the expected results, the court also stipulates such nuances as:
|
House arrest is one of the most comfortable options for criminals or suspects, in which they can stay within the walls of their home, and in many situations even receive guests according to a certain list
Table 6. Detention
| Preventive measure | Description |
| Detention | The required restriction is brought into force by means of an appropriate court decision made against the offender, provided that the acts committed by him are punishable under criminal law by imprisonment for a period exceeding two years. Provided that the crime committed is less serious, in some cases this measure is applied anyway,
|
Detention is the most effective measure
A peculiarity of the action of the preventive measure indicated in the table above in relation to a person accused of committing a criminal act, who is a minor citizen, is that its use is possible only in the case where a teenager or child has committed crimes of the following nature:
- grave;
- especially serious.
In these cases, a citizen normally receives the appropriate terms of imprisonment:
- up to ten years;
- over ten years.
Very rarely, this option is used in situations where a minor has committed an act of moderate gravity, the punishment for which is up to 5 years in prison, or an act of negligence, for which one can receive two or more years in prison.
Preventive measures also apply to minors
