The sub-item of the Article fifteen of the fifth Code of Criminal Procedure of the Russian Federation, as in force on July, 1st, 2002, specifies, that the moment of actual detention is the moment established in the Code of Criminal Procedure of the Russian Federation, of actual deprivation of the freedom to move of the suspect in the commitment of a crime.
              In practice the moment of actual detention looks as follows. The suspect in commitment of a crime is delivered into the local militia office, then, the operative of the local militia office takes his argument in writing, then this argument in writing and other materials (for example, the Survey of the place of the incident, the argument of eyewitnesses of the occurred event) are transferred to the investigating officer. The investigating officer studies them and makes a decision on the institution of criminal proceedings or about the refusal of their institution, then he applies to the public prosecutor for the support of his legal position about the institution of criminal proceedings or the refusal of their institution. Then, the investigating officer draws up the report of the case on the detention. From the moment of drawing up of the report on the detention the person gets the status of the suspect. How much time may pass from the moment of actual detention and the delivery into the office of preliminary inquiry, to the investigating officer or public prosecutor till drawing up of the report? How is it possible to determine the concrete time of the delivery of the arrested person into the office of preliminary inquiry, to the investigating officer, public prosecutor? Who should fix this moment, whether it should be the operative, who puts the person under the arrest or the investigating officer? The practice shows, that this time may last from several hours up to 24 hours. There is no secret for anybody, what these hours may mean. It is known also to people working in law-enforcement bodies and it is also familiar to not working there, but who has been once arrested or who is somehow familiar with it, for example, a relative of the arrested person. The compulsion to testify is just at this time sometimes applied by the officers of law-enforcement bodies against the requirements of the Law.
              Finally, the new Code of Criminal Procedure of the Russian Federation has been accepted, it should fill in the holes contained in the Code of Criminal Procedure of RSFSR of 1960. But the problem on the fixation of actual time of the detention has been not properly regulated in the new Code of Criminal Procedure. We will refer to the text of the Code of Criminal Procedure of the Russian Federation, where in the Article 92 the order of the detention of the suspect is specified: after delivery of the suspect into the office of preliminary inquiry, to the investigating officer or public prosecutor in no more than 3 hours the report of the detention should be drawn up, in which there should be the mark about that, the suspect was explained the rights stipulated in the Article 46 of the Code of Criminal Procedure of the Russian Federation. In the report the date and the time of the detention, the place, the grounds and the motives of the detention of the suspect, the results of his search and other circumstances of his detention should be specified. The report of the detention should be signed by the person, who drawn it up, and by the suspect.
              The text of the Law of criminal procedure fixes the time of drawing up of the report of the detention which should not exceed three hours from the moment of the delivery of the suspect into the office of preliminary inquiry, to the investigating officer, to public prosecutor. But the moment of actual detention before the moment of the delivery into the office of preliminary inquiry, to the investigating officer, to public prosecutor is reflected in the law formally: “... The report should contain .. the date, time, place, the grounds and motives of the detention of the suspected... “ (Item 2 of the Article 92 the Code of Criminal Procedure of the Russian Federation). One-year practice after coming in action of the Code of Criminal Procedure of the Russian Federation has shown the following. The actual, that is, the real time and the date of the detention in the report are indicated only in the case, when the difference between the actual detainment and the time of the delivery into the office of preliminary inquiry, to the investigating officer, to the public prosecutor is minimal, for example, up to two - three hours. If the difference makes some hours, as it occurs in practice already after coming of the new Code of Criminal Procedure of the Russian Federation in force, the time and the date of the detention are deformed, the actual time and the date are never reflected in the report.
              I shall cite the example from the practice of realization of the rule of law specified in the Article 92 of the new Code of Criminal Procedure of the Russian Federation. At preliminary inquiry the search was made on July, 24th from 21 o’clock till 23 o’clock in the apartment of Mrs. V., as a result of which the heroin-like substance was found. Mrs. V. was delivered handcuffed into one of the local militia offices of Moscow. The next day after actual detention on July, 25th at 15 o’clock she was interrogated by the investigating officer as a witness and warned about the criminal responsibility for giving false testimonies and for the refusal of giving evidence (?!). Thus, she has not been explained the provision of the Article 51 of the Constitution of the Russian Federation, and she has not also been given the right of defense. On July, 25th at 17 o’clock the investigating officer drawn up the report of her detention. But she was actually arrested on July, 24th at 23 o’clock, when she was put the handcuffs on, but not when she was delivered to the investigating officer.
              If the current legislation on criminal procedure contained the mechanism of the realization of the professed standard about the actual detention, the arbitrariness connected with the falsification of the time of the actual detention would become impossible. I wonder, whether the legislator, having formulated the moment of the arrest as an actual detention, thus, recognized, that there might be another, not actual, but a formal detention, specified in the report.
              In order to prevent the possibility of the falsification of the moment of the detention, in our opinion, it is necessary to determine and to concretize the time of actual detention of the suspect in the law of criminal procedure. This measure will, certainly, strengthen the guarantees of inviolability of the person. We believe, the actual detention will be the moment, when the militia-men put on the handcuffs to the arrested person. This moment should be fixed in time and be registered necessarily in the report of the detention, which should be drawn up at presence of the defender, if the arrested person does not refuse of his services. In connection with the specified circumstances it is necessary to add the text of the Item 2 of the Article 92 of the Code of Criminal Procedure of the Russian Federation with the following: “The report of the detention should be applied with the official report about the actual detention, drawn up by the militia-man, who carried out the detention, and both the suspect and his defender should be acquainted with its contents”. The term determined by the law (three hours), during which the report should be drawn up will matter only in case, if it is adjusted not only with the mechanism of the fixation of the time of actual detention, but also by the time of the delivery of the arrested person into the office of preliminary inquiry, to the investigating officer, to the public prosecutor. Otherwise, the suspect can not be protected from probable abuse of powers on the part of the law-enforcement body. We believe, that the report of the arrest should be signed not only by the arrested person, but also by his lawyer. The militia-men, who arrested the suspect, and the investigating officer, who drawn up the report, should bear the personal responsibility for falsification of the time and the date of the detention. In our opinion, the Item 1 of the Article 92 of the Code of Criminal Procedure of the Russian Federation should be added with the following text: “The suspected should be delivered into the office of preliminary inquiry, to the investigating officer or to the public prosecutor not later than in two hours from the moment of actual detention, except for cases of the execution of pressing investigation actions with the participation of the suspect”.The detention of the suspect is a compulsion measure touching the most significantly the personal freedom of the citizen. Leaving him without qualified legal assistance stipulated with the Part 1 of the Article 48 of the Constitution of the Russian Federation, should not take place, because it is fraught with rather negative consequences. So, on July, 17 at 12 o’clock on one of the markets of Moscow there was a combat between the merchants and the operatives of the Municipal Department of Internal Affairs of Moscow. The Task Unit (OMON) delivered many persons into the local militia office “Pechatniky” for the inquiry. The reports of the detention specified differently the time of the detention - July, 18th from 18 o'clock till 24 o'clock. But actually all arrested persons were delivered into the militia office simultaneously by one bus on July, 17th at 14 o’clock, that was confirmed later by witnesses – the persons from the Task Unit (OMON), who took part in the detention and delivery of suspects. In materials of the case there were no official reports about those, who particularly arrested the suspects. Thus, being actually arrested, the suspects have been for more than one day in the status of witnesses, and were deprived of the possibility to get the qualified legal assistance. Such lawlessness would have not arisen, if the lawyer had been at the delivery of the arrested persons. The lawyer would have found out who, when and for what grounds had arrested the citizens. The participation of the lawyer in inquiry actions would exclude the possibility of the application of the compulsion to the suspect. The introduction of the above-stated supplements into the Article 92 of the Code of Criminal Procedure of the Russian Federation will allow to avoid abusing on the part of the investigating officer in relation to the arrested persons and will defend against the arbitrariness of the operatives of law-enforcement authorities.

Elena Rudatskaya, lawyer, the Moscow Regional Bar

Journal of Law «Black Holes» in Russian Legislation» № 3, 2003 г. С. 12-14