Experience in regulating the examination in the criminal process of Germany and Switzerland

Shamsutdinov Marat Minefaetovich PhD in Law Associate Professor, Department of Criminal Procedure and Criminalistics, Federal State Autonomous Educational Institution of Higher Education "Kazan (Volga Region) Federal University" 420111, Russia, respublika Tatarstan, g. Kazan', ul. Kremlevskaya, 18, kab. 309A mshamsutdinov@mail.ru Other publications by this author

One of the ambiguous investigative actions that constantly cause a lot of discussion among both procedural scientists and law enforcement officers is the examination provided for in Article 179 of the Criminal Procedure Code of the Russian Federation (CPC of the Russian Federation)^[1]. On the one hand, being a kind of investigative examination, it would seem that it should not be of any coercive nature, at the same time, the objectives of this investigative action put investigators (interrogators) in a very difficult situation: to obtain the desired information from the person opposing this, without being able to apply physical coercion to him. Let's add a few more to this problem: uncertainty in the procedure of examination involving the exposure of the body of a person ^{[2, 3]}, a gap in the regulation of the examination of a minor ^{[4, 5]}, the lack of a clear distinction between investigative and medical examination ^{[6, 7]}. In general, the problems of examination at different times have been the subject of research by representatives of various authoritative legal scientific schools ^[8-20], however, a comprehensive procedural and criminalistic monographic study, like that carried out by Yu. G. Torbin ^{[21, 22]}, has not been conducted for more than 15 years ^[23], which does not contribute to the further development of this institute of Russian criminal law.procedural law. Without detracting from the results of the achievements carried out by the researchers of the Institute of Certification, in turn, I would like to draw attention to the experience of its regulation in certain foreign countries of the Romano-German legal family.

Comparative legal studies of various legal institutions of criminal procedure law, as a rule, are aimed at clarifying historical traditions in criminal proceedings and legislation of certain foreign states, and, which is of considerable practical value for the domestic legislator, on this basis to outline the vector of further development of Russian legal institutions. Therefore, a similar goal can be determined for the study of the regulation of the examination in the criminal process of foreign countries. The study of similar procedural institutions in the legislation of foreign countries, as well as the experience of their practical application, helps to demonstrate to the domestic researcher and legislator the optimal ways and techniques for improving the Russian criminal procedure legislation.

In this regard, we believe that for the study of the criminal procedure institute of examination, it will be interesting to consider the legislation of such Western European states as Germany and Switzerland. These states, firstly, are representatives of the continental legal system closest to us and have codified criminal procedure legislation, and secondly, the regulation of investigative actions in the countries of the Romano-German legal family, unlike the states of the Anglo-Saxon legal family, is considered precisely from the point of view of the criminal process. In addition, it is worth noting that, unlike France, Germany has a more practical, and as a result, in our opinion, a more effective criminal process. As for Switzerland, the criminal proceedings of this state have rarely been considered in the criminal procedure literature ^[24], which also prompted us to highlight its experience in the regulation of the examination.

So, the criminal process in Germany is carried out in accordance with the Criminal Procedure Code of the Federal Republic of Germany (from German - Strafprozessordnung, abbreviated – StPO), which, taking into account quite numerous and conceptual changes, is based on the Imperial Criminal Procedure Code of Germany of February 1, 1877.^[25] In this regard, we note the surprisingly scrupulous attitude in Germany to its legislative traditions, which neither the years of the National Socialist Party's rule, nor the division of Germany after World War II, nor its unification at the end of the XX century could reverse.

The institute of examination by the German legislator is placed in section VII "Experts and perception of material evidence" and includes paragraphs devoted to both the actual examination (similar to Article 179 of the Criminal Procedure Code of the Russian Federation) and forensic medical examination, genetic research, which leads us to an analogy with the Russian Statute of Criminal Proceedings of 1864 ^{[26, p.117-384]}.

Examination in the Criminal Procedure Code of the Federal Republic of Germany, the legislator and the German lawyers interpreting his plan include in the so-called "physical examination" (k?rperliche Untersuchung), distinguishing it from a personal search (k?rperliche Durchsuchung), mainly aimed at obtaining physical evidence available on the body or in the clothes of the suspect. Examination, on the contrary, involves the use of so-called "invasive medical methods". This together allows us, following the German lawyers, to attribute the examination in the Criminal Procedure Code of Germany to coercive measures that invade the personal sphere (body sphere) of a participant in criminal proceedings ^{[25, p.52]}. In practice, along with the "external examination", in which the body is examined from the outside, including natural openings, as well as using ultrasound, so-called "invasive measures" are allocated, providing for the introduction into the body. In any case, acceptable measures include computed tomography, electroencephalography, ECG, X-ray, and unacceptable - angiography, removal of bile with a catheter, phallography, forced administration of emetics and laxatives. In addition, the admissibility of the use of certain medical measures is also affected by the degree of suspicion, the severity of the crime, or the scientific approbation of research methods.

Also, as in Russia, for the examination to be carried out, it is required to issue a special resolution, which in Germany is issued by the judge of the court who has jurisdiction over this criminal case, or in cases that do not tolerate delay - the prosecutor's office and persons conducting an investigation on behalf of the prosecutor's office. At the same time, such a decision may not be made if the accused does not object to conducting an examination against himself, however, if it is necessary to use especially "harsh invasive measures", making a decision for their use is mandatory in any case.

As part of the examination under the Criminal Procedure Code of the Federal Republic of Germany, it is allowed to forcibly obtain samples from the accused for comparative research, including biological origin (blood samples, cells), cut his hair and beard, photograph him (including individual body parts), get his fingerprints, palms of hands, feet, and take other measurements.

One of the features of the Criminal Procedure Code of Germany is that it highlights in a separate paragraph the norms aimed at regulating the examination of persons other than the accused, for example, victims or witnesses. Thus, according to the provisions of paragraph 81c, they may be examined without their consent by a judge's order or, in urgent cases, by a prosecutor's order or by the persons conducting the investigation, at the direction of the prosecutor's office, if certain traces or consequences of a criminal act relevant to the crime under investigation can be found on their body ^{[25, p.128]}. At the same time, traces are understood, for example, changes on the body of the victim, using which it is possible to establish the identity of the criminal: wounds inflicted by cold and firearms, as well as traces of the criminal of a biological nature (blood, semen, epithelial particles in the subcutaneous contents). The consequences of the crime are understood as changes on the victim's body that have no identification value: knocked out teeth, scratches, bruises, the general state of health of the victim. All these manipulations can be performed if, taking into account all the circumstances, it is acceptable for the person to be examined, otherwise they are unacceptable. Acceptability in such situations is determined taking into account the balance of the personal interests of the witness, as well as the type and consequences of the measures taken during the examination. In order to clarify the acceptability of such actions, the witness is notified in advance of the planned actions, their nature is explained to him, as well as his right to refuse to perform them, for example, a witness may refuse to perform such actions against himself if he belongs to the relatives of the person being investigated. In any case, without the consent of the witness, it is unacceptable to conduct his examination aimed at establishing facts that allow assessing his testimony (mental state, observational and visual capabilities) ^{[25, p.129]}. In the absence of the above-mentioned valid grounds for the person refusing the examination, he may be subjected to a monetary penalty, and if, despite the monetary penalty, he also continues to refuse to participate in this action, he may be arrested for up to six months, and the examination itself will be carried out with the use of physical coercion by a special order of the judge.

Very interesting in the Criminal Procedure Code of Germany is paragraph 81d, aimed at preventing the so-called "insulting feelings of modesty", which contains fairly detailed rules on the procedure for conducting an examination of persons of the other sex ^{[25, p.130]}. Firstly, it is indicated that such an examination should be carried out by a person of the same sex or a female or male doctor. Secondly, in any case, the examination is carried out in compliance with these rules if it is carried out against a person over six years old and involves exposing the body. Thirdly, the person in respect of whom it is planned to conduct such an examination is explained his right to require an examination by a person or a doctor of a certain sex, as well as the presence of his proxy during the examination. Moreover, such explanations are given to a person, even if he voluntarily agreed to participate in the examination.

According to the Swiss Code of Criminal Procedure of October 5, 2007 (as amended. dated July 1, 2014) ^{[24, pp. 167-319]} the regulation of the examination (literally translated as "examination") is carried out by interrelated norms of various sections devoted to both the collection of evidence and the application of procedural coercion measures. Thus, it should be noted that chapter 5 "Examination of persons" is included in section 4 "Searches and examinations", placed by the Swiss legislator in title 5 "Measures of procedural coercion", and not in title 4 "Evidence", as for example, it was done in relation to the inspection. According to Articles 15, 16, 18, 198 and 241 of the Swiss Code of Criminal Procedure, an examination (examination) is prescribed in a written order issued by the prosecutor's office, courts (chairmen of courts) on measures of procedural coercion, and in cases prescribed by law by the police. In urgent cases, the examination can be carried out on the basis of an oral prescription, which must subsequently be confirmed in writing. According to Part 2 of Article 241 of the Swiss Code of Criminal Procedure, the order for conducting the survey must determine: the persons being examined; the purpose of the survey; the bodies or officials authorized to conduct the survey. Also, in our opinion, the general rules for conducting the survey should include the rules established by the Swiss Code of Criminal Procedure that:

- an order to conduct an examination may be issued if it is provided for by law, and the circumstances of the case indicate the sufficiency of suspicion, the inability to obtain evidence in another way that less restricts the rights of persons (Part 1 of Article 197 of the Swiss Criminal Procedure Code);

- orders to conduct a survey in relation to persons other than the accused should be appointed (issued) with particular restraint (Part 2 of Article 197 of the Swiss Criminal Procedure Code);

- means of coercion, the use of force, threats, promises, misleading and means that may cause damage to the ability to think and freedom of will, when collecting evidence, are prohibited, even if the person has agreed to their use (Article 140 of the Swiss Criminal Procedure Code);

- when conducting an examination, officials or authorities must observe all necessary precautions to achieve the purpose of this measure (part 1 of Article 242 of the Swiss Criminal Procedure Code).

Speaking, in fact, about the examination of persons, the Swiss Code of Criminal Procedure in Article 251 establishes that it involves the identification of their physical or mental condition, and the examination of the accused is aimed at establishing the circumstances of the case, as well as to clarify his sanity, procedural capacity and the possibility to choose a measure of procedural coercion in the form of detention. It is particularly noted that a violation of the physical integrity of the accused may be prescribed "if it does not entail either severe pain or a threat to health" (Part 3 of Article 252 of the Swiss Criminal Procedure Code). In this regard, I would also like to draw attention to the right of the police, if there is a "danger of delay", to conduct an examination of natural openings and body cavities without a corresponding order from the previously mentioned officials and bodies, followed by immediate informing them about it (Part 3 of Article 241 of the Swiss Criminal Procedure Code). Examination and violation of the physical integrity of a person is carried out by a doctor or other medical professional of the relevant specialty (Article 252 of the Code of Criminal Procedure of Switzerland).

Comparing the regulations of the institute of examination in Germany and Switzerland, it should be noted that, despite the proximity of these two states and not only territorial (at least one third of the Swiss population speaks German, which is one of the official languages), there are significant differences and peculiarities in the legislation of these states regarding this investigative action:

- the regulation of examination in the Criminal Procedure Code of Germany is, in our opinion, more complete and thorough in comparison with the Criminal Procedure Code of Switzerland;

- examination under the Criminal Procedure Code of Switzerland is a measure of procedural coercion, although, as the researchers note, there are no clearly established prerequisites for this ^{[24, p. 142]};

- the norms of the Criminal Procedure Code of the Federal Republic of Germany should be positively assessed, aimed at observing the rights of the individual during the examination of other persons, in particular, at preventing the so-called "insulting feelings of modesty", as well as careful elaboration of provisions on the conditions and grounds for the use of coercion during the examination.

Concluding the analysis of the institute of examination in the criminal procedure legislation of Germany and Switzerland, it is worth making the following generalized proposals focused on the use of their legislative experience by the Russian legislator, and which should be concentrated in the following three directions:

1. it should be more clearly and directly in the interrelated articles of the Criminal Procedure Code of the Russian Federation to designate the compulsory nature of the examination, for example:

- it is necessary to fix in Article 179 of the Criminal Procedure Code of the Russian Federation the possibility to conduct an examination in relation to the accused and the suspect without first obtaining their consent. It is also necessary to support the proposal of A. G. Potapova, voiced back in 2007, that in case of direct refusal or evasion of these persons from participating in the examination without valid reasons, to establish a rule on the possibility of conducting a so-called "compulsory" examination, within which, on the basis of an appropriate court decision taken in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, physical coercion may be used.At the same time, we note that the limits and intensity of such coercion require separate discussion and research.

- such a "compulsory examination" should be included in the list of investigative actions specified in Part 2 of Article 29 of the Criminal Procedure Code of the Russian Federation and carried out only by a court decision, establishing an exception to this rule in cases that do not tolerate delay and threaten to lose traces, as well as in the case of detention of a person suspected of committing a crime.

- establish a rule on imposing a monetary penalty in the amount of 10,000 rubles on the victim or witness who evades or directly refuses to undergo an examination without valid reasons.

2. it is necessary to establish clearer guarantees of the rights of victims and witnesses during the examination, for example:

- in relation to the victim and the witness, to establish a single procedural procedure for examination, which is permissible only with their consent, recorded in the resolution by the handwritten signature of such a person. If it is impossible to obtain such consent, or if you refuse to undergo an examination without valid reasons, establish the right of the investigator in this case to carry out an examination of these persons only after receiving a court decision, taking as a basis the procedure specified in Article 165 of the Code of Criminal Procedure of the Russian Federation;

- establish special rules for the examination of minors, fixing the need for mandatory participation in the examination of the legal representatives of a minor, except in cases when a minor who has reached the age of ten does not declare otherwise, or if it is established that the actions of his legal representatives harm the interests of the minor;

3. clarify other examination procedures, for example:

- replace in Part 1 of Article 179 of the Criminal Procedure Code of the Russian Federation the term "bodily injury" with the term "signs of harm to health";

- to supplement Part 1 of Article 179 of the Criminal Procedure Code of the Russian Federation with another purpose of conducting an examination - determining the possibility of applying procedural coercion measures to a person;

- provide for the right of the court to hold a closed court session, if necessary, to carry out an examination, accompanied by the exposure of the face;

- to include in the list of persons who can be examined a person who is directly indicated by victims or eyewitnesses;

- to fix the rule on the possibility of using "non-invasive" technical means specific for him during the examination (for example, ultrasound, electrocardiogram, magnetic resonance imaging, radiography) in compliance with the procedure specified in Part 5 of Article 166 of the Code of Criminal Procedure of the Russian Federation, as well as the prohibition of the use of methods dangerous to human life and health or degrading his honor and dignity;

- to fix the rule that during the examination it is unacceptable to use physical coercion that is not provided for by law, as well as threats, blackmail, deception or abuse of trust, misleading, as well as means that may lead to a violation of the freedom of expression of a person.