Unified institutions of physical capture of a person suspected of committing a crime and detention of a suspect in criminal proceedings: demarcation issues

The lawfulness of detention of a person suspected of committing a criminal offense depends to a large extent on the completeness and quality of its legal regulation. The CPC in 2012, unlike its predecessors, supplemented this institution with certain innovations in the field of detention of a suspect in a criminal offense. Thus, the right to detain a suspected person was vested with an authorized official (Article 208 of the CPC); in Art. 209 the moment of detention of a person was determined, and in Art. 210 actions were determined to deliver the detained person to the pre-trial investigation body. The legislator, introducing these novels, sought to put under more reliable control the protection and protection of the rights of detained persons. Nevertheless, the author states that these short stories, unfortunately, did not lead to the desired effect in the practice of detention, and sometimes even complicated its application. Sui generis of this phenomenon was the fact that the legislator, having given the term "detention of a person" a very wide meaning, was not at the same time concerned with the delimitation (demarcation) of the actions of executive authorities to physically capture a person suspected of committing a criminal offense, and the actions of subjects of criminal proceedings authorized by law to issue a decision on the detention of a person suspected of committing a criminal offense. And this entailed a false transfer of meanings of the norms of criminal procedural law to the situation of carrying out pre-procedural actions by representatives of the executive branch. Therefore, in the end, this led to the fact that, firstly, outside the criminal proceedings, that is, in the time of carrying out actions to physically capture a person, procedural documents began to be drawn up - protocols for inspecting the scene of the incident and seizing objects or documents from a person; secondly, the enigmatic "authorized officials" of the executive authorities received powers that were not inherent in them to conduct legally significant actions within the framework of criminal proceedings; thirdly, savvy lawyers began, not without success, to demand to recognize the actual detention without the participation of a lawyer as a significant violation of the right to defense, and the obtained evidence as inadmissible evidence; fourthly, legal uncertainty arose regarding the grounds for a person to acquire the status of a suspect. The author of the article substantiated the urgent need to eliminate the ganges of the legal technique of normalizing the legal regulations for the detention of a person suspected of committing a criminal offense, and proposed specific changes and additions to the current CPC and procedural legislation regulating the activities of executive authorities regarding the use of physical seizure of a person suspected of committing criminal offenses.

detention, suspect, criminal proceedings, demarcation