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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 19, 2013 No. 41

About practice of application by courts of the legislation on measures of restraint in the form of detention, house arrest, pledge and prohibition of certain actions

(as amended on 11-06-2020)

The right to liberty is fundamental human right. The constitution of the Russian Federation, the conventional principles and rules of international law and international treaties of the Russian Federation allow possibility of restriction of right to liberty only in that measure in what it is necessary in the purposes and in the procedure established by the law determined by the law.

Restrictions of the rights and freedoms can be justified by public interests if such restrictions meet the requirements of justice, are pro rata, proportional and necessary for the protection purposes constitutionally of significant values. In case of permission of the questions connected using the legislation on measures of restraint, courts proceeding from presumption of innocence should observe balance between the public interests connected using measures of procedural coercion and importance of right to liberty of the personality.

Taking into account it the measures of restraint limiting freedom - detention and house arrest - are applied only according to the judgment and only in that case when application of softer measure of restraint is impossible.

The right of everyone who is imprisoned or limited in it as a result of detention or house arrest, on application concerning its pledge or other measure of restraint is provided in the criminal procedure legislation of the Russian Federation according to article 9 of the International Covenant on Civil and Political Rights and article 5 of the Convention on human rights protection and fundamental freedoms.

Due to the introduction of amendments to the criminal procedure legislation and the questions arising at courts in case of application of measures of restraint in the form of detention, house arrest, pledge and prohibition of certain actions and also taking into account legal line items of the Constitutional Court of the Russian Federation and the European Court of Human Rights the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make to courts the following explanations:

Detention

1. In case of decision making about election of measure of restraint in the form of detention and about prolongation of term of its action courts need to provide observance of the rights of the suspect, person accused guaranteed by article 22 of the Constitution of the Russian Federation and following from article 5 of the Convention on human rights protection and fundamental freedoms.

2. Election as measure of restraint of detention is allowed only after check by court of justification of suspicion of participation of person in the committed crime. Reasonable suspicion assumes availability of data that this person is involved in the committed crime (it is overtaken in case of crime execution or directly after its making; the victim or eyewitnesses specified this person as on the committed crime; on this person or his clothes, in case of it or in its dwelling explicit traces of crime, etc. are found).

Draw the attention of courts that check of justification of suspicion of participation of person in the committed crime cannot come down to the formal reference of court to availability at bodies of preliminary inquiry of sufficient data that person is involved in the committed crime. By consideration of the petition for election of measure of restraint in the form of detention the judge shall check whether contains the petition and the materials attached to it the specific data specifying participation in the committed crime of this person and to give to these data assessment in the decision.

Leaving by the judge without check and assessment of justification of suspicion of participation of person in the committed crime shall be regarded as fundamental breach of the criminal procedure law (parts 4 of article 7 Code of Criminal Procedure of the Russian Federation) attracting cancellation of the resolution on election of measure of restraint in the form of detention.

Checking justification of suspicion of participation of person in the committed crime, the court has no right to enter discussion of question of guilt of person.

3. Proceeding from provisions of article 97 Code of Criminal Procedure of the Russian Federation any of the measures of restraint provided in article 98 Code of Criminal Procedure of the Russian Federation including measure of restraint in the form of detention, cannot be chosen to the suspect or the person accused if during judicial session sufficient data are not established to believe that the suspect or the person accused will disappear from inquiry, pretrial investigation or court, or can continue to be engaged in criminal activities, or can threaten the witness, other participants of criminal trial, destroy proofs or in other way to prevent criminal proceeding.

Courts should mean that availability of such data does not testify to need of application to person of the most severe measure of suppression in the form of detention yet. Resolving issue of election of measure of restraint and of prolongation of term of its action, the court shall discuss in each case possibility of application concerning the suspect or the person accused of crime execution of any category of other, softer, than detention, measures of restraint regardless of availability of the petition for it of the parties, and also from production stage on criminal case.

4. Concerning the suspect or the person accused of crime execution of small weight the court owing to part 1 of article 108 Code of Criminal Procedure of the Russian Federation has the right to choose measure of restraint in the form of detention only in exceptional cases provided that along with the bases, the stipulated in Article 97 Codes of Criminal Procedure of the Russian Federation, there is one of the following circumstances: the suspect or the person accused has no permanent residence in the territory of the Russian Federation; his personality is not identified; it breaks earlier chosen measure of restraint; it disappeared from bodies of preliminary inquiry or from court.

Absence at the suspect or the permanent residence accused of crime execution of small weight in the territory of the Russian Federation in the absence of the bases, the stipulated in Article 97 Codes of Criminal Procedure of the Russian Federation, cannot be the single basis sufficient for election concerning its measure of restraint in the form of detention. At the same time absence at person of registration in the territory of the Russian Federation can be only one of proofs of absence at it of the permanent residence, but in itself stipulated in Item 1 part 1 of article 108 Code of Criminal Procedure of the Russian Federation the circumstance giving the grounds for election concerning its measure of restraint in the form of detention is not.

Absence at the suspect or the person accused of the documents proving his identity in itself does not testify to circumstance availability, stipulated in Item 2 parts 1 of article 108 Code of Criminal Procedure of the Russian Federation.

In case of permission of petitions for election in exceptional cases detention as measure of restraint concerning the suspect or the person accused of crime execution of small weight courts should discuss possibility of application of other, softer, measures of restraint even in the presence of any of the circumstances specified in Items 1 - 4 parts 1 of article 108 Code of Criminal Procedure of the Russian Federation.

5. As the bases for election of measure of restraint in the form of detention such actual circumstances which testify to real possibility of making by the person accused, the suspect of the actions specified in article 97 Code of Criminal Procedure of the Russian Federation, and impossibility of free implementation of criminal trial by means of application concerning person of other measure of restraint can be acknowledged.

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