Who cannot be subject to prosecution in criminal proceedings?

New edition of Art. 113 Code of Criminal Procedure of the Russian Federation

1. In case of failure to appear when summoned without good reason, the suspect, the accused, as well as the victim, witness and the person in respect of whom the criminal case has been separated into separate proceedings in connection with the conclusion of a pre-trial cooperation agreement with him, may be subject to summons.

2. Arrest consists of forcibly bringing a person to an inquiry officer, investigator or to court.

3. If there are reasons that prevent them from appearing when summoned on time, the persons specified in part one of this article shall immediately notify the authority by which they were summoned.

4. The decision of the inquirer, investigator, judge or court ruling on the arrest before its execution is announced to the person who is subject to the arrest, which is certified by his signature on the resolution or ruling.

5. The drive cannot be carried out at night, except in urgent cases.

6. Minors under the age of fourteen, pregnant women, as well as patients who, for health reasons, cannot leave their place of stay, are not subject to transportation, which must be certified by a doctor.

7. The arrest is carried out by the bodies of inquiry on the basis of a decision of the inquirer, investigator, as well as by employees of the compulsory enforcement authorities of the Russian Federation - on the basis of a court decision.

Commentary on Article 113 of the Code of Criminal Procedure of the Russian Federation

1. If the suspect, accused, as well as the victim and witness did not appear when called (usually they failed to appear twice) without a good reason, a summons may be applied to them.

2. The application of this measure of procedural coercion is possible only after examining the issue of proper notification of the witness about the date, time and place of the court hearing. The absence of evidence of proper notification of the witness about the date, time and place, for example, of a court hearing is an obstacle to applying the drive <585> to him. ——————————— <585> See: Review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for the first half of 2010 // Bulletin of the Supreme Court of the Russian Federation. 2011. N 1.

3. The procedure for enforcement by internal affairs bodies is as follows. The received decision on arrest is reviewed by the head of the internal affairs agency, who must immediately ensure its exact execution. In the absence of the chief, the decision on the arrest is reviewed by his deputy.

4. The official of the body of inquiry assigned to carry out the arrest, on the basis of the information available in the resolution (last name, first name, patronymic, year of birth and place of residence), is obliged to reliably identify the person in respect of whom it was issued. If the resolution does not contain certain data that would allow identifying this person or his place of residence, and it is not possible to fill them in, the internal affairs body immediately notifies the investigator (inquiry officer, etc.) who issued the arrest order.

5. Upon identification of the person to be brought in, the executor announces to him a decree (ruling) to bring him against receipt. The refusal to sign, indicating the reasons, is noted in the resolution and certified by the executor of the drive. In the event of a refusal to sign the person to be brought in by the police officer or the senior group (squad) of police officers executing the drive, a corresponding entry is made in the resolution (definition) on the drive.

6. The person subject to arrest is also explained his right to legal assistance, the right to the services of an interpreter, the right to notify close relatives or close persons about the fact of his arrest, and the right to refuse to give an explanation.

7. When a person subject to summons refers to an illness that prevents him from going to the place of summons, such illness must be certified in the prescribed manner by a doctor working in a medical institution of the health authorities.

8. Illness, as well as other circumstances that actually prevent the execution of the drive (natural disaster, long unforeseen interruption in traffic, illness of a family member or the presence of young children when it is impossible to entrust someone with caring for them, etc.), is immediately notified the investigator (investigator, etc.) who made the decision to bring him in. Attached to the message: a report from the executor, copies of certificates of incapacity for work and other documents confirming the specified circumstances.

9. Police officers carrying out a arrest must not allow actions that humiliate the honor and dignity of the person subject to arrest. They are obliged to exercise vigilance, especially when accompanying a suspect or accused, in order to exclude cases of him evading appearance at the place of summons or causing any harm to himself or others.

10. Upon execution of the decree (definition) on the arrest, the police officer who carried it out receives a receipt from the initiator of the arrest indicating the time of execution.

11. The police officer entrusted with the execution of the decision (determination) on the arrest reports the results of the arrest to the head with a report enclosing a receipt for the arrest. If there are circumstances that prevent the execution of the drive, copies of documents confirming the specified circumstances are attached to the report.

12. In accordance with the law, the arrest of the accused cannot be carried out at night (from 10 pm to 6 am local time), except in urgent cases.

13. Accordingly, the following situations should be recognized as urgent cases:

— factual grounds for using the drive suddenly appeared;

- there are circumstances that allow us to believe that refusal to immediately carry out a summons may lead to the loss of information relevant to the criminal case.

14. If the effectiveness of the drive does not change when it is carried out in the morning of the next day, then this procedural action cannot be considered urgent. Such a drive cannot be carried out at night.

15. A person brought by force to the place of call is handed over against signature to the official whose decision is executed <586>. ——————————— <586> See: Order of the Ministry of Internal Affairs of Russia dated June 21, 2003 N 438 “On approval of the Instructions on the procedure for carrying out the drive” // Ibid.

16. The law does not prohibit bailiffs to ensure the established procedure for the activities of courts from contacting the internal affairs body for assistance in carrying out the arrest.

17. See also commentary to Art. Art. 44, , 56 - 60, 111, 277 Code of Criminal Procedure of Russia.

Criminal procedural drive

 In the science of criminal procedure law, the most pressing problems are those related to ensuring individual rights when applying procedural coercive measures. A person subjected to state coercion in criminal proceedings must fulfill his obligation to follow the requirements of the law. At the same time, an official resorting to coercive means must correlate his actions with the provisions of the law and, based on its requirements, determine the necessity and validity of such an action.

Let's consider one of the measures of procedural coercion, such as a criminal procedural drive.

One of the coercive measures aimed at ensuring attendance is a criminal procedure drive. So, in case of failure to appear when called without good reason in accordance with Art. 113 of the Code of Criminal Procedure of the Russian Federation, a suspect, an accused, as well as a victim and a witness may be subjected to a summons - a forced delivery of a person to an interrogating officer, investigator, prosecutor or to court. The drive consists in the forced delivery of a suspect, accused, victim or witness who fails to appear without good reason when summoned by the indicated authoritative participants in criminal proceedings (parts 1 and 2 of Article 113 of the Code of Criminal Procedure of the Russian Federation).

In order to eliminate these obstacles in the conduct of inquiry, preliminary investigation and trial, the current Code of Criminal Procedure of the Russian Federation allows the use of such a compulsory measure as arrest, but only in relation to individual participants in the process - such in Article 113 of the Code of Criminal Procedure of the Russian Federation are the suspect, the accused, as well as the victim and witness .

The mechanism for implementing this coercive measure is provided for in Art. 113 of the Code of Criminal Procedure of the Russian Federation, as well as departmental instructions - the Instructions on the procedure for carrying out a seizure, approved by Order of the Ministry of Internal Affairs of Russia dated June 21, 2003 No. 438 [1] and the Procedure for carrying out a seizure by bailiffs to ensure the established procedure for the activities of courts, approved by Order of the Ministry of Justice of Russia dated July 13, 2016 No. 164 “On approval of the Procedure for bringing bailiffs to ensure the established procedure for the activities of courts” [2].

By its nature, the arrest is not a punitive, but a legal restoration sanction, since the forced delivery of a person who failed to appear before the investigator cannot be considered as punishment for the offense of failure to appear when summoned. It is carried out in order to restore the violated legal situation, to ensure the personal contact between the investigator and this person necessary to obtain evidence. In fact, we are talking about forced fulfillment of an obligation [3, p. 32].

Consequently, the essence of the drive lies precisely in the forced delivery of the suspect, accused, defendant, witness and victim to the official or to the court that summoned him. When it is carried out, coercion is manifested in the fact that a person, against his will, is taken to the right place.

The law provides for restrictions on the time of arrest and the subject composition of persons who may be subject to arrest.

As a general rule, driving at night is not allowed (i.e. from 10 p.m. to 6 a.m. local time), except in urgent cases (Part 5 of Article 113 of the Code of Criminal Procedure of the Russian Federation).

Not subject to drive:

– minors under the age of fourteen;

- pregnant women;

– patients who, for health reasons, cannot leave their place of stay, if this fact is certified by a doctor (Part 6 of Article 113 of the Code of Criminal Procedure of the Russian Federation);

The fact that these persons cannot be brought in does not mean that they cannot be involved in procedural actions (in the absence of other restrictions). Therefore, if these persons fail to appear, the investigator or interrogator must provide for the possibility of interrogating these persons or carrying out other investigative actions with their participation in another place (at school, at home, in a medical institution). At the same time, all rights of these persons must be strictly observed, and their protection from psychotraumatic and other adverse effects must be ensured [4, p. 132].

Also not subject to drive:

– heads of the investigative body and investigators of the Investigative Committee (Part 3 of Article 29 of the Federal Law “On the Investigative Committee of the Russian Federation”);

– prosecutors (Part 2 of Article 42 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”);

– employees of the Federal Security Service (FSO) and the FSB in the performance of their official duties (these officials can be brought in in the presence of representatives of the relevant authorities or by court decision (Part 1 of Article 20 of the Federal Law “On State Security”, Part 4 of Art. 17 Federal Law “On the Federal Security Service”).

The bringing of a person aged 14 to 16 years is carried out with notification of his legal representatives or the administration at the place of his work or study. A different procedure for bringing minors is allowed only in cases where this is stipulated in the resolution (definition) on the bringing (clause 3 of the Instructions on the procedure for carrying out the bringing) [5].

The actual basis for assigning a summons is the fact that a person failed to appear when called by the investigator without a good reason. It is necessary that the person be summoned by the preliminary investigation body or the court. The call must be made by summons, but recently a call made by telephone, including by sending an SMS message, has been considered legal.

Thus, the summoning of witnesses, victims, suspects, accused, as a rule, is carried out by a summons, which is a procedural document, and therefore gives rise to certain legal relations. Therefore, it must be signed by a person who has the right to summon citizens in connection with the investigation of a criminal case.

A summons is handed to the person who is summoned against a signature. A receipt for receipt of the summons is a guarantee of the appearance of the summoned person. When deciding on a summons, it serves as evidence that the person has been notified of the need to appear. Failure of a person to receive a summons should be regarded as an obstruction in establishing the truth in the case and may become the basis for bringing a summons against him.

So, the summons can be used if there is a set of data in the criminal case materials that: 1) the participant in the process knew that he was being summoned to the preliminary investigation authorities or to the court, as evidenced by the presence of a summons counterfoil with his signature, a receipt in the court protocol meetings, notification of the postal institution about the refusal to receive the summons, a report or protocol of interrogation of the courier (the person delivering the summons); 2) the participant in the process did not appear on time, which is confirmed by the protocol of the procedural action, a certificate; 3) there were no valid reasons for failure to appear. At the same time, the failure of a person to appear before an investigator or a judge without good reason led to negative consequences: the impossibility of conducting an investigative action or trial. The possibility of using a drive, as O. V. Balandyuk notes, is determined not by the number of calls, but by the fact of the non-appearance of the summoned person in the absence of good reasons [6, p.61].

Literature:

1. Order of the Ministry of Internal Affairs of Russia dated June 21, 2003 No. 438 “On approval of the Instructions on the procedure for carrying out the drive” // Bulletin of normative acts of federal executive authorities. - 2003. - No. 47.
2. Order of the Ministry of Justice of Russia dated July 13, 2016 No. 164 “On approval of the Procedure for bringing bailiffs to ensure the established procedure for the activities of courts” // Bulletin of normative acts of federal executive authorities. No. 33. 08/15/2016.
3. Chernova S.S. Measures of criminal procedural coercion: educational and practical guide. Tyumen: Tyumen Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia, 2015. P. 32.
4. Scientific and practical commentary on the Criminal Procedure Code of the Russian Federation / edited by. ed. V. M. Lebedeva; scientific ed. V. P. Bozhyev. M., 2014. P. 132.
5. Order of the Ministry of Internal Affairs of Russia dated June 21, 2003 No. 438 “On approval of the Instructions on the procedure for carrying out the drive” // Bulletin of normative acts of federal executive authorities. No. 47. November 24, 2003.
6. Balandyuk O. V. Execution of the criminal procedure // Legislation and practice. 2015. No. 2 (35). P. 61.

Another comment on Art. 113 Criminal Procedure Code of the Russian Federation

1. After notification of the impossibility of appearing, the burden of proving the irrelevance of the reasons for failure to appear, including illness certified by a doctor, lies with the official or body by whose resolution (determination) the summons is applied.

2. When carrying out a drive, excessive violence, insult and humiliation of the human dignity of the person subject to the drive is unacceptable.

3. If it is necessary to deliver a suspect at night to the body of inquiry or to an investigator, the drive is used only in urgent cases (these cases are not specified in the Code).

4. The arrest on the basis of the decision of the inquirer or investigator is carried out by the police, by decision of the court - by bailiffs.

5. Everyone has the right to compensation from the state for moral and property damage caused by illegal imprisonment (Article 53 of the Constitution of the Russian Federation).

What is the essence of the drive?

The essence of forcibly bringing a witness to an investigator in a criminal case is to bring the citizen to the investigator or to the court to provide evidence that may be extremely important for the investigation.

It occurs against the will of the person himself, but the employees using the drive cannot humiliate the honor and dignity of the citizen. They must fulfill their duties without causing physical harm to him or themselves.

When is it appointed?

This procedure is applied in cases where a person simply ignores subpoenas to an investigator or to court and does this at least twice. However, he does not have a clear justification for his action.

Arrest as a measure to ensure proceedings in a case of an administrative offense also takes place, and its use is regulated by Art. 27.15 Code of Administrative Offenses of the Russian Federation. It states that the measure is used in relation to these categories of persons:

• individuals;
• representatives of legal entities;
• representatives of citizens under 18 years of age;
• witnesses.

Who makes the drive

Bringing a witness to court in a criminal case is used by investigators or bailiffs. Before this, they present the citizen with a resolution in which he is obliged to sign, certifying that he has familiarized himself with this document.

If the drive is used in relation to persons
involved in administrative offenses, then it is executed:

• bailiffs;
• police officers.

After the executors of the decision find the citizen, he is transported to the official who applied for the arrest.

What is a drive

In accordance with the current legislation, the bringing of a person is carried out by forcibly delivering (escorting) the person to the place of summons by the initiator of the bringing - an investigator, an inquiry officer or a bailiff.

It should be noted that the drive can be used not only in relation to participants in criminal proceedings (suspect, accused, victim, witness), but also in relation to a civil plaintiff, civil defendant, expert, specialist, translator.

The drive is carried out on the basis of:

• decisions (rulings) of the court (judge),
• resolution of the bailiff, approved by the senior bailiff or his deputy,
• resolutions of the investigator of the Federal Bailiff Service.

Organization of execution by bailiffs

1. 1. The person responsible for office work registers the resolution (ruling) on ​​the arrest the next day after its receipt by the structural unit of the FSSP. The registration log is provided as an appendix to the Order of the Ministry of Justice.
2. 2. Then the decision on the arrest is transferred for execution to the senior bailiff or his deputy, who is responsible for organizing the maintenance of the established procedure for the activities of the courts (OUPDS).
3. 3. The senior bailiff or his deputy checks the arrest order to ensure that it contains the following data:

• Full name of the person to be brought;
• date and place of his birth;
• intended location;
• date, time and place where the person to be brought must be delivered.

1. 4. If the resolution does not contain the necessary data, the senior bailiff or his deputy informs the initiator of the summons about this.
2. 5. The senior bailiff or him entrusts the execution of the decision to bring the bailiff under the OUPDS.
3. 6. On the day of the arrest, the senior bailiff or his deputy determines and checks:

• gear, equipment, special means;
• uniform, the presence of badges and service certificates of bailiffs according to the OUPDS;
• resolves the issue of providing bailiffs for OUPDS with vehicles and, if necessary, military hand-held small arms and ammunition for them;
• conducts instructions taking into account the specific features of each drive.

Arbitrage practice

According to the Resolution of the Court in the Altai Territory, an eyewitness to the incident, who failed to appear twice when called by the investigator and interfered with the performance of official powers of the bailiff, was sentenced to a fine of 1,000 rubles.
This act was considered an administrative offense. Offender:

• obstructed the implementation of the duties of a bailiff;
• refused to appear when requested without providing valid reasons.

The Omsk Regional Court terminated proceedings in the case against a witness who failed to appear when summoned due to drinking alcoholic beverages. For this he was charged with an administrative offense, but the court declared it invalid and acquitted the citizen. If the trial court makes a decision on imputation of an offense, there is no guarantee that this decision will be subject to change by the higher court.

The court's decision to recognize as an administrative offense refusal or failure to appear when summoned to an investigator or to court as a participant or eyewitness to an incident depends on the actions of this person. From practice it is clear that anyone who resists and interferes with the performance of official duties of police officers or bailiffs pays a fine.