Adjudication of the issue of existence (absence) of grounds for detention in the course of preliminary investigation (international standards and Russian practice)

The procedure of detention provided for in the Criminal Procedure Code of the Russian Federation is the basis for the judgement of detention at different stages of criminal procedure. However, both current Russian legislation and international legal standards play an important role in the regulation of this issue. The article examines the following standards: 1) a provisional character of the institution of preventive measures. According to this character any preventive measure including detention is used to secure a due behavior of the accused; 2) reasonableness of court judgements in relation to the use of detention as a preventive measure. The standard of reasonableness involves the need to establish one of the circumstances. Firstly, the accused (suspect) will continue his criminal activity. Secondly, the accused (suspect) can escape from investigative bodies and courts. It is pointed out in the article that this fact should be based not on suppositions but on concrete evidence. Some judgements of the European Court of Human Rights (ECHR) support this provision. Thirdly, the accused does not have any permanent domicile and work. Though, the ECHR states that the existence of the third factor is not enough to substantiate that a person will escape or commit another crime. Moreover, it is believed that if a person has a foreign passport or foreign citizenship he will escape. Fourthly, the existence of criminal convictions. However, the argument about previous convictions is not a sufficient one and can be used in the aggregate with other circumstances pointing to a possible unlawful behavior of the accused. The application of the given standard has been illustrated by court practice. Fifthly, coercion of witnesses but according to the ECHR this circumstance should be checked carefully. Sixthly, the standard of substantiality of the judgement of detention presumes the reference to the necessity of investigative actions. Seventhly, a gang offence. Eighthly, a job title of the suspect. Ninthly, personal characteristics of the suspect. The article deals with the problem connected with the statement of motivation of detention during a pre-trial in criminal cases and during the execution of sentences. Thus, not being legal instruments, the standards under consideration have a significant regulatory influence on the interpretation and application of criminal legal norms.

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