Unfortunately, the proverb “Don’t swear off money or prison” is still relevant today. Even if you are a law-abiding citizen, you may be detained on suspicion of committing a criminal offense.
In this situation, first of all, you need to calm down, and secondly, be sure to call a criminal lawyer. If among your friends there is no specialist of this profile, ask your relatives and friends to urgently find one for you. This is not a situation where you should skimp on legal assistance.
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Grounds for detention
Detention of a suspect is a measure of procedural coercion applied by the body of inquiry, inquiry officer or investigator from the moment of actual detention of a person on suspicion of committing a crime (Clause 11, Article 5 of the Code of Criminal Procedure).
The essence of detention is the short-term holding of a person in custody without the prior permission of the head of the investigative department, prosecutor or court.
Article 91 of the Code of Criminal Procedure of the Russian Federation provides grounds for detaining a suspect.
Article 112 of the Criminal Code of the Russian Federation – harm to health of moderate severity, long-term health disorder, significant permanent loss of general ability to work
The body of inquiry, the inquiry officer, the investigator has the right to detain a person on suspicion of committing a crime for which a sentence of imprisonment may be imposed in the following situations:
- When a citizen is caught committing a crime or immediately after it has been committed.
- When victims or eyewitnesses point to a specific citizen as the one who committed the crime.
- When obvious traces of a crime are found on this person or his clothing, on him or in his home.
If one of the grounds is present, the citizen may be detained.
Suspect Detention
The question of the nature, essence and content of the detention of a suspect has been and remains hotly debated in the legal literature and in the practice of its application. Some authors believe that the detention of a suspect is a measure of procedural coercion <1>; others - investigative action aimed at collecting, checking and evaluating evidence <2>; still others are both a coercive measure and an investigative action <3>. It seems that the detention of a suspect is integrative in nature, combining elements of coercion and investigative action.
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<1> See: Criminal trial. General part / Sub scientific. ed. V.Z. Lukashevich. St. Petersburg, 2004. P. 312, etc.
<2> See: Geldibaev M.Kh. Criminal process. St. Petersburg, 2001. P. 90, etc.
<3> See: Vandyshev V.V. and others. Criminal process. St. Petersburg, 1996. P. 1, 70, etc.
It seems that the detention of a suspect is a complex measure of influence on a person, combining elements of coercion and investigative action and consisting of short-term restriction of freedom in the absence of a court decision for up to 48 hours and with the right to extend it by a district court judge, but not more than 72 hours , with the placement of a person suspected of committing a crime in a temporary detention center (IVS).
The general condition for the detention of a suspect in accordance with Art. 91 of the Code of Criminal Procedure is a suspicion that this person has committed a crime, for which, in accordance with the criminal law, a punishment in the form of imprisonment can be imposed.
The subjects of detention of citizens on suspicion of committing a crime are:
1) the body of inquiry;
2) investigator;
3) investigator.
The grounds for detaining a suspect are information indicating possible involvement in the commission of a crime.
A person may be detained if one of the following grounds exists:
1) when this person is caught committing a crime or immediately after its commission. A textbook example of a detention on this basis is the discovery of a person in a room in which the security alarm has gone off;
2) when victims or eyewitnesses point to this person as having committed a crime. On this basis, persons suspected of committing so-called street or domestic crimes are usually detained;
3) when obvious traces of a crime are found on this person (meaning the person’s body as a whole) or his clothing, on him or in his home. Most often, this basis is used to detain persons suspected of committing illegal trafficking in firearms, ammunition, explosives or explosive devices, narcotic drugs or psychotropic substances.
If there is other data giving grounds to suspect a person of committing a crime (for example, if there is a verbal portrait), he may be detained if:
1) tried to escape;
2) does not have a permanent place of residence;
3) his identity has not been established;
4) may be taken into custody in connection with the sending by the investigator, with the consent of the head of the investigative body, or by the inquiry officer, with the consent of the prosecutor, to the court of a petition for the election of this preventive measure against the specified person. A typical example of the detention of persons on this basis is the establishment of their identity based on the instructions of the preliminary investigation authorities.
The motives for detaining a suspect are to achieve law-restrictive goals in the interests of solving the problems of the criminal process. These include stopping that person from trying to:
1) hide from the preliminary investigation authorities or the court;
2) prevent the establishment of objective truth in a criminal case by threatening a witness and other participants in the criminal process, destroying traces of the crime, etc.;
3) continue criminal activity in the future;
4) prevent the execution of a conviction.
Procedural registration of detention consists of drawing up a protocol of detention of a person, the form and content of which must meet the requirements of Art. 166 and 167 Code of Criminal Procedure.
In accordance with Art. 92 of the Code of Criminal Procedure, after the delivery of a person suspected of committing a crime to the body of inquiry or to the investigator, within a period of no more than three hours, a protocol on the arrest of the suspect must be drawn up, signed by the person who compiled it and by the detainee.
The protocol must contain information about:
1) date and time of drawing up the protocol;
2) date, time, place, grounds and motives for detention;
3) the results of a personal search carried out in accordance with Art. 93 and 184 Code of Criminal Procedure;
4) explaining to the suspect the rights provided for in Art. 46 of the Code of Criminal Procedure, certified by his signature;
5) other actual circumstances of detention, for example attempts to escape or resistance.
The body of inquiry, the inquiry officer or the investigator must notify the prosecutor in writing about the arrest within 12 hours from the moment the suspect was detained.
The suspect must be questioned in accordance with the requirements of Part 2 of Art. 46, art. 189 and 190 Code of Criminal Procedure.
Before the interrogation of a person suspected of committing a crime, at his request, he is provided with a private and confidential meeting with a defense lawyer. If it is necessary to carry out investigative actions with the participation of a suspect, the duration of a meeting of more than two hours may be limited by the inquiry officer or investigator with mandatory prior notification of this to the suspect and his defense attorney.
Thus, the criminal procedural detention of a suspect is a complex action in its content, consisting of:
1) actual detention (or capture) aimed at immediately delivering a person for trial;
2) delivering the person, usually to the internal affairs bodies , which are obliged to directly deal with the offender and his act;
3) administrative-legal detention for a period of up to three hours, the purpose of which is the investigation of an official with the person brought in regarding an act committed by him with signs of a crime or other offense. Within its framework, the official must:
a) receive statements, explanations or reports from the persons who delivered the offender outlining the circumstances of the actual detention and the grounds for the delivery of the person;
b) establish the identity of the person brought for trial;
c) receive an explanation from the delivered person regarding the actual detention;
d) determine from the documents received and compiled whether the act contains signs of a crime or other offense;
e) decide on the need to immediately initiate a criminal case;
f) make a decision, if a criminal case has been initiated, to procedurally detain the person delivered or take away his obligation to appear or to apply a preventive measure to him that is not related to placement in a specialized institution;
4) actual criminal procedural detention , the essence and content of which lies in the placement of the detained person in a temporary detention facility.
The procedure and conditions for keeping suspects in a special institution are regulated by Federal Law No. 103-FZ of July 15, 1995 “On the detention of suspects and accused of committing crimes” <1>. If it is necessary to carry out operational-search activities, operational workers have the right to meet with the detainee with the written consent of the interrogating officer or investigator (Article 95 of the Code of Criminal Procedure).
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<1> Northwestern Russian Federation. 1995. N 29. Art. 2759.
According to Art. 96 of the Code of Criminal Procedure, the inquiry officer or investigator, within 12 hours from the moment of actual detention, is obliged to notify:
1) about the detention of one of the relatives of the suspect or to provide the opportunity for such notification to the suspect;
2) about the arrest by the command of a military unit, if a serviceman is suspected of committing a crime;
3) embassy or consulate of a foreign state, if the suspect is its citizen or subject.
If it is necessary to keep secret the fact of detention of an adult suspect in the interests of the investigation, notification of the relevant persons with the consent of the prosecutor may not be carried out (Article 96 of the Code of Criminal Procedure).
The suspect is subject to release by order of the inquiry officer or investigator if:
1) the suspicion of committing a crime has not been confirmed;
2) there are no grounds for applying a preventive measure in the form of detention;
3) the detention was carried out in violation of the requirements of Art. 91 Code of Criminal Procedure.
After 48 hours from the moment of detention, the suspect is subject to release if:
1) the court did not choose a preventive measure in the form of detention or
2) the court did not extend the period of detention of the suspect.
If a judge’s decision to apply a preventive measure to the suspect in the form of detention or to extend the period of detention is not received within 48 hours from the moment of actual detention, then the suspect must be immediately released by a decision of the head of the place of detention. He is obliged to notify the body of inquiry or the investigator and the prosecutor about his decision.
Upon release, the person is given a certificate indicating who detained him; date, time, place and grounds of detention; date, time and reasons for release. If in the case there is a court decision refusing to satisfy the request of the inquirer or investigator to choose a preventive measure in the form of detention, then a copy of this decision is also given to the person upon release (Article 94 of the Code of Criminal Procedure).
The question of the nature, essence and content of the detention of a suspect has been and remains hotly debated in the legal literature and in the practice of its application. Some authors believe that the detention of a suspect is a measure of procedural coercion <1>; others - investigative action aimed at collecting, checking and evaluating evidence <2>; still others are both a coercive measure and an investigative action <3>. It seems that the detention of a suspect is integrative in nature, combining elements of coercion and investigative action.
———————————
<1> See: Criminal trial. General part / Sub scientific. ed. V.Z. Lukashevich. St. Petersburg, 2004. P. 312, etc.
<2> See: Geldibaev M.Kh. Criminal process. St. Petersburg, 2001. P. 90, etc.
<3> See: Vandyshev V.V. and others. Criminal process. St. Petersburg, 1996. P. 1, 70, etc.
It seems that the detention of a suspect is a complex measure of influence on a person, combining elements of coercion and investigative action and consisting of short-term restriction of freedom in the absence of a court decision for up to 48 hours and with the right to extend it by a district court judge, but not more than 72 hours , with the placement of a person suspected of committing a crime in a temporary detention center (IVS).
The general condition for the detention of a suspect in accordance with Art. 91 of the Code of Criminal Procedure is a suspicion that this person has committed a crime, for which, in accordance with the criminal law, a punishment in the form of imprisonment can be imposed.
The subjects of detention of citizens on suspicion of committing a crime are:
1) the body of inquiry;
2) investigator;
3) investigator.
The grounds for detaining a suspect are information indicating possible involvement in the commission of a crime.
A person may be detained if one of the following grounds exists:
1) when this person is caught committing a crime or immediately after its commission. A textbook example of a detention on this basis is the discovery of a person in a room in which the security alarm has gone off;
2) when victims or eyewitnesses point to this person as having committed a crime. On this basis, persons suspected of committing so-called street or domestic crimes are usually detained;
3) when obvious traces of a crime are found on this person (meaning the person’s body as a whole) or his clothing, on him or in his home. Most often, this basis is used to detain persons suspected of committing illegal trafficking in firearms, ammunition, explosives or explosive devices, narcotic drugs or psychotropic substances.
If there is other data giving grounds to suspect a person of committing a crime (for example, if there is a verbal portrait), he may be detained if:
1) tried to escape;
2) does not have a permanent place of residence;
3) his identity has not been established;
4) may be taken into custody in connection with the sending by the investigator, with the consent of the head of the investigative body, or by the inquiry officer, with the consent of the prosecutor, to the court of a petition for the election of this preventive measure against the specified person. A typical example of the detention of persons on this basis is the establishment of their identity based on the instructions of the preliminary investigation authorities.
The motives for detaining a suspect are to achieve law-restrictive goals in the interests of solving the problems of the criminal process. These include stopping that person from trying to:
1) hide from the preliminary investigation authorities or the court;
2) prevent the establishment of objective truth in a criminal case by threatening a witness and other participants in the criminal process, destroying traces of the crime, etc.;
3) continue criminal activity in the future;
4) prevent the execution of a conviction.
Procedural registration of detention consists of drawing up a protocol of detention of a person, the form and content of which must meet the requirements of Art. 166 and 167 Code of Criminal Procedure.
In accordance with Art. 92 of the Code of Criminal Procedure, after the delivery of a person suspected of committing a crime to the body of inquiry or to the investigator, within a period of no more than three hours, a protocol on the arrest of the suspect must be drawn up, signed by the person who compiled it and by the detainee.
The protocol must contain information about:
1) date and time of drawing up the protocol;
2) date, time, place, grounds and motives for detention;
3) the results of a personal search carried out in accordance with Art. 93 and 184 Code of Criminal Procedure;
4) explaining to the suspect the rights provided for in Art. 46 of the Code of Criminal Procedure, certified by his signature;
5) other actual circumstances of detention, for example attempts to escape or resistance.
The body of inquiry, the inquiry officer or the investigator must notify the prosecutor in writing about the arrest within 12 hours from the moment the suspect was detained.
The suspect must be questioned in accordance with the requirements of Part 2 of Art. 46, art. 189 and 190 Code of Criminal Procedure.
Before the interrogation of a person suspected of committing a crime, at his request, he is provided with a private and confidential meeting with a defense lawyer. If it is necessary to carry out investigative actions with the participation of a suspect, the duration of a meeting of more than two hours may be limited by the inquiry officer or investigator with mandatory prior notification of this to the suspect and his defense attorney.
Thus, the criminal procedural detention of a suspect is a complex action in its content, consisting of:
1) actual detention (or capture) aimed at immediately delivering a person for trial;
2) delivering the person, usually to the internal affairs bodies , which are obliged to directly deal with the offender and his act;
3) administrative-legal detention for a period of up to three hours, the purpose of which is the investigation of an official with the person brought in regarding an act committed by him with signs of a crime or other offense. Within its framework, the official must:
a) receive statements, explanations or reports from the persons who delivered the offender outlining the circumstances of the actual detention and the grounds for the delivery of the person;
b) establish the identity of the person brought for trial;
c) receive an explanation from the delivered person regarding the actual detention;
d) determine from the documents received and compiled whether the act contains signs of a crime or other offense;
e) decide on the need to immediately initiate a criminal case;
f) make a decision, if a criminal case has been initiated, to procedurally detain the person delivered or take away his obligation to appear or to apply a preventive measure to him that is not related to placement in a specialized institution;
4) actual criminal procedural detention , the essence and content of which lies in the placement of the detained person in a temporary detention facility.
The procedure and conditions for keeping suspects in a special institution are regulated by Federal Law No. 103-FZ of July 15, 1995 “On the detention of suspects and accused of committing crimes” <1>. If it is necessary to carry out operational-search activities, operational workers have the right to meet with the detainee with the written consent of the interrogating officer or investigator (Article 95 of the Code of Criminal Procedure).
———————————
<1> Northwestern Russian Federation. 1995. N 29. Art. 2759.
According to Art. 96 of the Code of Criminal Procedure, the inquiry officer or investigator, within 12 hours from the moment of actual detention, is obliged to notify:
1) about the detention of one of the relatives of the suspect or to provide the opportunity for such notification to the suspect;
2) about the arrest by the command of a military unit, if a serviceman is suspected of committing a crime;
3) embassy or consulate of a foreign state, if the suspect is its citizen or subject.
If it is necessary to keep secret the fact of detention of an adult suspect in the interests of the investigation, notification of the relevant persons with the consent of the prosecutor may not be carried out (Article 96 of the Code of Criminal Procedure).
The suspect is subject to release by order of the inquiry officer or investigator if:
1) the suspicion of committing a crime has not been confirmed;
2) there are no grounds for applying a preventive measure in the form of detention;
3) the detention was carried out in violation of the requirements of Art. 91 Code of Criminal Procedure.
After 48 hours from the moment of detention, the suspect is subject to release if:
1) the court did not choose a preventive measure in the form of detention or
2) the court did not extend the period of detention of the suspect.
If a judge’s decision to apply a preventive measure to the suspect in the form of detention or to extend the period of detention is not received within 48 hours from the moment of actual detention, then the suspect must be immediately released by a decision of the head of the place of detention. He is obliged to notify the body of inquiry or the investigator and the prosecutor about his decision.
Upon release, the person is given a certificate indicating who detained him; date, time, place and grounds of detention; date, time and reasons for release. If in the case there is a court decision refusing to satisfy the request of the inquirer or investigator to choose a preventive measure in the form of detention, then a copy of this decision is also given to the person upon release (Article 94 of the Code of Criminal Procedure).
The procedure for detention according to the Code of Criminal Procedure of the Russian Federation
In accordance with Article 92 of the Code of Criminal Procedure of the Russian Federation, the procedure for detaining citizens is as follows:
- The citizen is delivered to the body of inquiry or to the investigator within 3 hours from the moment the crime was committed.
- There they draw up a protocol in which it is noted that the rights provided for by Article 46 of the Code of Criminal Procedure of the Russian Federation (Part 1 of Article 92 of the Code of Criminal Procedure of the Russian Federation) have been explained to the suspect.
- If the defender of a suspected citizen participates in criminal proceedings from the moment of actual detention, then his participation in drawing up a protocol of detention is mandatory (Part 1.1 of Article 92 of the Code of Criminal Procedure of the Russian Federation).
- The protocol indicates the date and time of drawing up the protocol, the date, time, place, grounds and motives for the detention of the suspect, the results of his personal search and other circumstances of his detention (Part 2 of Article 92 of the Code of Criminal Procedure of the Russian Federation).
- The arrest report is signed by the person who compiled it and the suspect.
- Then the body of inquiry, the inquiry officer or the investigator informs the prosecutor in writing about the arrest. The time for filing a report is 12 hours from the moment of detention of the suspect (Part 3 of Article 92 of the Code of Criminal Procedure of the Russian Federation).
Please note that the suspect must be interrogated within 24 hours from the moment of his actual arrest and in accordance with the general interrogation rules of Article 189-190 of the Code of Criminal Procedure of the Russian Federation.
Before the start of the interrogation, the suspect, at his request, is provided with a private and confidential meeting with a defense lawyer. The duration of the date can be 2 hours, no more and no less. The inquiry officer or investigator can limit the time for talking with a lawyer or defense attorney.
Also, during detention, the suspect may be subjected to a personal search in the manner prescribed by Article 184 and Article 93 of the Code of Criminal Procedure of the Russian Federation.
Stages of detention
Like any investigative action, the process of detaining a suspect consists of several stages:
- preparation for arrest;
- capture of a suspect and seizure of evidence;
- recording the results of the arrest.
Preparing for detention
Detention with preliminary preparation is possible in situations where there is evidence of the involvement of a specific person in the crime committed, obtained as a result of analysis of the materials of the criminal case and other sources of information.
Having made a decision to detain, the investigator must first determine the objectives of this investigative action. Only after this can you begin preparing for detention.
It is advisable to divide the preparatory stage into two substages:
- actions before leaving for the place of detention;
- actions carried out from the moment the group leaves until the physical capture of the suspect.
The first substage includes the following actions:
1. Collection of information about the person subject to detention.
The investigator, as a rule, is interested in information about the basic personal data of the detainee, including information about the profession and place of work, criminal record, lifestyle and connections, whether he has security, weapons and the degree of his aggressiveness, relationships with family members and neighbors, his routine days, routes and means of transportation. If possible, it is necessary to obtain and reproduce photographs of the detainee.
2. Choosing the place and time of detention.
You should study the situation in the place where the arrest is planned in advance. The place and time of detention must meet the following conditions: they must be favorable in order to paralyze the suspect’s possible resistance or attempt to escape; be optimal for detecting evidentiary information in a criminal case from a detainee (for example, the subject of a bribe, stolen items, drugs); meet safety requirements for both group members and outsiders. Such places include open, deserted or sparsely populated areas, entrances to houses, and courtyards. At the same time, in such places it should be possible to hide the capture group. On the contrary, the least favorable places for detention are crowded places (busy squares, cinemas, cafes, banks, etc.), where there are many nearby buildings, difficult-to-pass areas, barns and other objects. In some situations, the participants in the arrest must “act out” the corresponding reenactment: “vacationing citizens”, “couple in love”, “ambulance crew”, etc.
The optimal time for detention is determined by the specific investigative and operational search situation. Knowledge of the situation at the scene of this investigative action is of great importance for organizing the arrest. To study it, it is advisable to conduct a special reconnaissance. Depending on where the detention is to be carried out, various elements of buildings, courtyards, terrain, and transport communications are subject to study.
So, if a decision is made to detain a person in a premises, then the work schedule, the layout of the premises, the number of entrances and exits, and possible hiding places are studied. It is necessary to obtain information about the presence of people in the premises and their possible reaction to the actions of the task force. When a person is detained on the street, the approaches, entrances, passageways, traffic intensity of city transport and pedestrians are examined.
The choice of place and time of detention of persons belonging to criminal groups depends on the number of detainees. All members of the group should be detained at the same time, if possible, but in different places in order to create for these individuals a situation of “information uncertainty” about who was detained, under what circumstances it happened and what evidence was discovered. When only one member of the group is detained, the investigator must take all possible measures to ensure that the other accomplices learn about the fact of his detention as late as possible.
3. Formation of the composition of participants in the arrest.
The number of members of the detention group depends on the number of persons detained, their weapons, the place of detention, and the nature of the crime committed. One group can participate in the detention - the actual capture. And other groups may also be involved - cordoning, blocking, covering, etc. The size of the capture group is regulated by the regulatory documents of the Russian Ministry of Internal Affairs. Thus, to detain one armed criminal, a capture group of three to four people is usually appointed. If the detainees can offer physical resistance using edged weapons (attack objects), then the composition of the task force is determined at the rate of at least two police officers per detainee, as well as those who cover them and block the place of detention. When detaining one person who does not pose a threat, the operation may be entrusted to official personnel or individual law enforcement officers.
In addition, in order to urgently conduct a personal search, the circle of participants in the arrest must include operational officers of different genders. It is advisable to include a forensic expert in the arrest team, but he should not take part in the physical capture of the person.
4. Preparation of scientific and technical means, weapons and transport.
First of all, we are talking about photo, video and other technical means of recording evidentiary information. The use of video recording allows us to most fully capture and preserve the information obtained during this complex and dynamic investigative action.
The specialist must be located in such a place that neither he nor his actions related to recording the arrest can be noticed by the criminal. The recommendation to install a video camera at a point that would ensure constant recording of the object during observation and detention is justified.
Participants in the arrest are armed with service weapons; in addition, their equipment may include rubber sticks, handcuffs, binoculars, walkie-talkies, as well as personal protective equipment - body armor, shields, helmets, etc. The group is provided with vehicles for mobile movement, pursuit and delivery of detainees to the office premises of the internal affairs bodies. The provision of these funds depends on the number and nature of the groups created and the tasks assigned to them.
5. Invitation of witnesses.
In Part 3 of Art. 184 of the Code of Criminal Procedure states that a personal search of a person is carried out only by a person of the same sex, in the presence of witnesses and specialists of the same sex, if they participate in this investigative action. In situations where a personal search is carried out long after the arrest and not at the place of arrest, suspects may claim that the items found and seized from them were planted by law enforcement officers. Therefore, for tactical reasons, it is advisable to invite witnesses to participate in the personal search to the place of detention. In this regard, the recommendation that witnesses be able to observe the entire detention process is justified. In the future, the testimony of such witnesses will help the investigator neutralize false statements by suspects about provocations by law enforcement officers.
However, the participation of witnesses in making sudden arrests, as well as in detaining armed criminals, cannot be ensured. Nevertheless, it is necessary to remember the prohibition of participation as witnesses by law enforcement officers, court officials and the legal profession.
6. Instructing participants in detention.
At the final stage of preparation, the leader must brief the persons included in the detention team. Participants in this investigative action are provided with information about the detained persons (their signs, degree of aggressiveness, possible disguise), place, time and individual details of the detention. Then the functions of each group member, possible situations of detention and actions in the conditions of each of them are determined. In the future, an acquaintance with the place of the upcoming detention takes place.
Finally, immediately before the arrest, it is recommended to check the level of readiness of the participants, whether they have the required equipment, and work out the details of the interaction. One of the main factors in the effectiveness of the upcoming detention is the conduct of preparatory measures in conditions of strict secrecy, preventing information leakage.
7. Drawing up a detention plan.
The plan must reflect the preparatory actions, performers and deadlines for the implementation of the planned activities. If time and technical capabilities are available, it is necessary to provide for practicing capture actions on mock-ups. When detaining a group of armed criminals, this recommendation is especially appropriate. The detention plan usually provides for several options depending on possible changes in the situation.
Preparatory activities prior to the physical capture of a suspect
The need to highlight this substage is primarily due to ensuring the safety of not only the group members, but also the detainee himself. This sub-stage includes the following actions:
1) blocking the territory adjacent to the place of detention;
2) surveillance of the suspect;
3) carrying out distracting activities.
The blocking of the territory is carried out in order to restrict access to citizens, as well as persons trying to enter the detention zone or leave it without authorization. As a rule, the cordon is carried out simultaneously with the start of the detention. Preliminary blocking of a territory is usually carried out in cases where the fact of the seizure has become public. The area is cordoned off by the blocking team.
Once the suspect is identified, the capture team monitors his behavior and actions. Surveillance makes it possible to promptly prevent a suspect from attempting to escape, resisting, or trying to get rid of incriminating evidence. In addition, surveillance contributes to the selection of a convenient place of detention and tactical methods for its implementation. Surveillance (to a greater or lesser extent) must be carried out in any detention situation.
Carrying out distracting activities contributes to the success of physically capturing a suspect. In order to divert the attention of the person to be detained, an operational officer can, for example, address the suspect with a personal question, and without waiting for an answer, the capture team carries out the arrest. In some cases, detention is given the appearance of checking documents, clarifying some misunderstanding, etc. Diversionary activities may involve paralyzing the detainee’s will and ability to resist. For these purposes, it is permissible to use various special means of light and sound effects (for example, “Flame”, “Zarya”).
Capturing a suspect and seizing evidence from him
The effectiveness of physical capture depends on the use of the following tactics:
- the capture of the suspect must be sudden;
- the seizure must be carried out in conditions that maximally ensure the safety of the participants in the arrest, strangers and the suspect himself;
- the capture must be carried out in conditions of obvious numerical and physical superiority in relation to the detained persons;
- participants in the capture must have the opportunity, if necessary, to immediately receive reinforcements;
- the use of hand-to-hand combat techniques, special means or weapons during the capture must be aimed at excluding any attempts by the detainee to resist or destroy the evidence on him.
It must be remembered that the most important task when carrying out any procedural action, including arrest, is obtaining evidence. However, during a seizure, suspects typically try to get rid of evidence. To obtain evidentiary information during an arrest, actions aimed at detecting and confiscating incriminating objects or documents from a suspect are of great importance. In some cases, the specified evidence is seized directly during the physical seizure, since it is in the hands of the detainee (for example, the person is using a drug, holding a weapon in his hand, etc.) and therefore is not included in the content of the personal search and is reflected in the arrest report. If incriminating evidence is hidden, it is discovered during a body search, which is advisable to conduct immediately after the physical seizure of the person.
Personal search of the detainee
Main article:
Personal search.
A personal search is carried out to search for items that incriminate the detainee of committing a crime, as well as objectively confirming the circumstances of the detention. This action must be carried out at the place of capture, and then carried out again after the person is delivered to the internal affairs bodies or other premises.
A personal search of citizens is carried out on the basis and in the manner established by Parts 1, 3 of Art. 182 and art. 184 Code of Criminal Procedure. A personal search without issuing a separate order and without court permission (in accordance with Part 2 of Article 184 of the Code) can be carried out:
- upon arrest or detention;
- if there are reasonable grounds to believe that a person who is in the premises or other place being searched is hiding objects or documents that may be important for the criminal case.
The purpose of a personal search is to detect material evidence and documents, drugs, weapons, explosive devices and other prohibited objects.
A personal search of a person at the place of detention consists of “probing” the body and clothing over the entire surface. The examination is carried out from top to bottom - once, and then the same operation is repeated, but from bottom to top. All objects discovered during a personal search are immediately confiscated. It is advisable to carry out a repeated or additional personal search, accompanied, as a rule, by exposing the body of the person being searched, in the office premises where the detained person is taken (duty station, investigator’s office, room for detainees at the duty station of the Department of Internal Affairs, FSB of Russia, etc.). After completing the personal search of the detainee, it is advisable to conduct an examination of this premises, the vehicle in which the detainee was transported, since there are frequent cases of these persons getting rid of evidence in these vehicles or premises (they quietly throw away things and documents, hide them under seats, rugs and etc.).
Personal search in accordance with Part 3 of Art. 184 of the Code of Criminal Procedure can only be carried out by a person of the same sex as the person being searched, with the participation of witnesses, specialists and interpreters of the same sex as the person being searched.
The conduct of a personal search is divided into three stages: preparatory, search and final.
The person being searched is asked to voluntarily hand over the items (documents) to be confiscated. Then the investigator begins the search. The person must stand up, leave everything in his hands, raise his hands up, turn his back to the searcher and take a position that excludes the possibility of a sudden attack (resistance). So, the person being searched must spread his legs wide apart and lean his arms wide apart on any obstacle (vehicle body, wall, etc.). In this case, his legs should be at a considerable distance from the obstacle. Recently, a different method has been practiced: the suspect is laid face down on the ground (floor). At the same time, he holds his hands clasped above his head. Then the person being searched is asked to voluntarily give up all the items on him: personal items, weapons, drugs, documents, valuables, etc.
The search stage of a personal search is carried out in the following sequence: from top to bottom (can be done vice versa), i.e. First, the headdress (beret, hat, cap, cap, bonnet, etc.), hair, wigs, ears, mouth, and then clothing are searched. For a more thorough examination of hats, clothing and shoes, the person being searched is asked to remove his hat, outerwear, underwear, socks, and shoes. When examining hats, they probe, and if necessary, open the visors, separate the lining, fur, etc. Inspection of clothing includes examining the pockets and carefully palpating each area. Particular attention should be paid to those places of clothing where there is double fabric (belts, collars, cuffs), since documents, items made of precious stones, etc. can be hidden between these layers. When examining shoes, inspect the places under the insoles, in the heels, under the overlays of socks . Check to see if the heel is separated, which may contain voids inside. The personal belongings of the person being searched, which are on or with him (for example, handbags, handkerchiefs, gloves, cases for glasses, cell phones, suitcases, cases, shopping bags, etc.), in which hiding places can be arranged, are also carefully inspected. Detection and seizure during a personal search can be carried out both on the body and in the body of the person being searched.
Moreover, examination and seizure of a person’s body can only be carried out under certain conditions: if penetration into the body is not accompanied by causing harm to the person being searched that is not provided for by law; if natural and other openings in the human body are examined.
During a personal search, if the person being searched does not obey the decision of the investigator (interrogating officer, etc.), coercion may be used. The possibility of using violence against the person being searched is justified by the purposes of the search.
All actions related to a personal search must be documented in a uniform procedural document. Objects discovered during the search are seized and packaged in such a way that they can later be examined and examined using various technical means. The protocol must indicate the general and specific characteristics of the seized objects, their specifics, etc. It should be remembered that all actions for the seizure and packaging of objects are carried out in the presence of witnesses, with the involvement of relevant specialists. If during a personal search there were attempts to destroy or hide objects (documents) or facts of violation of order on the part of the person being searched or other persons, then this is indicated in the protocol along with the measures taken.
Recording the results of detention
To preserve the evidentiary value of the information obtained, it is necessary to record it completely and accurately. The successful investigation of a criminal case often depends on this.
The detention must be documented in a protocol that indicates the grounds and motives for the detention, the place, time, persecution actions and other circumstances of the detention (for example, red-handed), as well as information about whether the suspect offered resistance and how he behaved during the detention.
Photographs of the place and environment where the arrest took place can serve as an appendix to the protocol.
The existing procedure in operational investigative practice, in which the detention protocol serves only as a documentary basis for placing a person in a temporary detention facility, largely makes it impossible to use this document to record the circumstances of the suspect’s detention. In addition, the arrest report in most cases is drawn up on the premises of the internal affairs agency, which excludes a direct reflection in it of the situation and traces left at the place of arrest. Evidentiary information in this situation should be recorded in the protocols of interrogation of victims and witnesses, and, if necessary, of the person who made the arrest.
However, we must remember that investigative actions can be carried out even after the initiation of a criminal case. In practice, the seizure of a person is often carried out when a crime is directly detected, when the issue of initiating a criminal case has not yet been resolved and investigative actions, other than inspection of the scene of the incident and examination, are, as a general rule, unacceptable. To avoid loss or distortion of information about the circumstances of the suspect’s detention, it is necessary to record them immediately, without waiting for the initiation of a criminal case. For this purpose, other methods of recording may be used: detention protocols, reports, acts, the preparation of which is not related to the use of the specified measure of procedural coercion. If properly processed, they can be used as evidence.
Detention periods - why can a criminal be released?
In the event that a person is caught at the scene of a crime, or eyewitnesses point to him as the person who committed the crime, or obvious traces of a crime are found on him or his clothes in his home, this person may be detained on suspicion of committing a crime for a term of 48 hours.
In addition, a person may be detained for the same period and in the same manner if he commits a crime, if he does not have a permanent place of residence, tried to escape, or his identity has not been established.
The period of detention is calculated from the moment of actual detention of the person, which means the moment the citizen is deprived of freedom of movement. If before this the citizen was detained administratively, for example, to establish an identity, then the time of administrative detention is included in the period of detention as a suspect and the general period of detention (that is, the same 48 hours). Then the time of detention will be calculated from the moment the person was detained administratively.
Assistance from a lawyer during detention
One of the most fundamental rights of a detainee is the right to obtain legal assistance. Although a citizen has the right to a lawyer from the moment of actual detention by the police, its practical implementation is possible after a certain period of time. As a rule, the relatives of the detainee deal with the search for a criminal lawyer: in our country, unfortunately, most citizens do not have contacts of trusted defense lawyers. Therefore, it may take several hours before a lawyer gets involved in the case.
What exactly is the assistance of a lawyer when detained by the police?
- The lawyer explains to the Client his rights and obligations, explains the algorithm of actions during arrest, and even provides psychological support.
- The defense attorney studies the arrest report and makes his comments (if any) into it.
- The lawyer, alone with the suspect in an atmosphere of confidentiality, agrees on tactics during interrogation. The defense attorney tells you what questions the investigator or interrogator may ask, how to answer them correctly, and also in what cases it is better to remain silent. The right to a meeting between a lawyer and a detainee is enshrined in Part 4 of Article 92 of the Code of Criminal Procedure of the Russian Federation .
- The lawyer is present during the interrogation of the detainee: in particular, the lawyer has the right to give his Client brief consultations, ask him questions (with the consent of the interrogator or investigator), ensure that the citizen’s rights are respected, and also make his comments in the interrogation protocol.
- The defense attorney will prepare a reasoned request for the release of the detainee.
- The lawyer will prepare complaints (including to the court) against the actions (inactions) of law enforcement officers. For example, most often lawyers file complaints about the unjustified use of physical force when detaining an individual.
- The lawyer will prepare the Principal and himself to prepare for the court's consideration of the petition to take the citizen into custody.
- If the criminal case or prosecution against the detainee is terminated, the lawyer will provide assistance in the rehabilitation process in order to compensate for harm in connection with the unjustified detention.
Get a lawyer's protection
So, to summarize the above, it can be noted that when detained by the police, a criminal lawyer is not just needed, but necessary. Citizens deprived of qualified legal support may be subjected to psychological, physical violence and various types of falsification: ultimately, this will lead to the fact that law enforcement officers will obtain the testimony they need from the detainee. Do not aggravate your situation: ask your relatives to call you a lawyer as soon as possible.
Specialists of JSC “Trial Advocate” are ready to come to your aid around the clock, including on holidays and weekends!
