Rights of a suspect in criminal proceedings. Code of Criminal Procedure of the Russian Federation Article 46. Suspect

Features of the appearance of a suspect

The decision to initiate a criminal case is made on the basis of the fact that a criminal offense has been committed or in relation to a specific person. If, when a case is initiated, there is sufficient information to suspect a specific person of committing a crime, the decision to open a criminal case is made in relation to this person. If a law enforcement officer doubts the involvement of a particular person in a case, he opens a case in connection with the crime committed.

When a case of a criminal offense is initiated, a person acquires the status of a suspect when he is detained on suspicion of carrying out illegal actions. Some people mistakenly assign this status to persons caught at the scene of an incident. Since at this moment the case has not yet been opened, according to legal norms, the person caught is not a suspect. His status is limited to the concept of “detainee”.

In this case, a person acquires the status of a suspect at the preliminary stage of the investigation, when a preventive measure is chosen against the detained person before he is charged under Article 100 of the Code of Criminal Procedure.

Suspect: acquisition of status and procedural rights

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Suspect

- this is a criminally prosecuted person in pre-trial proceedings. In accordance with Article 46 of the Code of Criminal Procedure of the Russian Federation, a suspect is a person:

- against whom a criminal case has been initiated;

- a person against whom a preventive measure has been chosen before charges are brought against him;

- a person notified that he is suspected of committing a specific crime;

- a person is detained on suspicion of committing a crime.

It follows from this norm that in order for a person to acquire the procedural status of a suspect, the appropriate procedural actions must be performed, namely:

- a decision was made to initiate criminal proceedings against this person for committing a specific crime;

- the actual detention of the person was made and a protocol was drawn up for the detention of a person suspected of committing a crime;

- the person was notified that he was suspected of committing a crime;

— a preventive measure was chosen against the person.

Notification of suspicion

Notice of suspicion is used in an inquiry. The notice briefly outlines the thesis of suspicion. This notice is then presented to the person, and the essence of the suspicion, the legal consequences and the rights arising in connection with it are explained to him. After this, only the interrogation of the suspect follows.

This procedure for obtaining the status of a suspect has significant drawbacks: it does not allow this procedure to be the optimal means of placing a person in the status of a suspect. One of them is that during its proceedings there is no defender, since according to Part 3 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, the defense attorney participates in the criminal case from the moment of delivery of the notification of suspicion of committing a crime in the manner established by Art. 223.1 of the Code of Criminal Procedure of the Russian Federation, in which there is not a word about a defender. It turns out that a defender is not provided for in this procedure at all, which is a gap of the legislator. Considering the significance of the actions performed by the interrogator, the presence of a defense attorney during them should be considered necessary.

In addition, certain questions are raised by the very form of the decision made by the inquiry officer, called a notification.

. It is not clear why the law does not provide for a mandatory ruling in this case, as in the case of bringing charges. Indeed, in its content, the notification is similar to the decision to bring the person as an accused.

During the preliminary investigation, the procedure is different. As a rule, a criminal case is initiated upon the commission of a crime by an unknown person. As soon as a person actually suspected of committing a crime appears during the investigation, he is either detained or one of the preventive measures is applied to him in accordance with the Code of Criminal Procedure of the Russian Federation.

Acquiring suspect status

A person acquires the status of a suspect NOT from the moment the arrest report is drawn up, but from the moment of actual arrest

, that is, from the moment a person is deprived of the ability to move freely. The legislator enshrined this rule in the Code of Criminal Procedure, since in practice a person is detained after many hours of drawing up a detention report. Operational officers spend many hours interviewing the detainee, taking samples for examination, and taking the detainee for a medical examination. Very often, in many cases, operational officers use unauthorized interrogation methods on a detainee, use torture, and only after receiving a confession from the detainee do they hand him over to the investigator (interrogating officer) for investigative actions.

A vicious practice has developed in which, contrary to the provisions of the Code of Criminal Procedure of the Russian Federation, the issue of detention is actually accepted by operational police officers who, after agreement with the chief of police and the prosecutor, tell the person conducting the investigation to detain the person suspected of committing a crime or not. Many, unable to withstand psychological pressure or beatings, wanting to avoid detention and arrest, agree to confess, which they often regret later.

The said norm of the Code of Criminal Procedure gives a formal legal concept of a suspect. The Constitutional Court of the Russian Federation gave a broader concept of a suspect, indicating that criminal prosecution in any form indicates the presence of suspicions against this person, which gives him the right to defense and refusal to testify, regardless of the lack of procedural status of the suspect.

A person detained on suspicion of committing a crime must be questioned within 24 hours. Interrogation of a detained suspect is not only the responsibility of the person conducting the investigation, but also the right of the suspect himself.

The investigator (inquiry officer) is required to indicate in the arrest report and in the decision on the selection of a preventive measure what the citizen is suspected of.

A person under investigation remains in the status of a suspect for a limited period of time. If a suspect was detained and then arrested by court order, then the person can retain the status of a suspect for no more than 10 days, since during this time the investigator must bring charges against the suspect. From this moment on, the person under investigation acquires the status of an accused.

If the charge is not brought within the specified period, then the person is released and formally loses the status of a suspect, of course, except in cases where the criminal case was not initiated based on the fact, but in relation to this person.

A different situation occurs during an inquiry. Here the person retains the status of a suspect until the indictment is drawn up.

The suspect has the right to defense. If a person is detained on suspicion of committing a crime, then a lawyer is provided to him from the moment of detention, in practice, when drawing up a report of detention. When a notice is served, the defense attorney is provided with a copy of the notice from the moment of delivery.

Rights of the suspect

The suspect formally has a wide range of rights. A number of them have already been named - the right to know what a person is suspected of, the right to defense, the right to give testimony and explanations about suspicions against him in his native language.

In addition, a person in the status of a suspect has the right to refuse to testify and for this he does not bear any responsibility. The suspect has the right to present evidence, file petitions for investigative and other procedural or operational investigative actions. He also has the right to have an interpreter, familiarize himself with the protocols of investigative actions carried out with his participation, file complaints, have meetings with a defense lawyer and a number of other rights.

It should be noted that the Code of Criminal Procedure provides the right to make copies of the materials of a criminal case only to the accused, however, taking into account the provisions of paragraph 11, part 4, Article 47 of the Code of Criminal Procedure of the Russian Federation, such a right should also be granted to the suspect

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When ordering an examination, the suspect has the same rights as the accused; they are listed in Article 198 of the Code of Criminal Procedure of the Russian Federation. Many inexperienced investigators make mistakes when ordering forensic examinations. They introduce the suspect (usually the accused) simultaneously with the decision to order an examination and with the ready-made examination conclusion, limiting the legal rights of the person under investigation: to challenge the expert, to ask questions to be put to the expert, and others. The suspect also makes the mistake of signing protocols for familiarizing himself with the decision to order an examination and familiarizing himself with the examination report, which do not indicate the dates of their preparation, and even worse, they do not declare a repeat examination in connection with a violation of their rights, which is important. Why this is important is described here.

From the duties of a suspect

Only one thing can be noted: if the suspect is at large, he is obliged to appear when called by the investigator (interrogating officer). If a preventive measure other than house arrest is chosen against a suspect, he is obliged to comply with the requirements of the law regarding the behavior of the person against whom this preventive measure is chosen.

Interrogation of a suspect - admissibility requirements

In the absence of the listed conditions, a person cannot be recognized as a suspect, and, therefore, he cannot be interrogated in such a procedural status. Protocols of interrogations as a suspect of a person who has not acquired the status of a suspect should be excluded by the court as inadmissible evidence. But in practice, investigators (interrogators) continue to interrogate persons suspected of committing a crime as witnesses, and later as suspects.

If the detention of a suspect was carried out in violation of the law, then this person has not acquired the status of a suspect, and therefore the interrogation of such a person as a suspect should also be recognized by the court as inadmissible evidence.

Thus, in one of the criminal cases, the Supreme Court of the Russian Federation indicated that the detention protocol does not indicate the legal grounds for the detention, which makes the detention illegal, and hence excludes the interrogation of the suspect from evidence.

A common mistake made by investigators is to interrogate as a witness a person actually suspected of committing a crime. Such protocols of interrogation of witnesses do not have evidentiary value, since the procedural situation and procedure for interrogating a witness and a suspect differ significantly. The witness cannot benefit from the assistance of a defense lawyer. The participation of a lawyer during the interrogation of a witness in accordance with the provisions of the Constitution of the Russian Federation does not change the essence of the case, since the lawyer is only present during the interrogation, but is not endowed with the rights of a defense attorney. The witness is warned of criminal liability for refusing to testify and for giving knowingly false testimony, while the suspect has the right to refuse to testify.

Also unacceptable is the protocol of interrogation of a suspect, in which there is no statement of the circumstances of the crime, but only states that the interrogated confirms the testimony previously given by him as a witness.

Before interrogating a suspect, his procedural rights must be explained to him, which is reflected in the interrogation protocol. The absence in the protocol of information about an explanation of the rights of the suspect, primarily the right to refuse to testify, entails the unsuitability of interrogating the suspect as evidence. However, this provision of the Constitution of the Russian Federation was not clarified during the re-interrogation of the suspect, since it had previously been clarified.

An unconditional basis for excluding from evidence is the interrogation of a suspect without the participation of a defense lawyer. The interrogation of a suspect is also unsuitable evidence if the defense attorney defended two suspects in the same criminal case, and the interests of one suspect contradict the interests of the other and their testimony differs significantly.

Failure to provide a suspect with the right to invite a defense attorney of his choice is also a significant violation of the Code of Criminal Procedure of the Russian Federation, and hence the interrogation of the suspect will be unusable evidence.

A significant violation of the Code of Criminal Procedure of the Russian Federation is a violation of the right of a suspect who does not speak Russian to use the services of an interpreter and the presence of a teacher during the interrogation of a minor suspect. An explanation of the right to use the services of an interpreter must be recorded in the protocol. The absence of a teacher during the interrogation of a minor suspect under the age of 16 also excludes the interrogation of the suspect from the evidentiary process.

The interrogation protocol of a suspect has important evidentiary value. In this article I just want to remind you that, having accepted the blame during interrogation as a suspect, it will be very, very difficult to later prove your innocence of committing a crime.

Legislation of the Russian Federation on a suspect

The Code of Criminal Procedure in Article 46 in its latest edition defines the categories of persons who are considered suspects under the Code of Criminal Procedure of the Russian Federation. These include:

1. Persons against whom a criminal case has been initiated on the basis of suspicion of committing a crime, in compliance with the procedure established by Chapter 20 of the Code.
2. Persons who were detained in accordance with Art. Art. 91, 92 of the Code, defining the procedure and grounds for detention.
3. Persons in respect of whom a decision has been made to apply detention as a preventive measure pending the filing of formal charges, in compliance with the provisions of Article 100 of the Code.
4. Persons who have been notified of suspicion of committing a criminal offense in compliance with the provisions of Article 223.1.

The list of grounds is closed, but can be supplemented with other concepts through the adoption of legislative acts and amendments to the provisions of criminal law.

The right of suspects to receive a copy of the decision to initiate a criminal case will be clarified

On June 19, the State Duma adopted in the second reading bill No. 976899-6 on amendments to the Code of Criminal Procedure of the Russian Federation aimed at clarifying the right of a suspect to receive a copy of the decision to initiate a criminal case. The bill was submitted to the Duma back in January 2016, and was adopted in the first reading in June of the same year.

The changes affect clause 1, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation, according to which a suspect has the right to know what he is suspected of and to receive a copy of the decision to initiate a criminal case against him, or a copy of the arrest report, or a copy of the decision to apply a preventive measure against him. It is proposed to delete the words “against him” from this provision.

As the authors of the bill explain, it is aimed at eliminating interpretations that do not correspond to the meaning of this norm. “Currently, in accordance with Art. 46 of the Code of Criminal Procedure of the Russian Federation, a suspect has the right to receive a copy of the decision to initiate a criminal case only if the case has been initiated against him. At the same time, the overwhelming majority of cases are initiated upon detection of signs of a crime. The literal interpretation of the current norm allows a suspect to be denied the appropriate resolution if a case has been initiated in fact,” the explanatory note says. It is emphasized that the content of the suspect’s right in connection with the amendment does not change.

Lawyer of the Moscow AP Sergei Polyakov explained that from the point of view of the literal interpretation of the law, the investigator or interrogating officer has the right not to issue a copy of the decision to initiate a criminal case to a suspect if the criminal case was initiated on the fact of a crime committed against an unidentified person or against another person, and Subsequently, another suspect was brought to justice.

“But after giving a person the status of a suspect, a criminal case, following the logic, in fact becomes initiated against him, since criminal prosecution is carried out against this person, which would be impossible without the initiation of a criminal case. Consequently, the suspect has the right to receive a copy of the decision to initiate a criminal case. At the same time, in clause 1, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation contains a provision that the suspect has the right to know what he is suspected of, and therefore must be familiar with the decision to initiate a criminal case (otherwise, from what procedural document will he learn about this?). Familiarization with the materials of a criminal case, including during the preliminary investigation, implies not only reading them, but also the opportunity to make copies at your own expense for the purpose of subsequent analysis or appealing the decisions of the investigator or interrogating officer,” said the lawyer.

Sergei Polyakov added that in practice he has not encountered cases where a suspect was denied a copy of the decision to initiate a criminal case, but the amendment under discussion, in his opinion, is aimed at preventing abuse by law enforcement officers in cases where the investigator or interrogator for some reason can , following the literal interpretation of the norm, refuse to give the suspect a corresponding copy. “Thus, there is no special practical meaning in this norm as such, but I consider it necessary to include it in the Code of Criminal Procedure of the Russian Federation precisely in order to avoid possible abuses on the part of employees of the investigative and inquiry agencies,” he concluded.

Lawyer of Zabeida and Partners Law Firm Dmitry Danilov noted that criminal cases, especially about crimes in the economic sphere, are often initiated “after the fact,” that is, without indicating suspicions against specific individuals. “However, imagine that a month after the initiation of the case, the investigation chooses a preventive measure for the conditional Ivanov in the form of a written undertaking not to leave the place and proper behavior, in connection with which Ivanov becomes a suspect. Ivanov files a petition to provide him with a copy of the decision to initiate a criminal case in which he is suspected. The investigator, in turn, states that the case was not initiated against Ivanov, but based on the fact, and therefore he will not issue a copy,” the expert explained.

He added that if in such a situation a crime is charged, then the practice is such that he already has the right to familiarize himself with the decision to initiate a criminal case, regardless of the fact that the case has been initiated in fact. “However, a situation is possible that Ivanov is not charged for many months, the undertaking not to leave the place is canceled every 10 days and elected again, and he, being in the status of a suspect, in fact, does not even know what he is suspected of. I believe that the amendment under discussion will change this practice, limiting the scope for abuse by law enforcement officers and serving as another mechanism for ensuring the right to protection from criminal prosecution,” concluded Dmitry Danilov.

Lawyer at Lapinsky and Partners Konstantin Kuzminykh expressed a similar opinion. “In my practice, such situations have occurred, but quite rarely. Here we also need to keep in mind the strange but common situations when, at the end of the 48-hour period of detention, a person is released, and then summoned for questioning still as a suspect - this was written about in more detail earlier in a discussion on the “AG” website on the topic of the uncertainty of the end of the procedural the status of a suspect for a person against whom a criminal case has not been initiated and is not being investigated,” noted Konstantin Kuzminykh.

Cases of establishing a daily period for interrogation

In relation to a detained suspect, the maximum period for official interrogation by the investigator is twenty-four hours from the moment of detention, if the basis for his detention, in accordance with Article 91 of the Code, is:

• Detection of a person at the time of the commission of a crime or immediately after the commission of a criminal offense.
• Identification of a person as having committed a criminal offense by victims or eyewitnesses.
• Detection of obvious traces of a crime on the suspect (with him), on his clothing or at his place of residence.

The list of grounds for detention is open, as it may include other grounds suggesting that the suspect may flee before formal charges are filed.

Groups of general rights for all persons

Ensuring the rights of suspects rests with law enforcement officials who are prosecuting them. In this regard, they must ensure the implementation of the following capabilities:

• rights relating to all persons participating in criminal proceedings (awareness of rights, duties and responsibilities; the opportunity to testify, complain, petition, declare something; use the free assistance of a linguist-translator; attach written materials to the case; make a statement regarding participants in the process of recusal);
• the rights of a person participating in investigative actions (to be notified of the use of technical means in investigative actions and to become familiar with the protocols; to clarify and supplement the content of the protocols; to check the accuracy of the recorded testimony; to refuse to sign the protocols with an explanation of the reasons);
• rights relating to both the suspect and the accused (protect rights; the right of the suspect/accused to be protected by a lawyer; a minor to have a representative under the law; rely on protection from the state; meet with a lawyer in private; get acquainted with the results of the examination, challenge it and otherwise participate in its implementation; study relevant documents and completed forms).

Who is the accused?

The procedural status of the accused is defined in Article 47 of the Code of Criminal Procedure. According to paragraph 1, the law calls the accused the one against whom the following decisions were made:

• resolution on engagement in such capacity;
• indictment;
• indictment.

All of the above are procedural grounds to consider a person guilty. But this understanding of the accused, as in the case of the suspect, is formal. The Constitutional Court, with an eye to the opinion of the European Court of Human Rights, says that the concept should be interpreted more broadly than specified in the Code of Criminal Procedure. This is necessary so that any person against whom actions of an incriminating (accusatory) nature are committed can receive the right to defense in a timely manner.

None of the documents listed above can be issued just like that; there must be a compelling reason - namely, the totality of evidence of the suspect’s guilt.

The accused has this status until a trial is scheduled against him. From now on, he will be called “defendant.” If the verdict is guilty, the status will change to “convicted”; if the verdict is acquittal, the status will change to “acquitted”.

Procedural rights of the accused

The set of procedural rights vested in the accused is set out in paragraph 4 of Article 47 of the Code of Criminal Procedure. It includes all the rights that the suspect has, as well as a number of others that only the accused can use (since his situation is more serious):

• familiarization with the resolution on the appointment of a forensic examination and its conclusion, as well as posing questions for the expert;
• familiarization with any materials of the criminal case and extracts from them in any volume, but only after the completion of the preliminary investigation - you can make copies, but at your own expense;
• an objection to the termination of a criminal case on a number of grounds determined by the Code of Criminal Procedure - for example, you can refuse an act of amnesty;
• taking an active part in the trial at first instance, appeal, cassation, supervision;
• familiarization with the protocol and audio recording of the court session with the submission of comments regarding their content;
• appealing judicial acts and obtaining copies thereof;
• receiving copies of complaints and presentations on the case with filing objections to them;
• taking part in the consideration of issues related to the execution of the sentence.

Neither the accused nor the suspect needs to look for all this in the Criminal Procedure Code - the interrogator, investigator, judge must explain to them their rights. Moreover, to explain is not only to declare, but also to give explanations if something is not clear to the accused (suspect).

General rights groups for suspect only

Guarantees of the rights of the suspect must be ensured by the interrogating officer or investigator.

These rights include the following:

• rights related only to the suspect (to use the services of a defense lawyer; not to testify against close people and family members; to use one’s written notes; to study one’s testimony and protocols of interrogations and confrontations; to participate in investigative activities);
• the rights of those in custody (enshrined in the Constitution of the Russian Federation, including the right to protection and adequate treatment, as well as to the implementation and execution of transactions and transfers of funds, etc.).

Providing the suspect and accused with the right to defense and use of their own records is implemented by investigators and other persons participating in the proceedings.

These rights allow the person against whom a criminal case has been or will be initiated to be aware of all the activities and actions being carried out in relation to him, and also to a certain extent to control the actions being taken.

Who is the suspect?

The status of the suspect and his difference from the others is disclosed in Article 46 of the Criminal Procedure Code of the Russian Federation. It says that in criminal proceedings this is the name given to a person who:

• became the person against whom a criminal case was opened;
• was detained in a certain manner;
• undergoes any of the preventive measures prescribed against him;
• received notification of suspicion of committing a crime.

Let's consider each of the four situations separately. When exactly is a criminal case initiated? In accordance with Article 140 of the Code of Criminal Procedure, this occurs in the following cases:

• receipt of a statement of crime (in cases of private and private-public prosecution);
• confession of the criminal;
• informing government bodies in any other way about the fact of commission or preparation of a crime;
• the prosecutor's decision to forward the materials to the preliminary investigation body (investigator, interrogating officer) in order to resolve the issue of criminal prosecution.

The second reason to consider a person a suspect is detention. It is carried out on the basis of Article 91 of the Code of Criminal Procedure in the following cases:

• if the offender is caught during or immediately after committing the crime;
• when victims or eyewitnesses point it out;
• when unambiguous signs of a crime are found on his body, hair, clothes, in his belongings, in his house.

These grounds are considered peremptory. But if they are not there, an objective reason for detention may be an attempt to escape, lack of permanent residence, or the inability (temporary or in principle) to establish the person’s identity.

They can also be detained if the investigator, with the consent of the prosecutor, applies to the court with a request to take the person into custody. This is possible even if they do not have any of the arguments listed above. Actual detention may occur before the initiation of the case.

As for the emergence of the status of a suspect from the moment of applying preventive measures in principle, you need to understand that such a measure is a way for the investigative, inquiry, and court authorities to limit the rights of someone who is a potential criminal. This is done for the purposes of:

• prevent him from continuing his criminal activities;
• prevent him from escaping from government forces;
• not to allow him to interfere with the disclosure of the truth and, in principle, the normal course of the criminal process.

If one of the preventive measures was applied to you (undertaking not to leave the place, house arrest, etc.), then within ten days from that moment you must be charged. There are exceptions, but they are rare. This means that within 10 days you must move from the category of suspects to the category of accused. The ten-day period has been missed - the preventive measure must be cancelled. If you were detained and a preventive measure was not prescribed within two days, then know that you must be released.

The suspect generally “exists” only until the end of the preliminary investigation stage, that is, until the start of proceedings in the court of first instance. If his affairs are bad, then at the stage of judicial proceedings he will already be an accused, and then a defendant and, possibly, convicted.

The case may not be initiated against a specific person, but based on the fact of a crime. If someone begins to be suspected only at the stage of preliminary investigation, then he cannot be called a suspect until he is detained or until one of the preventive measures is applied to him.

But if such a character appears during the investigation, he will receive a copy of the written notice of suspicion from the investigator and from that moment on he will become a suspect. This is the longest period of existence of the figure of a suspect - the status can be maintained until an indictment is drawn up.

Article 223 of the Code of Criminal Procedure states that the inquiry is carried out within thirty days from the date of initiation of the case, and in exceptional cases, with the permission of the prosecutor, the period is doubled.

All of the above concerns understanding the figure of the suspect in a narrow, formal sense. The Constitutional Court invites us to interpret this concept more broadly. A person can be called a suspect from the moment the bodies of inquiry and investigation begin to deal with him.

This is criminal prosecution in the form of investigative actions: interrogation, search, identification, etc. That is, if they explain to you the right not to incriminate yourself, know that you are already acting as a suspect and have all his procedural rights. This means that you can use the help of a lawyer without waiting for a government agency to recognize your formal status.

Procedural rights of a suspect

If the suspect just had that name and that was it, there would be no point. The essence of any procedural status is the set of rights it provides. The rights of a suspect are listed in paragraph 4 of Article 46 of the Code of Criminal Procedure:

• be aware of the essence of the suspicions and receive a copy of the document on the basis of which he became a suspect (resolution to initiate a criminal case, a detention protocol, a decision to impose one of the preventive measures);
• explain himself and provide evidence regarding suspicions against him or not speak out on this matter at all - everything said can then turn into evidence in the case, even if he subsequently retracts his words, while the suspect is not responsible for giving false testimony;
• have a lawyer and use his services, including having a one-on-one meeting with him in confidence before the first interrogation takes place;
• from the moment of detention or the appointment of house arrest, have as many meetings of any duration with a notary - they may be required solely to certify the power of attorney for the one who will manage the suspect’s business during the criminal prosecution;
• present evidence in the case;
• file petitions and challenges;
• speak during the trial in a language that the suspect speaks, and for the purpose of understanding, seek the help of an interpreter free of charge;
• be familiar with the protocols of investigative actions that were carried out with his participation, and also make comments regarding them;
• take part in investigative actions requested by the defense (it makes no difference whether this was done by the suspect himself, his defense attorney or legal representative) - but only with the permission of the investigator or interrogating officer;
• file complaints against actions or inactions, as well as against decisions of officials of the prosecution and the court;
• have the opportunity to defend themselves by other methods that are not prohibited by criminal procedural legislation.

From this point of view, the suspect is a fairly active participant in the criminal process. However, all of the above are rights, not obligations, so a person can refuse to use them.

Primary rights after detention

After arrest, the rights of a suspect under the Code of Criminal Procedure of the Russian Federation include the right, before the expiration of a three-hour period, to have one telephone conversation in a language understandable to the investigator or interrogating officer (Russian). The suspect is allowed to notify his next of kin or other loved ones about the fact of his arrest and his place of stay.

The investigator or inquiry officer, in turn, must make a note in the arrest report. If the suspect waived the right to make a telephone call or was unable to make it on his own due to mental or physical disabilities, the next of kin and other loved ones are notified by the investigator or interrogating officer.

List of persons subject to notification

Within twelve hours from the arrest, the investigator is obliged to notify the following persons about the arrest of the suspect:

1. If the suspect is a military personnel, the command of his unit is notified.
2. If the suspect is an internal affairs officer, his superior is notified.
3. If the suspect is a member of a public monitoring commission, the secretary of the Civic Chamber of the Russian Federation and the corresponding public monitoring commission are notified.
4. If the suspect is a lawyer, the Chamber of Lawyers is notified.
5. If the suspect is a subject or citizen of a foreign state, the consulate or embassy of that state is notified.

This list is closed and can only be supplemented by amending the relevant acts.

Rights regarding documents

In addition to the right to make a telephone call on the first day, according to part four of Article 46 of the Code of Criminal Procedure, it is possible to exercise other rights that the suspect has under the law. The Code of Criminal Procedure provides for the following rights:

• the right to know about suspicions against him;
• the right to receive a resolution (copy) to initiate a criminal case;
• the right to receive copies of other procedural documents (detention protocol; resolution indicating the use of a preventive measure).

Rights regarding interaction with investigators and defense counsel

When interacting with other persons, the suspect has the following rights:

1. The right to testify and explain what he is accused of, or to report a refusal to testify or explain. If the suspect agrees to give evidence or make a statement, he is warned about the possibility of using it as evidence in a criminal case and during criminal proceedings, even if he subsequently refuses it. If the testimony is given in the absence of the defendant's defense attorney, it cannot be used at the trial.
2. The right to receive assistance from a public or private defender from the moment a criminal case is initiated, from the moment of arrest or delivery of a notice of recognition of a person as a suspect.
3. The right to confidential communication with a defense lawyer.
4. If a suspect is engaged in business activities, he has the right to freely communicate with a notary representing his interests in business.

Commentary on Article 46 of the Code of Criminal Procedure of the Russian Federation

1. The Code of Criminal Procedure of the Russian Federation has significantly expanded the grounds for recognizing a person as a suspect. This is not only a person detained on suspicion of committing a crime or to whom a preventive measure has been applied before charges are brought in accordance with Art. 97, but also the person against whom a criminal case has been initiated. The initiation of a case against a specific person is directly stated in the Code of Criminal Procedure in Part 1 of Art. 318, dedicated to the initiation of a criminal case of private prosecution, as well as in Art. 448, regulating proceedings in relation to certain categories of persons. However, in other cases, the decision to initiate a case may include information about the person suspected of committing a crime among the grounds for making this decision. Considering that from the moment a case is initiated against a specific person, he acquires almost the entire range of rights of a suspect, incl. the right to defense, it seems that the body of inquiry, the inquiry officer, the investigator and the prosecutor, if there are certain data about the person who committed it in the primary materials about the commission of a crime (report, inspection materials), are obliged to indicate this person in the decision to initiate the case. If, at the time of initiation of the case, data about such a person are not available in the primary or verification materials (initiation of a case after the fact), but then appear during the preliminary investigation, then the person actually suspected of committing a crime is not considered a suspect until his arrest or application to him before being charged with a preventive measure. However, during an inquiry, the situation is different - if during the inquiry sufficient data was obtained giving grounds to suspect a person of committing a crime, the investigator draws up a written notification of suspicion of committing a crime, a copy of which is handed to the suspect, and explains to him the rights of the suspect (Part 1 of Art. 223.1).

2. Within the meaning of paragraph 11 of Art. 5 and paragraph 3, part 3, art. 49 of the Code of Criminal Procedure, a suspect appears in a criminal trial not from the moment of drawing up a protocol on detention (for which, in Part 1 of Article 92, a three-hour period is given from the moment the detainee is delivered to the body of inquiry, to the investigator or prosecutor), but from the moment of actual detention, which may occur and before the initiation of a criminal case. Actual detention, in accordance with paragraph 15 of Art. 5 of the Criminal Procedure Code, the moment of actual deprivation of freedom of movement of a person suspected of committing a crime is considered.

3. It should be borne in mind that in Art. 46 of the Code of Criminal Procedure, the concept of a suspect is given in the narrow, formal legal sense of the word. As the Constitutional Court of the Russian Federation indicated, the fact of criminal prosecution and, therefore, accusatory activities directed against a specific person can be confirmed not only by the act of initiating a criminal case against this person, but also by conducting investigative actions in relation to him (search, identification, interrogation, etc. .), other measures taken to incriminate him or indicate the presence of suspicions against him (in particular, an explanation in accordance with Part 1 of Article 51 of the Constitution of the Russian Federation of the right not to testify against oneself). The person against whom these actions are carried out must be considered a suspect in the broad, meaningful sense of the word. A broad understanding of the concept of a suspect gives him the right to immediately benefit from the assistance of a defense lawyer, without waiting for his status to be formally recognized by any acts of the preliminary investigation bodies <1>.

——————————— <1> See: paragraph 3 of the motivational part of the Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P in the case of verifying the constitutionality of the provisions of Part 1 of Art. 47 and part 2 of Art. 51 of the Code of Criminal Procedure of the RSFSR in connection with the complaint of gr. IN AND. Maslova // RG. 07/04/2000. N 128.

4. According to Part 2 of this article, the suspect must be interrogated no later than 24 hours from the moment of his actual arrest (but not a decision to initiate a criminal case against him). It should be borne in mind that conducting an interrogation within the specified period is not only the duty of the investigator, etc., but also an important right of the suspect, especially significant for him in the event of detention, because, firstly, at the moment it is most fully realized the right of the suspect to find out what he is suspected of, and secondly, according to paragraph 3, part 4, com. article, it is during this 24-hour period (before the first interrogation) that the detainee can most often use the opportunity to meet with a defense lawyer.

5. The suspect exists as a participant in legal proceedings for a limited time. If the suspect was detained and then taken into custody, then this time, as a general rule, cannot be more than 10 days - from the moment of detention until the filing of charges (Article 100). If a preventive measure was not chosen within 48 hours, then the person suspected of committing a crime is subject to release (Part 2 of Article 94) and after that formally cannot be considered a suspect, because he is no longer detained and is not subject to a preventive measure. The exception is cases when the decision to initiate a case will reasonably indicate information about this person. During an inquiry, a person may be in the position of a suspect until an indictment is drawn up.

6. The duty of the person conducting the preliminary investigation to promptly notify the suspect of what he is suspected of is implemented by indicating in the arrest report the grounds and motives for the arrest (Part 2 of Article 92); in the resolution on the application of a preventive measure before bringing charges - a crime in which the person is suspected (Part 1 of Article 101 of the Code of Criminal Procedure). The Code of Criminal Procedure of the Russian Federation no longer contains the rule that existed in the Code of Criminal Procedure of the RSFSR (Part 2 of Article 123) that before interrogation the suspect must be told what crime he is suspected of committing. However, taking into account that the right to defense must be ensured (Article 16 of the Code of Criminal Procedure of the Russian Federation), we believe that the investigator, employee of the inquiry agency, and prosecutor are still obliged to fulfill this requirement.

The suspect has the right to receive a copy of the notice of suspicion. For more information, see com. to Art. 223.1.

7. The suspect has the right to give explanations and testimony regarding the suspicions against him or to refuse to give them. The testimony that the suspect has the right to give is information about the specific factual circumstances of the criminal case known to him, which he reports during interrogation. Testimony must be distinguished from explanations, which are understood as the arguments put forward by the suspect in his defense - versions and assumptions containing the interpretation of certain facts (for example, a version explaining in a theft case the fact of finding the suspect red-handed by the accidental discovery of someone previously lost or stolen items; assumptions about the motives for which the victim or witnesses may give false testimony against him, etc.) <1>. The procedural significance of the suspect’s explanations is that they are a means of protecting him against the suspicion raised, and therefore, in accordance with the requirements of Part 2 of Art. 14 (“Presumption of innocence”), place on the prosecutor (inquirer, investigator) the obligation to verify them and the burden of refutation. Giving evidence and explanations is the right, not the obligation of the suspect. He does not bear any responsibility for refusing to testify and giving knowingly false testimony. If the suspect agrees to testify, he must be warned that his testimony may be used as evidence in a criminal case, including if he subsequently refuses this testimony, except in the case where it was given during pre-trial proceedings in the absence of defense lawyer and not confirmed by this person in court (clause 2, part 4, article 46).

——————————— <1> In practice, as a pre-investigation check at the stage of initiating a criminal case, the suspect and other persons often receive the so-called. explanation - a written document that sets out the circumstances known to these persons. However, the current Code of Criminal Procedure of the Russian Federation does not mention explanations as a means of verifying statements and reports of a crime.

8. According to clause 3, part 4, com. article, the suspect has the right to have a private and confidential meeting with a defense lawyer before the first interrogation of the suspect. See commentary to Part 4 of Art. 92.

It seems that the right to have a meeting with a defense lawyer alone and confidentially belongs to the suspect not only “before the first interrogation,” but also at any other time. In Part 2 of Art. 18 of the Federal Law “On the detention of suspects and accused of committing crimes” establishes that “meetings between a suspect or accused and his defense attorney may take place under conditions that allow an employee of the place of detention to see them, but not hear them.” Obviously, this norm, by analogy, also applies to the investigator, interrogating officer and the inquiry body. The duration of meetings between the suspect and the defense attorney is also limited by the Internal Regulations in Places of Detention (Clause 15, Article 16 of the Federal Law “On the Detention of Suspects and Accused of Crimes”).

9. In accordance with clause 1 part 4 com. Article a suspect has the right to receive a copy of the decision to initiate a criminal case against him, or a copy of the arrest report, or a copy of the decision to apply a preventive measure against him. In addition, according to paragraph 8 of Part 4, he also has the right to familiarize himself with the protocols of investigative actions carried out with his participation. The Constitutional Court of the Russian Federation indicated that procedural norms should not limit the right of the defense attorney (and therefore the suspect. - A.S.) before the end of the investigation in a criminal case to get acquainted with the protocols of all investigative actions carried out with the participation of the defendant, incl. and before he is recognized as a suspect, as well as with all documents that were or should be presented to the suspect <1> (for example, protocols for inspection of the scene of a traffic accident included in the inspection materials and drawn up in the course of an administrative investigation by units of the State Traffic Inspectorate, diagrams of the scene of a traffic accident , vehicle inspection reports, etc.).

——————————— <1> See: Resolution of the Constitutional Court of the Russian Federation of June 27, 2000 N 11-P in the case of verifying the constitutionality of the provisions of Part 1 of Art. 47 and part 2 of Art. 51 of the Code of Criminal Procedure of the RSFSR in connection with the complaint of gr. IN AND. Maslova // RG. 07/04/2000. N 128.

At the same time, in paragraph 9 of part 4 of art. 46, in contrast to the similar right of the accused (clause 10, part 4, article 47), the unconditional right of the suspect to familiarize himself with the records of investigative actions carried out at his request is not guaranteed. The fact is that a suspect can participate in such investigative actions only with the permission of the investigator or interrogating officer, and if such permission is not given, then with a literal interpretation of paragraphs 8, 9 of Part 4 of Art. 46 in their comparison, the suspect may be deprived of the opportunity to familiarize himself with the protocols of investigative actions, for which he also applied. Such an approach can seriously limit the suspect's right to defense. It seems that these regulations must be interpreted broadly, and the suspect, by analogy with the accused, in any case, should be given the right to familiarize himself with the records of such investigative actions. The basis for this may be the indication of the law that the investigator and interrogating officer are obliged to provide the suspect with the opportunity to defend himself by all methods and means not prohibited by this Code (part 2 of article 16, clause 11 of part 4 of article 46). Since clause 9, part 4, art. 46, although it does not directly permit, does not prohibit familiarizing the suspect with the protocols of the investigative actions for which he applied; such familiarization, in our opinion, should take place even if the suspect did not participate in these actions.

10. In room The article does not indicate the right of the suspect to make copies of the materials of the criminal case, with which the investigator or interrogating officer must familiarize him. The law mentions such a right only in relation to the accused (clause 13, part 4, article 47). However, the law does not prohibit this, therefore, by virtue of clause 11 part 4 com. article, the suspect and his defense attorney must be given the opportunity to make such copies, incl. from the arrest report, the decision to order an examination, the expert’s conclusion and the protocols of investigative actions carried out at his request, as well as from all documents available in the case that were previously presented or should have been presented to the suspect.

11. The suspect, his legal representative and defense attorney have the right to participate in court hearings when the court is considering the election of preventive measures in relation to him in the form of detention or house arrest, bail, when the court is deciding the issue of placing a suspect, accused, who is not in custody, to a medical or psychiatric hospital for a forensic medical or forensic psychiatric examination, respectively (clauses 1 - 3 and 10, part 2, article 29, part 2, article 106, part 4, article 108, part 2 Art. 203).

12. According to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by the UN General Assembly Resolution of 09.12.1988, “a person detained on a criminal charge has the right to a trial within a reasonable time or to release before court” (principle 38). “Save in special cases provided by law, and unless a judicial or other authority decides otherwise in the interests of the administration of justice, a person detained on a criminal charge shall be given the opportunity to obtain release pending trial under such conditions as may be prescribed by law. Such an authority shall keep the question of the need for detention under review” (Principle 39). These standards of the World Community are not fully adhered to in the Code of Criminal Procedure of the Russian Federation. The right of a detained (custodial) suspect to a trial within a reasonable time, as a rule, can be considered guaranteed only in relation to the inquiry: a maximum of 6 months, and in exceptional cases related to the execution of an international request for legal assistance - 12 months (Part. Parts 4, 5, Article 223). When conducting a preliminary investigation, these terms can formally be as long as desired (Part 5 of Article 162), which can hardly be considered reasonable.

"Judicial" rights

The rights of a suspect in criminal proceedings, exercised in court, include the following:

1. Right to present evidence.
2. The right to file motions and challenges.
3. The right to testify in one’s native language or in Russian.
4. The right to free assistance from an interpreter.
5. The right to familiarize himself with the protocols of the investigative measures carried out and the actions in which he participated, and to express comments on them.
6. The right to participate in investigative actions with the consent of the inquiry officer or investigator, which are carried out at the request of the accused himself or his representative.
7. The right to appeal decisions and actions (or inaction) of the investigator, head of the department or head of the inquiry, prosecutor, investigator or court.
8. The right to use other means and methods of protection that are not prohibited by law.

The list is closed and can only be supplemented by amending the relevant acts.

Among all groups of rights, the most important is the right to defend oneself and ensuring the suspect the right to protection from the investigation.

Everything about criminal cases

Go to the text of the Code of Criminal Procedure

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Suspect

- Clause 1 Part 1 46 Code of Criminal Procedure

suspect is a person against whom a case has been initiated

— clause 2, part 1, 46 Code of Criminal Procedure

suspect is a person who is detained

— clause 3, part 1, 46 Code of Criminal Procedure

suspect - to whom a preventive measure was applied (
100 Code of Criminal Procedure
)

- clause 4 part 1 46 Code of Criminal Procedure

suspect - a person notified of suspicion (
223.1 Code of Criminal Procedure
)

Suspect Detention

- Part 2 46 Code of Criminal Procedure

within 24 hours after arrest, interrogation is required

- Part 2 46 Code of Criminal Procedure

before the start of the interrogation, a meeting with a defense lawyer

- Part 3 46 Code of Criminal Procedure

right to one telephone conversation after arrest

- Part 4 46 Code of Criminal Procedure

suspect's rights:

Defender for the suspect

- clause 3, part 4 46 Code of Criminal Procedure

defense attorney for the suspect - from the moment the case is initiated

- clause 3, part 4 46 Code of Criminal Procedure

defense attorney for the suspect - from the moment of arrest

- clause 3, part 4 46 Code of Criminal Procedure

defense attorney for a suspect - from notification of suspicion

Copies of documents

- clause 1 part 4 46 Code of Criminal Procedure

has the right to know what is suspected of and to receive documents:

- clause 1 part 4 46 Code of Criminal Procedure

has the right to receive - a resolution to initiate

- clause 1 part 4 46 Code of Criminal Procedure

has the right to receive a detention report

- clause 1 part 4 46 Code of Criminal Procedure

has the right to receive a decision on a preventive measure

Testimony of the suspect

- clause 2, part 4 46 Code of Criminal Procedure

the suspect has the right to testify

- clause 2, part 4 46 Code of Criminal Procedure

the suspect has the right to refuse to testify

- clause 2, part 4 46 Code of Criminal Procedure

the suspect is warned about the use of evidence

Other rights of the suspect:

- clause 3.1 part 4 46 Code of Criminal Procedure

right to a notary

- clause 4, part 4 46 Code of Criminal Procedure

present evidence

- clause 5, part 4 46 Code of Criminal Procedure

file motions and challenges

— clause 6, part 4 46 Code of Criminal Procedure

explain yourself in your native language

- clause 7, part 4 46 Code of Criminal Procedure

right to a free translator

— clause 8, part 4, 46 Code of Criminal Procedure

get acquainted with the protocols

— clause 9, part 4 46 Code of Criminal Procedure

participate in investigative actions

- clause 10, part 4 46 Code of Criminal Procedure

make complaints

- clause 11 part 4 46 Code of Criminal Procedure

the right to defend oneself by all means

Article 46 of the Code of Criminal Procedure. Suspect

1) The suspect is the person:

Url Additional information:

- Part 4 146 Code of Criminal Procedure

the suspect is immediately notified of the initiation

1). or against whom a criminal case has been initiated on the grounds and in the manner established by Chapter 20 of the Criminal Procedure Code;

2). or who is detained in accordance with Article 91 of the Code of Criminal Procedure and 92 of the Code of Criminal Procedure;

3). or to whom a preventive measure has been applied before charges are filed in accordance with 100 of the Code of Criminal Procedure.

4). or who has been notified of suspicion of committing a crime in the manner established by 223.1 of the Code of Criminal Procedure;

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RECEPTION protection

Reception against

Investigator's pressure: remarks during interrogation (
Part 4 166 of the Code of Criminal Procedure
)

2) A suspect detained in accordance with the procedure established by 91 Code of Criminal Procedure must be interrogated no later than 24 hours from the moment of his actual detention.

Url Additional information:

- Part 2 46 Code of Criminal Procedure

meeting with a defense lawyer before the interrogation of the suspect

- clause 9, part 4 47 Code of Criminal Procedure

the right of the accused to have confidential meetings with a defense lawyer

- Part 4 92 Code of Criminal Procedure

meeting with a defense lawyer before the first interrogation of the suspect

- clause 4, part 2 389.17 Code of Criminal Procedure

violation of the right to have the assistance of a defense lawyer

- Art. No. 103-FZ visits with a defense lawyer in a pre-trial detention center

- paragraph 16

Plenum No. 29 meeting with a lawyer via video conferencing

The right to see a defense lawyer

Dating with a protector

, violation of the rights of the accused to defense (
clause 9, part 4, 47 of the Code of Criminal Procedure
)

Before the start of the interrogation, the suspect, at his request, is provided with a private and confidential meeting with a defense lawyer.

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Right to call

- Part 1 96 Code of Criminal Procedure

right to a telephone call after arrest (3 hours)

- Art. No. 103-FZ notification of relatives about the place of detention

Phone call

Phone call

relatives from the detainee (
Part 1 96 of the Code of Criminal Procedure
)

3) In the case provided for in paragraph 2, part 1 of this article, the suspect is given the right:

- for one telephone conversation in Russian in the presence of an interrogating officer, investigator in order to notify close relatives, other relatives or
close persons about their detention and location,
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- Part 1 96 Code of Criminal Procedure

notification of relatives about the arrest (instead of calling)

- and the inquiry officer, the investigator must fulfill the duties of notifying the arrest in accordance with Article 96 of the Code of Criminal Procedure.

4) The suspect has the right:

1). know what he is suspected of and get:

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- Part 4 146 Code of Criminal Procedure

the applicant and the suspect are notified of the initiation of the case

Copies of the resolution

Copies of the resolution

sent to the victim and suspect

- a copy of the decision to initiate (against him -

approx.
the phrase is excluded by Federal Law No. 205-FZ of July 19, 2018) in a criminal case,
or a copy of the arrest report,

- or a copy of the decision to apply a preventive measure against him;

2). give explanations and testimony regarding suspicions against him;

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- Part 1 51

Constitution of the Russian Federation witness immunity

- paragraph 29

Plenum No. 9, refusal to testify cannot be assessed negatively

or refuse to give explanations and testimony.

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- Clause 1 Part 1 276 Code of Criminal Procedure

contradictions in testimony early testimony is made public

If the suspect agrees to testify, he must be warned that his testimony
may be used as evidence in a criminal case,
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- Clause 1 Part 1 276 Code of Criminal Procedure

contradictions in testimony early testimony is made public

— clause 11

Plenum No. 55 checks all the defendant’s testimony (old and new)

- including in the event of his subsequent refusal of this testimony, with the exception of the case provided for in paragraph 1 of Part 2 of 75 of the Code of Criminal Procedure;

3). use the assistance of a defense lawyer from the moment provided for in paragraphs:

- clause 2, part 3 of 49 Code of Criminal Procedure (from the moment the case was initiated),

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- Part 4 92 Code of Criminal Procedure

meeting with a defense lawyer before the first interrogation of the suspect

- Art. No. 103-FZ visits with a defense lawyer in a pre-trial detention center

- paragraph 16

Plenum No. 29 meeting with a lawyer via video conferencing

- clause 4, part 2 389.17 Code of Criminal Procedure

violation of the right to have the assistance of a defense lawyer

- clause 3, part 3 of 49 Code of Criminal Procedure (from the moment of arrest),

- clause 3.1 part 3 49 of the Code of Criminal Procedure (from the moment of notification of suspicion),

Url Additional information:

- Part 4 92 Code of Criminal Procedure

meeting with a defense lawyer before the first interrogation

and have a meeting with him alone and confidentially before the first interrogation of the suspect;

Url Additional information:

- Art. No. 103-FZ the right to a meeting with a notary

— clause 145.1

Rules of the pre-trial detention center for a meeting with a notary

3.1).
from the moment of choosing a preventive measure in the form of detention or house arrest, have meetings without limiting their number and duration with a notary in order to certify the power of attorney for the right to represent the interests of the suspect in the field of business activity.
At the same time, it is prohibited to perform notarial acts in relation to property, cash and other valuables that may be seized. Url Additional information:

- Part 2 86 Code of Criminal Procedure

suspect's right to collect evidence

- Part 2.2 159 Code of Criminal Procedure

evidence cannot be refused

4).
present evidence;
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- Part 2 159 Code of Criminal Procedure

a request for investigative actions cannot be refused

5).
submit applications
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SITUATIONS from practice

Prosecutors substituted

each other, the right to challenges may be violated

and file challenges;

Url Additional information:

— Part 2 18 Code of Criminal Procedure

the right to act in one's native language

6). give evidence and explanations in his native language or a language he speaks;

Url Additional information:

— Part 2 18 Code of Criminal Procedure

right to a free translator

7). use the help of a translator for free;

Url Additional information:

- Part 6 166 Code of Criminal Procedure

The protocol is presented for review to all participants

8). get acquainted with the protocols of investigative actions carried out with his participation and submit comments on them;

9). participate, with the permission of the investigator or inquiry officer, in investigative actions carried out at his request, the request of his defense attorney or legal representative;

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— 124 Code of Criminal Procedure

complaint to the prosecutor, head of the investigative body

— 125 Code of Criminal Procedure

appeal to the court at the preliminary investigation stage

10). file complaints against actions (inaction) and decisions of the court, prosecutor, investigator and interrogating officer;

Url Additional information:

— clause 2

Plenum No. 29 the right to defend oneself by any legal means

Two different rights

Right to defense

- these are two different rights (to self-defense and to the assistance of a defender)

eleven). defend yourself by other means and methods not prohibited by the Criminal Procedure Code.

Return to the text of the Code of Criminal Procedure
Seek advice

Status of a suspect from the point of view of legal scholars

Scientific consultants constantly publish new comments on the Code of Criminal Procedure. Article 46 of the Code of Criminal Procedure of the Russian Federation is a model of immediate action if a suspect appears in a criminal trial.

From the moment a suspect appears in a criminal case, criminal prosecution begins actively and the main indictment version is developed. Carrying out this work means the beginning of the emergence of legal relations between an official authorized by the state, an official and a suspect of committing a specific criminal offense. The investigator or inquiry officer proves the guilt of the suspect, and he, in turn, defends himself from suspicion.

From the moment an authorized person decides to initiate a case and begin criminal prosecution of a person, which will significantly affect his rights and freedoms, the person is officially considered a suspect.

At what point is a person considered a suspect?

Lawyer Antonov A.P.

According to clause 3, part 1, art. 46 of the Code of Criminal Procedure of the Russian Federation, a person to whom a preventive measure has been applied before charges are brought in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation, is a suspect. The implementation of a preventive measure begins with the actual restriction of the freedom of the person to whom it is applied (imposition of certain types of responsibilities on him). Based on the wording of subparagraph. “b” clause 3, part 3, art. 49 of the Code of Criminal Procedure of the Russian Federation, the application of the preventive measure of detention begins with the actual detention of a person. These provisions allow us to conclude that all “persons suspected of committing a crime” who were actually detained in connection with the application to them in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation, a preventive measure in the form of detention, simultaneously with the beginning of the actual detention, they become suspects. In other words, the person actually detained (in pursuance of the decision to select a preventive measure) in the procedure under consideration is a suspect. Before the arrest, it did not have this status. But the actual detention in the case of detention is already carried out in relation to the suspect.

This circumstance allows us to draw an even more generalized conclusion: “a person suspected of committing a crime” (and this is also someone in respect of whom a decision on choosing a preventive measure has already been made, but has not yet been applied), this is a broader concept than the concept of “suspect ”, and, accordingly, replacing this term with the concept of “suspect”, as is done in some of the works, seems to be unacceptable. Any suspect is also a person suspected of committing a crime. But can there be persons suspected of committing a crime who are not suspects? The Constitutional Court of the Russian Federation considers this possible.

According to the Constitutional Court of the Russian Federation, since the constitutional right to the assistance of a lawyer (defender) cannot be limited by federal law, then in relation to its provision, the concepts of “accused”, and in our case, it seems, “suspect”, should be interpreted in their constitutional terms. legal, and not in the narrower sense given to them by the Code of Criminal Procedure of the Russian Federation. In order to implement this constitutional right, the Constitutional Court of the Russian Federation proposes to take into account not only the formal procedural, but also the actual position of the person against whom public criminal prosecution is carried out.

At the same time, the fact of criminal prosecution and, consequently, accusatory activity directed against a specific person can be confirmed by investigative actions carried out in relation to him (search, identification, interrogation, etc.) and other measures taken in order to expose him or her or indicating the presence of suspicions against him ( in particular, an explanation in accordance with Part 1 of Article 51 of the Constitution of the Russian Federation of the right not to testify against oneself). Since such actions are aimed at identifying facts and circumstances incriminating the person under criminal prosecution, he should be immediately given the opportunity to seek help from a lawyer (defender). In other words, the requirement, for example, part 1 of Art. 16 of the Code of Criminal Procedure of the Russian Federation, according to which “the suspect and accused are ensured the right to defense,” and a similar provision enshrined in Part 1 of Art. 49 of the Code of Criminal Procedure of the Russian Federation are subject to broad interpretation. Not only the suspect and the accused have the right to defense and counsel. And as a consequence of this, a person suspected of committing a crime may be neither a suspect nor an accused.

It is assumed that these are any persons against whom criminal procedural measures have been taken that actually limit their freedom and (or) personal integrity, including before they acquire the status of a suspect (accused) from the standpoint of criminal procedural law. A person may be a named subject of criminal proceedings from the moment criminal prosecution begins against him on behalf of the state, no matter in what forms it is implemented. Or, otherwise, in all cases where his rights and (or) freedoms are significantly affected or may be significantly affected by actions and (or) measures related to criminal prosecution.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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Circumstances of change in suspect status

A citizen ceases to be a suspect when one of the following circumstances occurs:

1. An act or indictment has been issued against the suspect, according to which he becomes an accused.
2. The criminal case is dismissed.
3. Criminal prosecution is terminated.
4. The detainee was released. No preventive measure is applied to him, and he is not notified that he is a suspect.
5. The preventive measure taken against the suspect was cancelled.

When one of the above facts occurs, a person can become either free or accused, depending on the circumstances.

The commented article reveals the rights of the suspect, but not in full. The full picture can be revealed through a comprehensive consideration of the provisions of criminal procedure legislation.

Responsibilities of the suspect

1. Appear before the inquirer, investigator and the court within the time prescribed by these persons, or notify in advance of valid reasons for the impossibility of attendance.
2. Comply with the rules of conduct in accordance with the preventive measure applied to him.
3. When taking a suspect into custody, he is obliged to comply with legal requirements put forward by the administration of the institution and observe the appropriate order at the place of location.
4. Agree to an examination, personal search, submitting samples for research, receiving medical care, conducting examinations, etc.

Failure to fulfill at least one of these obligations entails possible criminal prosecution. These include:

• Obligation to appear.
• Temporary removal from office.
• Drive unit.
• Seizure of property.

The list of measures may be supplemented depending on the circumstances.

Many complaints are received regarding violations of the rights and obligations of persons suspected of committing criminal offenses. In most cases, this is due to the negligent attitude of the inquiry and investigation staff during the criminal prosecution. Therefore, complaints filed by suspects and their representatives are considered with special care to prevent violations of their rights in the future.