The citizen who committed the crime must be punished. However, in order to imputable sanctions to him, he must first be detained. The authorized employees produce detention in the order of Art. 91 of the Code of Criminal Procedure. Let's consider further features of the norm.
The grounds for restricting freedom in the manner of art. 91 of the Code of Criminal Procedure
An investigator / inquiry officer may detain a citizen suspected of an unlawful act for which imprisonment is provided, when:
- This subject is caught when the action is taken directly or immediately after it.
- Eyewitnesses / victims will point to this citizen as being implicated in the act.
- On the face, clothes, with him, in his home were found traces, clearly indicating the commission of this person encroachments.
One of the above circumstances is sufficient for detention.
Additionally
In the second part of Article 91 it is provided that, in the event that there is evidence suggesting the involvement of a citizen in a crime, he may be detained if:
- tried to hide;
- he does not have a permanent place of residence;
- his identity is not established;
- a petition for imprisonment has been sent to him.
Art. 91 of the Code of Criminal Procedure with comments
Restriction of the freedom of a citizen suspected of involvement in an encroachment is one of the procedural measures of coercion. It is mentioned in Article 5 of the Code. According to paragraph 11 of this standard, term of detention under art. 91 of the Code of Criminal Procedure - no more than 48 hours. The flow of this period begins from the moment of the actual compulsory restriction of the subject's freedom.
It should be noted that the possibility of limitingrights to personal integrity and freedom are provided for in the Constitution. As it is established in Part 2 of Article 22 of the Basic Law, imprisonment and detention are allowed only by judicial decision. Prior to its adoption, a person's freedom may be limited by applying Art. 91 of the Code of Criminal Procedure for a period of not more than 2 days.
Конституция, предусматривая возможность applying the measure of restraint to the subject, linking it to the need to protect the constitutional order, the state, the population, the health of other citizens, their interests and rights, does not fix the specific grounds, procedures and conditions under which detention is allowed, referring the matter to the competence of the federal legislator.
Nuances
The norms of the Criminal Procedural Code, which establish the rules for detention, do notintroduce any restrictions that go beyond the Constitution. On the contrary, according to experts, the articles of the Code significantly reduce the possibility of their application.
The moment of the actual compulsory restrictionfreedom of the subject is considered the moment of deprivation of his ability to move freely. Detention can be accompanied by the use of special means and a personal announcement to the person about the implementation of the preventive measure.
Suspect
They are the subject:
- In respect of which criminal proceedings have been initiated in accordance with the rules and grounds set forth in Article 20 of the Code.
- Detained in accordance with Art. 91, 92 of the CCP RF.
- In respect of which a procedural measure of restraint was applied prior to the official presentation in accordance with Article 100 of the Code.
- Notified of suspected involvement in the act.
This list is contained in article 46 of the code and is considered exhaustive.
Features of detention and imprisonment
Applying the propositions Art. 91 of the Code of Criminal Procedure, authorized employees must complyThe time limits for the subject's freedom are set by the code. They must immediately release any citizen illegally detained, placed in a hospital, including a psychiatric hospital, and also unreasonably in custody over a period established by law.
According to the requirements of Part 1.1 108 of the article of the Code, a subject can not be placed in custody, the accused / suspect in the acts under art. 165, 160, 159-159.6 of the Criminal Code, if they were committed in the field of entrepreneurship. A similar rule applies to persons suspected of involvement in acts under articles 190-199.2, 185-185.4, 180-183, 176-178, 171-174.1 of the Criminal Code. Accordingly, the detention of these persons by Art. 91 of the Code of Criminal Procedure It is inadmissible, if there are no circumstances specified in paragraphs 1 to 4 of part 1 of Article 108 of the Criminal Procedure Code.
Special cases
Special rules are provided for persons with parliamentary immunity. They are referred to in the 449 article of the Code. They include:
- Members of the Federation Council.
- Deputies of the State Duma.
- Judges of the federal, world court.
- The Prosecutor.
- Chairman, his deputy, auditors of the Accounts Chamber.
- The former president of the Russian Federation.
- Commissioner for Human Rights.
In the event of their detention on the basis of provisions Art. 91 of the Code of Criminal Procedure, they must be released immediately upon identification.
Если мера пресечения была применена к помощнику member of the Federation Council or State Duma deputy, the relevant parliamentarian is informed immediately. The corresponding prescription is contained in Article 37 of the Federal Law No. 3.
Purpose of measure
Задержание по 91 и 92 статьям Кодекса допускается exclusively on open criminal proceedings. It is aimed at clarifying the involvement of the subject to the act, the question of his placement in custody.
The law prohibits the use of provisions Art. 91 of the Code of Criminal Procedure for obtaining confessions of a crime from a person.No one is obliged to confirm his innocence to the encroachment. The burden of proof, as well as the refutation of the arguments presented in the defense of the person, is on the prosecution.
Limits of application of measures
Considering the presumption of innocence,the detention of the subject according to the rules of art. 91 of the Code of Criminal Procedure of the Russian Federation, his imprisonment in the future, should be a last resort, and not act as a rule, but rather an exception from it. At the same time, deprivation of liberty should be considered as a sanction to be imputed last. Such a punishment is permissible to apply, if another measure in accordance with the nature and severity of the act is clearly insufficient.
The restrictions imposed on citizens detained on suspicion of involvement in crimes should be consistent with the purpose for which they were used, and be minimally necessary.
Law Enforcement
Задержание и привод субъекта к the investigator / investigator is made before the opening of criminal proceedings. However, if a citizen who is reasonably suspected of the act is brought to the law enforcement agency, the question of the procedural detention of this person is decided simultaneously with the drafting of the decision to initiate the case.
Crime report
It is necessary to take into account that as the primary sourceinformation about the act reported by the citizen who committed it, is a statement, written by him personally or recorded in the protocol of the surrender. In legal proceedings, this document is recognized as independent evidence.
According to the law, as well as explanationsThe Plenum of the Armed Forces, enshrined in Decree No. 2 of 2007, the communication by the person of an encroachment made by him after the arrest does not exclude the recognition of this statement in the future as a mitigating circumstance.
Important point
If the law enforcement agencies haddata about the crime (procedural documents, reports of victims, witnesses, etc.), and the detained subject, in turn, was aware of this, his confirmation of the fact of his involvement in the act cannot be considered as a surrender. It is recognized by other extenuating circumstances.
Conclusion
В 91 статье четко определены основания, при which allowed the detention of the subject. In case of their absence, including, if there is only the intention of the investigator to send a request to the court to detain the suspect in custody, the detention of a citizen is unacceptable. Any actions aimed at this are considered to violate the prescription law.
The grounds of the 91 articles are directly related tomoment of receipt of information about the involvement of a citizen to the encroachment. They may not remain sufficient after a long period of time.
