Improving the procedural status of a suspect by modernizing the grounds for its occurrence

Polikarpova Ol'ga Sergeevna ORCID: 0000-0002-1324-6267 Senior lecturer of the Department of Administrative Activities of the Department of Internal Affairs of the St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 zhuravlenok_os@mail.ru

The primacy of suspicion over the permissibility of the use of criminal procedural coercion is indisputable, and, as we firmly believe, cannot be questioned. However, from the moment of the formation of domestic criminal proceedings to the present day, this is not so obvious based on the provisions of domestic criminal procedure legislation.

Thus, the first criminal procedure law of the post-revolutionary period, which was the Criminal Procedure Code of the RSFSR of 1922, and even in the provisions of the following, as amended in 1957, the moment and methods of introducing a specific person into the status of a suspect have not yet been designated. Only the provisions of the last of these codes linked the emergence of a suspect as a procedural figure with the production of detention or the election of a preventive measure, but only by regulating in the relevant norms the obligation to explain to a person, calling him a suspect, the procedure for applying these measures.

With the development of domestic criminal proceedings, since 1960, known to us by the adoption of the next Criminal Procedure Code of the RSFSR, the following conditions have been formed and steadily consolidated as the grounds for the emergence of the procedural status of a suspect:

- detention on suspicion of committing a crime;

- the use of a preventive measure before the indictment.

Later, since March 2001, the wording of the Criminal Procedure Code of the RSFSR was supplemented with the wording "initiation of criminal proceedings against a specific person", listing this condition as one of the grounds for the official appearance of the suspect's procedural figure in the criminal case.

With the adoption of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the CPC of the Russian Federation), the listed grounds moved to Chapter 7 formed by the legislator, where they were fixed unchanged in Part 1 of Article 46 of the CPC of the Russian Federation. And in the same amount, they acted as grounds for entering into the status of a suspect until mid-2007.

In the first decade of June 2007, the provisions of Federal Law No. 90-FZ, Article 46 of the Code of Criminal Procedure of the Russian Federation were supplemented with a new, promising enough to improve the institution of suspicion and increase the effectiveness of law enforcement practice, the basis for the appearance of a suspect in criminal proceedings, consisting in notification of suspicion of committing a crime. However, its significance was offset by the extension exclusively to the procedural procedure for investigating crimes that do not require mandatory preliminary investigation, which logically follows from the reference norm defining the procedure for such notification, included by the legislator in the formulation of the analyzed basis, fixed in paragraph 4 of Part 1 of Article 46 of the Code of Criminal Procedure of the Russian Federation.

Thus, in relation to the vast majority of socially dangerous acts, which constitute not only 267 crimes attributed by the provisions of Article 151 of the CPC of the Russian Federation to the exclusive jurisdiction of the preliminary investigation bodies, but also 74 crimes listed in Article 150 of the CPC of the Russian Federation, provided that the public danger of the act is increased by the presence of qualified signs, in order to introduce a specific person into the procedural process The status of a suspect allows the use of grounds formed in the conditions of the Soviet criminal process, which seems archaic in the trend of improving Russian criminal proceedings.

In the context of modern criminal proceedings, with the development of crime, the introduction of modern information technologies into the criminal environment and the complication of the process of proving the circumstances permissible for laying the basis for determining the guilt of a particular person in involvement in the commission of a socially dangerous act, the priority of reasonable suspicion increases over the grounds of procedural detention, enshrined in the provisions of Article 91 of the Code of Criminal Procedure and the application of criminal measures-procedural restraint listed in Part 1 of Article 97 of the Code of Criminal Procedure of the Russian Federation. At the same time, the indicated trend in the development of crime reduces the percentage of criminal cases, the initiation of which, at the time of making such a procedural decision, can be carried out against a particular person, which, as mentioned above, is currently the only one among the remaining ones not related to the institution of coercion, and permissible for use for the form of preliminary investigation as the basis for the introduction persons in the procedural status of a suspect.

The discussions of the scientific community regarding the grounds for the emergence of the procedural status of a suspect cover arguments as supporters of their logic, which, in particular, include V. N. Shpilev ^{[9, p. 70]}, although defending his legal position much earlier than the adoption of the Criminal Procedure Code of the Russian Federation, but, recall, the appearance of a suspect in the process in the relationship The institution of coercive measures was formed during the period of the Soviet criminal process, and did not agree with the appropriateness of the emergence of the procedural status of a suspect through the use of criminal procedural coercion, in particular, V. Yu. Melnikov ^{[4, pp. 99-100]}, I. V. Smolkova ^{[6, pp. 145-147]}, R. V. Maziuka ^[3], A. A. Davletova ^{[1, p. 20]}, S. B. Rossinsky ^{[5, p. 62-63]}, V. Y. Stelmakh ^[7], which confirms the relevance of the study aimed at arguing the logic of modernization of the currently existing grounds for the emergence of the procedural status analyzed in the manuscript for the formation of a single, denounced procedural solution proposed by the scientific community in different interpretations, for example: recognition as a suspect, involvement as a suspect or another, similar in nature ^{[2, p. 100; 8, p. 9; 6, p. 154-163]}. In particular, it seems to us the most acceptable name of the decision "on the initiation of criminal prosecution", to be issued in the form of a resolution, for its application as a basis for the emergence of a suspect in the process in order to logically argue the need for a procedural status for a particular person, in respect of whom criminal prosecution should be carried out due to the emergence of a reasonable suspicion of involvement in the commission of a socially dangerous act and, as a result, in need of protection from such both through qualified legal assistance provided by the procedural figure provided for in Article 49 of the CPC of the Russian Federation, and the permissibility of refusing any explanations and clarifications on the merits of a socially dangerous act, the fact of which entailed the emergence of personalized suspicion, acting as an inalienable constitutional right every personality.

Another argument in favor of the idea we are defending is a considerable number of complaints to the Commissioner for Human Rights of the Russian Federation, which were submitted for consideration at the end of 2022 in defense of the interests of suspects and accused, the number of which amounted to 7,843 ^[10]. Of course, by the standards of the total number of crimes previously investigated in 2022, which amounted to 1035.5 thousand, the number of complaints forms a value of slightly less than 1%. However, the number of crimes from among those indicated, for which a preliminary investigation is mandatory, amounted to 464.8 thousand ^[11], which increases the percentage of complaints to 1.7%. At first glance, it is logical to attribute the percentage of complaints indicated as insignificant, however, the procedure for appealing actions and decisions of officials in criminal proceedings, determined by the provisions of Articles 124, 125 of the Code of Criminal Procedure of the Russian Federation does not even provide for the right of appeal to the Commissioner for Human Rights of the Russian Federation and its subjects. In view of the above, taking into account the specified norms of the Code of Criminal Procedure of the Russian Federation, which determine the procedure of appeal, achievable for the most part by the results of a consistent appeal to the head of the investigative body, the prosecutor, to the court, it is logical to conclude that the participants in the criminal process on the part of the defense are forced to resort to an extreme measure of protection of their rights and legitimate interests, consisting in filing complaints to the Commissioner on Human Rights of the Russian Federation. Further, we note that the analyzed report indicates the validity of the complaints received, generated by the imposition of unfair decisions by competent officials, including "on violation of the procedure for applying procedural coercion measures" ^{[10, p. 266]}, which led to the appeal process to the level of the Commissioner for Human Rights, and on the scale of the appealed decisions, to the imperfection of the criminal code-the procedural legislation of the Russian Federation, which entails difficulties in law enforcement practice up to obvious violations, as a result of hopelessness rather than insufficient qualifications of law enforcement officers. At the same time, it was the actions of the staff of the preliminary investigation bodies that led to the sending to the Commissioner for Human Rights of the largest number of appeals, amounting to 85% of the total, the above numerical value ^{[10, p. 266]}. The systematic nature of this problem is indicated by statistics from previous years, which record an even greater number of appeals from suspects accused of defending their violated rights, and those for consideration by the Commissioner for Human Rights of the Russian Federation in 2020 received 8,264, by the end of 2021 – 8,146, which, however, is due to a decrease in the overall crime rate ^{[10, p. 269]}.

In conclusion, we note that the wording "validity of suspicion" used in the content of the manuscript is not accidental. Although this is not currently an clarified definition enshrined in the provisions of the CPC of the Russian Federation, the need for this has long been traced in the legal positions of the Constitutional Court of the Russian Federation, enshrined in Resolution No. 24-P of November 19, 2013, and the Supreme Court of the Russian Federation, reasoned in the Resolutions of the Plenum of October 31, 1995 No. 8, dated October 10, 2003 No. 5, dated June 30, 2015 No. 29 and December 19, 2013 No. 41, attaching high importance to establishing the validity of suspicion during the pre-trial criminal process. However, this issue is the subject of other research by the author of the manuscript (the author is conducting a dissertation study on the topic "Development of the procedural status of a suspect in Russian criminal proceedings" for the degree of Candidate of Law in the specialty 5.1.4 "Criminal Law Sciences (legal sciences)").

The above allows us to express the conviction that the development of the post-Soviet model of the criminal process can be facilitated by awareness in the course of criminal prosecution of the primacy of suspicion arising due to the validity of such, entailing the logic of eliminating the correlation of the emergence of the procedural status of a suspect with procedural detention and the election of measures of criminal procedural restraint, which is familiar to us due to the duration of law enforcement, and the expediency of forming an improved, at the same time, there is a unified legal basis for the emergence of the status of a suspect for both forms of preliminary investigation, which will allow to establish the emergence of the investigated procedural status as a condition, rather than a consequence of the use of coercive measures in the form of detention and procedural restraint, thereby modernizing the existing procedural procedure for the emergence of a procedural figure of a suspect in a criminal case, bringing it in line with the logic of priority suspicion and excluding inconsistency, which is due to the need in the context of the trend towards improving Russian criminal justice.