1. If a suspect or accused, detained or taken into custody, has minor children, other dependents, as well as elderly parents in need of outside care left without supervision and assistance, then the investigator, interrogating officer takes measures to transfer them to the care of close relatives, relatives or other persons or placement in appropriate children's or social institutions.
2. The investigator, interrogating officer takes measures to ensure the safety of the property and home of the suspect or accused, detained or taken into custody.
3. The investigator or interrogating officer shall notify the suspect or accused of the measures taken.
The State Duma introduced amendments to the Criminal Procedure Code on the property and dependents of a prisoner
The State Duma adopted for consideration bill No. 430797-5 “On Amendments to the Criminal Procedure Code of the Russian Federation,” concerning measures to care for the children and dependents of a suspect or accused and ensure the safety of his property. This is reported in the materials of the chamber.
As its author, State Duma Deputy V. Chernyavsky, notes in the explanatory note to the document, the bill was developed in order to optimize the procedure for implementing the provisions of Art. 160 and 313 of the Criminal Procedure Code of the Russian Federation.
Taking a person into custody (detention) may be accompanied by the investigator (interrogating officer) taking measures to care for the children and dependents of the accused (suspect) and ensuring the safety of his property (Article 160 of the Code of Criminal Procedure of the Russian Federation). This norm is intended to ensure the implementation of international standards in the field of protecting the interests of the individual. According to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by Resolution No. 43/173 adopted by the 43rd Session of the UN General Assembly on December 9, 1988, “the appropriate authorities shall take measures to ensure, in accordance with national law, , where necessary, assistance to family members of detained or imprisoned persons who are dependent on them, in particular minors, and pay particular attention to the proper care of children left without supervision” (principle 31).
Provisions of Art. 160 of the Code of Criminal Procedure of the Russian Federation form the legal basis for reducing the negative social consequences of detaining or imprisoning a person. However, this initial positive potential is offset by the lack of a clear algorithm for the actions of the investigator (interrogator) in a specific situation, which casts doubt on the very possibility of fulfilling the will of the legislator. The law does not establish who needs to be placed in the care of minor children if the corresponding responsibilities cannot be assigned to relatives or other persons. A more comprehensive account of the norms of civil, family and criminal procedural legislation is required, especially since the norms of various branches of law are not always consistent with each other.
When a person is detained or taken into custody without supervision and assistance, in addition to minor children, other family members who are dependent on the accused (suspect) may remain. And ensuring supervision of them and providing the necessary assistance is also the responsibility of the investigator (interrogating officer). Meanwhile, regulations in the field of social services for adults do not take into account the circumstances provided for in Art. 160 Code of Criminal Procedure of the Russian Federation. The mechanism for organizing supervision and assistance to persons in need, enshrined in them, does not contain effective measures to respond to situations arising in the field of criminal proceedings. Taking into account their diversity, the investigator and interrogator must be able to give binding instructions to both the guardianship and trusteeship authorities and other social or medical institutions to take urgent measures to organize supervision, care and assistance to these persons.
Use in Art. 160 of the Code of Criminal Procedure of the Russian Federation, the concept of “elderly parents” creates additional difficulties. The legislator does not determine when the appropriate age occurs. Regulatory acts regulating the procedure for social services to the population use a different concept - “elderly citizens”. These include women over 55 and men over 60. Among them, social assistance is provided to those who cannot independently satisfy the basic needs of life. In order to optimize law enforcement, it is proposed to amend Art. 160 of the Code of Criminal Procedure of the Russian Federation, taking into account the peculiarities of legislation in the system of social security law for citizens.
In addition to measures of care for minors and other dependents, the investigator (interrogating officer) is obliged to take measures to ensure the safety of the property and home of the detained (prisoned) person. Such a decision is made in the absence of family members or other relatives who live with him, or if they refuse to perform the function of storing property. Art. 160 of the Code of Criminal Procedure does not stipulate what actions should be taken by the investigator (interrogating officer) in this case.
It is proposed that priority should be given to the right of the accused (suspect) to independently determine the fate of his property. To do this, the investigator (inquiry officer) needs to create conditions so that the accused can personally carry out the actions provided for by law aimed at protecting his property rights. Thus, the accused can issue a power of attorney to someone to manage his property (Article 185 of the Civil Code of the Russian Federation), or enter into an agreement on trust management of property (Article 1012 of the Civil Code of the Russian Federation). Federal Law of the Russian Federation dated July 15, 1995 No. 103-FZ “On the detention of suspects and accused of committing crimes” allows the participation of suspects and accused in custody in civil transactions with the permission of the person or body in whose proceedings there is a criminal case (Articles 17, 29).
Taking by the investigator (inquiry officer) the measures provided for in Art. 160 of the Code of Criminal Procedure of the Russian Federation, the legislator associates only with the use of detention or detention against a person. However, a person’s long-term absence from the family is also possible due to the application of other coercive measures to him. We are talking about placing the accused (suspect) in a medical or psychiatric hospital for a forensic examination (Article 203 of the Code of Criminal Procedure of the Russian Federation). Lack of direct mention in Art. 160 of the Code of Criminal Procedure of the Russian Federation of this measure of procedural coercion forces the use of analogy, which is not always optimal. In Art. 160 of the Code of Criminal Procedure of the Russian Federation does not formulate the procedure for consolidating the measures taken by the investigator (inquiry officer). It is obvious that the corresponding decision must be formalized in the form of a resolution. In addition, the facts of the transfer of children or other dependents of the accused (suspect) into care, as well as the transfer of property for storage, require recording. The protocol must contain a system of legal and social obligations of the person taking care of the child and the state. If a minor is transferred to another family outside the legal regime provided for by family law, his rights and interests must be specifically taken into account. It must also be taken into account that a child, represented by a parent subjected to detention or imprisonment, loses not only a loved one, but also a legal representative. Taking into account the lack of legal capacity of minors and minors, this limits their ability to exercise civil rights. Awareness of the need to fulfill the requirements listed in the protocol may become an indispensable condition for the transfer of children in accordance with Art. 160 Code of Criminal Procedure of the Russian Federation. Only in this case will the child be provided with proper supervision and assistance.
Some of the listed shortcomings are also found in the provisions of Art. 313 Code of Criminal Procedure of the Russian Federation. It is necessary to ensure regulatory consistency of Art. 160 of the Code of Criminal Procedure of the Russian Federation with Art. 313 of the Code of Criminal Procedure of the Russian Federation “Issues resolved by the court simultaneously with the pronouncement of the sentence.” We are talking about introducing the concept of “elderly parents”. Moreover, care measures should be applied only to those who need outside care. This group must include not only elderly parents, as follows from the current version of the article, but also other dependents.
To ensure the safety of property left unattended, in connection with a person’s conviction to imprisonment, in Part 2 of Art. 313 of the Code of Criminal Procedure of the Russian Federation, it is important to establish the procedure for taking appropriate measures, taking into account the opinion of the convicted person. He must himself determine the fate of his property and submit a corresponding petition.
The adoption of the bill will eliminate existing problems in implementing the requirements of Art. 160 and 313 of the Code of Criminal Procedure of the Russian Federation. The establishment of a more understandable mechanism will facilitate the adoption of more legal decisions by the investigator (inquiry officer) and the court and will lead to a reduction in negative consequences when imposing a sentence associated with deprivation of liberty, the author of the bill emphasizes.
Below is the text of the bill:
» Article 1 Make the following changes to the Criminal Procedure Code of the Russian Federation (Collected Legislation of the Russian Federation, 2001, No. 52, Art. 4921): 1) Article 160 of the Criminal Procedure Code of the Russian Federation (Collected Legislation of the Russian Federation, 2001, No. 52, Article 4921) shall be stated as follows:
“Article 160. Care measures for children and dependents of a suspect or accused and ensuring the safety of his property
1. If the suspect or accused, in respect of whom a decision is made to detain, take into custody or place in a medical or psychiatric hospital for a forensic examination, has unattended and unattended minor children, elderly parents or other dependents in need of outside care , then the investigator, interrogating officer takes urgent measures to transfer them to the care of close relatives, relatives or other persons, or to place them in appropriate children's, social or medical institutions.
2. The investigator, inquiry officer has the right to oblige the guardianship and trusteeship authorities, social protection authorities, as well as other social or medical institutions to take urgent measures to organize supervision, care and assistance to the persons specified in part one of this article.
3. The investigator, interrogating officer, at the request of the suspect or accused and at his expense, takes measures to ensure the safety of property and home left unattended due to detention, detention, or placement in a medical or psychiatric hospital. The suspect or accused is explained the possibility, with the permission of the investigator or interrogating officer, to carry out actions provided for by the legislation of the Russian Federation, aimed at protecting his property rights.
4. The investigator or inquiry officer shall issue a resolution on the adoption of the measures provided for by this article. The transfer to the care of minor children of the suspect or accused, his elderly parents or other dependents in need of outside care and assistance, as well as the transfer to storage of unattended property is recorded in the protocol.
5. The investigator or interrogating officer shall immediately notify the suspect or accused of the measures taken.
2) in Article 313: a) part one should be stated as follows:
"1. If a person sentenced to imprisonment is left without supervision and assistance with minor children, elderly parents or other dependents in need of outside care, the court, simultaneously with the verdict of guilty, shall issue a ruling or order to transfer these persons to the care of close relatives, relatives or other persons, or placing them in appropriate children's, social or medical institutions.”;
b) part two after the words “left unattended,” add the words “at his request.” «
- Prisoners' rights, Arrest, Prisoners, Bill
- State Duma of the Russian Federation
- Code of Criminal Procedure of the Russian Federation
