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Reference:

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

DOI:

10.25136/2409-7136.2024.2.69584

EDN:

XHKKTL

Received:

14-01-2024


Published:

06-03-2024


Abstract: The article analyzes the formation and development of the grounds for introducing a specific person into the status of a suspect. The arguments of the processualists regarding the grounds for its occurrence provided for by the current Code of Criminal Procedure of the Russian Federation, recognized by both the majority of scientists and the author as rather controversial, creating difficulties in law enforcement, are investigated. Attention is focused on the importance of modernizing the grounds for introducing a person into a procedural status that generates personalized criminal prosecution, due to the need to improve the institution of suspicion in modern criminal proceedings. The author uses a historical method to identify the moment of formation and track the development of the grounds for the emergence of the procedural status of a suspect in criminal proceedings of the Soviet and modern periods. It is stated that it is necessary to reduce the grounds for the appearance of the procedural figure of the suspect to a single one, unifying it for all forms of preliminary investigation, implementing the exemption of the decision to introduce a person into the status under investigation from correlation with coercive measures, due to the primacy of suspicion. A special contribution of the author is linking the importance of the priority of suspicion over coercive measures with the complication of the proof process due to the improvement of crime, as well as the number of crimes that oblige their investigation in a form that entails the impossibility of applying a notification of suspicion as a basis that meets the requirements of the priority of suspicion. The novelty of the study consists in a proposal entailing an increase in the procedural significance of the suspect and bringing the provisions of the criminal procedure law in line with modern trends.


Keywords:

criminal prosecution, suspicion, procedural status, grounds, preventive measures, detention, validity of suspicion, correlation, institution of suspicion, improvement of criminal proceedings

This article is automatically translated.

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.

References
1. Davletov, A. A. (2015). The problem of the status of a criminally prosecuted person at the stage of initiation of a criminal case. Russian Law Journal, 4(103), 61-67.
2. Derishev, Yu. V., & Zemlyanitsin E. I. (2014). The procedural status of a person in respect of whom a preliminary check of a crime report is being carried out. Legal science and law enforcement practice, 3(29), 95-100.
3. Mazyuk, R. V. (2013). On the duration of the procedural status of a suspect in the case of the application of a preventive measure to him before the indictment. Russian investigator, 11, 17-20.
4. Melnikov, V. Yu. (2005). Detention of a suspect as a measure of coercion: from suspicion to suspect. Izvestia of higher educational institutions. Law studies, 2(259), 94-104.
5. Rossinsky, S. B. (2019). Detention of a suspect: a constitutional and intersectoral approach: a monograph. Moscow: Prospekt, 192.
6. Smolkova, I. V. (2020). The suspect and his procedural position in Russian criminal proceedings: monograph. Moscow: Yurlitinform.
7. Stelmakh, V. Yu. (2018). Notification of suspicion in modern criminal proceedings: the legal nature, the procedure for making, prospects for development. Bulletin of the Kaliningrad branch of the St. Petersburg University of the Ministry of Internal Affairs of Russia, 2(52), 35-39.
8. Shaidullina, E. D. (2018). Notification of suspicion as an opportunity to grant a person the status of a suspect during a preliminary investigation. Bulletin of the Ural Law Institute of the Ministry of Internal Affairs of Russia, 1, 7-10.
9. Shpilev, V. N. (1970). Participants in the criminal process. Minsk: Belarusian State University named after V. I. Lenin.
10. Report on the activities of the Commissioner for Human Rights for 2022. Retrieved from https://rg.ru/2023/05/15/rg-publikuet-doklad-o-deiatelnosti-upolnomochennogo-po-pravam-cheloveka-za-2022-god.html
11. A brief description of the state of crime in the Russian Federation in January – December 2022. Retrieved from https://мвд.рф/reports/item/35396677/

Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
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A REVIEW of an article on the topic "Improving the procedural status of a suspect by modernizing the grounds for its occurrence." The subject of the study. The article proposed for review is devoted to topical issues of the suspect's procedural status. The author considers the problems of implementing this status, indicates the directions of possible improvement of legislation. The competitive subject of the study was, first of all, the norms of legislation, the opinions of scientists, and the materials of practice. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of the procedural status of the suspect. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the Code of Criminal Procedure of the Russian Federation). For example, the following conclusion of the author: "With the adoption of the Criminal Procedure Code of the Russian Federation (hereinafter - 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." The author also actively uses empirical data for his research. We note the following author's conclusion: "Another argument in favor of the idea we advocate is a considerable number of complaints to the Commissioner for Human Rights of the Russian Federation, submitted for consideration by 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%." Thus, the methodology chosen by the author is adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. At the same time, the methodology and its reflection in the text of the article should be clarified. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of the suspect's status has always raised certain questions. It is difficult to argue with the author that "The primacy of suspicion over the admissibility 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, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, the following conclusion: "the development of the post-Soviet model of the criminal process may be facilitated by awareness in the course of criminal prosecution of the primacy of suspicion arising due to the validity of such, entailing the logical elimination of the correlation between the emergence of the procedural status of a suspect, familiar to us due to the duration of law enforcement, with procedural detention and the election of measures of criminal procedural restraint, 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 logic the primacy of suspicion and excluding inconsistency, which is due to the need in the context of the trend towards improving Russian criminal justice." These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas for commenting on the current legislation, which can be used in practice. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the issues of the procedural status of a suspect. The content of the article fully corresponds to the title, since the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Davletov A.A., Mazyuk R.V., Melnikov V.Yu., Rossinsky, S.B., Smolkova I.V. and others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the development of legislation in the field of the procedural status of a suspect. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"