1. Investigative actions, provided for in Articles 178, Part Three, 179, 182 and 183 of this Code, are carried out on the basis of a decision of the investigator.

2. In the cases provided for in paragraphs 4-9, 11 and 12 of part two of Article 29 of this Code, investigative actions are carried out on the basis court decision.

3. Carrying out investigative actions at night is not allowed, except in urgent cases.

4. When carrying out investigative actions, the use of violence, threats and other illegal measures, as well as creating a danger to the life and health of the persons participating in them.

4.1. When carrying out investigative actions in criminal cases of crimes provided for in articles 159 parts one - four, 159.1 - 159.3, 159.5, 159.6, 160, 165 of the Criminal Code Russian Federation, if these crimes are committed in the area entrepreneurial activity, as well as Articles 159 parts five - seven, 171, 171.1, 171.3 - 172.2, 173.1 - 174.1, 176 - 178, 180, 181, 183, 185 - 185.4 and 190 - 199.4 of the Criminal Code of the Russian Federation, unreasonable given application of measures, which may lead to the suspension of legal activities legal entities or individual entrepreneurs, including the unreasonable seizure of electronic storage media, except for the cases provided for in part one of Article 164.1 of this Code.

5. The investigator, inviting participants in criminal proceedings specified in Chapters 6 - 8 of this Code to participate in investigative actions, verifies their identity, explains to them their rights, responsibilities, as well as the procedure for carrying out the corresponding investigative action. If a victim, witness, specialist, expert or translator participates in the investigative action, he is also warned of the responsibility provided for in Articles 307 and 308 of the Criminal Code of the Russian Federation. If an investigative action in a criminal case against accomplices of a crime involves a person in respect of whom the criminal case has been separated into separate proceedings in connection with the conclusion of a pre-trial agreement on cooperation with him, then he is warned about the consequences of failure to comply with the conditions and non-fulfillment provided for in Chapter 40.1 of this Code obligations stipulated by the pre-trial cooperation agreement, including in the case of deliberate reporting of false information or deliberate concealment of any significant information from the investigation.

6. When carrying out investigative actions, they may be used technical means and methods of detecting, recording and seizing traces of a crime and material evidence. Before the start of an investigative action, the investigator warns the persons participating in the investigative action about the use of technical means.

7. The investigator has the right to involve in participation in the investigative action executive body carrying out operational investigative activities, about which a corresponding note is made in the protocol.

8. During the investigative action, a protocol is kept in accordance with Article 166 of this Code.

Commentary to Art. 164 Code of Criminal Procedure of the Russian Federation

1. Investigative actions to collect evidence can be differentiated depending on the degree of infringement of individual rights and freedoms. Those that involve the use of coercion require the issuance of a special reasoned decision by the person conducting the investigation. Such a decision is announced to the participant in the process to whom it concerns and is binding on him. Part of the first commented article includes among such investigative actions: examination of the corpse, including its removal from the burial place (exhumation), examination, search and seizure.

2. A larger group of investigative actions based on the application of the most stringent coercive measures associated with the invasion of the sphere of individual rights and freedoms guaranteed by the Constitution of the Russian Federation requires a court decision for their implementation (and this is one of the largest democratic innovations of this Code of Criminal Procedure). There are only six such actions, namely: inspection of a home in the absence of the consent of the persons living in it, search of the home and personal search, seizure of objects and documents containing information about deposits and accounts in banks and other credit organizations, seizure of postal and telegraph correspondence , inspection and seizure of it in communication institutions, monitoring and recording of telephone and other conversations (see the text of Articles 29 and 186 of the Code of Criminal Procedure and the commentary thereto).

3. Carrying out investigative actions at night, i.e. in the period from 22 to 6 o'clock (see), is not allowed, except in urgent cases. An assessment of the situation from this point of view in each specific case is made by the official in charge of the criminal case, under his own personal responsibility, based solely on the interests of the case and the severity of the investigative action itself. For example, an urgent night inspection of the crime scene is a widespread phenomenon in investigative practice.

4. When carrying out investigative actions, the use of violence, threats and other illegal measures, as well as the creation of a danger to the life and health of the persons participating in them, is unacceptable. Evidence obtained in violation of these prohibitions is inadmissible. Inadmissible evidence has no legal force and cannot be used as the basis for accusations, nor used to prove any circumstances of the case (see).

5. When entering into legal relations with participants in various investigative actions, the official carrying out this action is obliged to verify the identity of this participant and explain to him in as much detail as possible his rights, duties, procedure and meaning of the action and responsibility. Of particular importance in the complex of rights of a participant in an investigative action is his right to make comments regarding the content of the protocol recording its progress and results. Failure by the investigator or interrogating officer to fulfill the above obligations may be regarded as a significant violation procedural order obtaining relevant evidence, entailing its recognition as inadmissible.

6. According to part six of the commented article, during investigative actions, technical means and methods for detecting traces of a crime and material evidence may be used. The current level of development of society makes it possible to widely use the achievements of science and technology in criminal proceedings, not only by experts and specialists, but also directly by those conducting the investigation. Such means used in investigative actions to collect evidence include photography, filming, sound recording and some others.

7. Photographs are used when examining the scene of an incident, things and documents, as well as when presenting them for identification, during a search, seizure, examination, investigative experiment, checking testimony on the spot in order to visually record the conditions of the investigative action, its progress and results. The resulting photographs can significantly complement the protocol of the corresponding investigative action, allowing participants in the process at subsequent stages of the criminal case to form a more complete and objective picture of the picture reflected in the protocol, and to consider details of evidentiary value. For similar purposes, when investigating crimes, filming is also used, which, unlike photography, allows you to record the investigative action in dynamics, which is especially valuable in production investigative experiment and checking readings on site.

8. Sound recording during the investigation and preliminary investigation is used as an additional (along with the interrogation protocol) means of recording the testimony of the accused, suspect, witness and victim. The person conducting the investigation, having decided to use sound recording, notifies the interrogated person about this (the latter’s consent is not necessary). All information recorded in the introductory part of the interrogation protocol, as well as the entire course of the investigative action, is recorded on magnetic tape. At the end of the interrogation, the sound recording is played back in full to the interrogated person. Additions to it are also recorded on the phonogram. The sound recording ends with a statement from the interrogated person certifying its accuracy. Testimony obtained during interrogation using sound recordings is entered into the interrogation protocol, which, in addition, must contain: a note about the use of sound recordings and notification of the interrogated person; information about technical means and conditions of sound recording; statement of the interrogated person; a mark on the playback of the sound recording; certification of the correctness of the protocol and sound recording by the interrogated and interrogated. The phonogram is stored with the criminal case and is sealed at the end of the investigation. If a sound recording of testimony is played back during another investigative action, a note must be made about this in the protocol of the corresponding investigative action.

9. A special group is formed by technical means with the help of which traces are recorded and removed (for example, fingerprinting means). The use of these forensic tools is usually the responsibility of a specialist, whose assistance the investigator has the right to use during the inspection of the crime scene, search, seizure and other investigative actions, which, however, does not exclude the right and possibility of their use by the investigator personally. If technical means (for example, metal detectors, diving equipment, etc.) are not forensic, then, naturally, their use falls entirely within the competence of the appropriate specialist. The arsenal of such means is not limited by law.

10. Success in solving a crime, especially a disguised crime committed organized group, largely depends on well-established interaction between the investigator and operational units. One of the forms of such interaction, thanks to which operatives receive first-hand the initial information they need to deploy operational investigative measures, is the personal participation of the operative in the investigative action. The law (part seven of the commented article) not only allows for this possibility, but also gives the investigator the right to involve an operative officer in participating in investigative actions, including in the interrogation of a suspect or accused. The fact of the participation of the operative officer, his role and the questions that he asked the interrogated person with the permission of the investigator are reflected in the protocol recording the progress and results of the investigative action.

1. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen or has reached this age but is suffering mental disorder or lagging behind in mental development, the participation of a teacher or psychologist is mandatory. When carrying out these investigative actions with the participation of a minor who has reached the age of sixteen, a teacher or psychologist is invited at the discretion of the investigator. The specified investigative actions with the participation of a minor victim or witness under the age of seven years cannot last without a break for more than 30 minutes, and in total - more than one hour; for those aged from seven to fourteen years - more than one hour, and in total - more than two hours, over the age of fourteen - more than two hours, and in total - more than four hours a day. During the performance of these investigative actions, the legal representative of a minor victim or witness has the right to be present.

2. Victims and witnesses under the age of sixteen are not warned of liability for refusal to testify and for giving knowingly false testimony. When explaining to these victims and witnesses their procedural rights, provided for respectively in Articles 42 and 56 of this Code, they indicate the need to tell the truth.

3. The investigator has the right not to allow a minor victim or his witness to participate in the interrogation legal representative and (or) a representative if this conflicts with the interests of a minor victim or witness. In this case, the investigator ensures the participation in the interrogation of another legal representative of the minor victim or witness.

4. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen or has reached this age but suffers from a mental disorder or is lagging in mental development, in criminal cases of crimes against sexual integrity minor participation a psychologist is a must.

5. The use of video recording or filming is mandatory during investigative actions provided for by this chapter, with the participation of a minor victim or witness, except in cases where the minor victim or witness or his legal representative objects to this. Video recordings or filming materials are stored in a criminal case.

Commentary to Art. 191 Code of Criminal Procedure of the Russian Federation

1. The peculiarity of the procedure for interrogating a minor witness is that third parties are involved in participation in this investigative action from among those whom the child or adolescent trusts and who can provide the appropriate psychological atmosphere for interrogation.

2. Such persons are:

1) teacher, i.e. school teacher or preschool teacher;

2) legal representatives, i.e. parents, adoptive parents, guardians or trustees, representatives of institutions and organizations in whose care the child or teenager is (clause 8 of Article 34);

3) other close relatives who are not covered by the concept of legal representatives, namely: siblings, grandparents.

3. To participate in the interrogation of a witness under the age of fourteen (young witness), a teacher is called to mandatory, and from the age of fourteen to sixteen years - at the discretion of the investigator, depending on the level of development of the interrogated, the subject of the interrogation and its complexity, as well as other circumstances of the case.

4. At the discretion of the investigator, determined by the same considerations, legal representatives, as well as close relatives of the minor (aged 16 to 18 years) witness, are summoned.

5. The investigator is obliged to explain to persons present during the interrogation of minors and minor witnesses that they have the right:

a) with his permission, ask questions to the witness;

b) make comments to be entered into the protocol regarding the procedure itself and the content of the investigative action, as well as the correctness of the recording of testimony, and ask for additions and clarification of this recording.

6. The investigator has the right to withdraw (withdraw) a question posed during interrogation by a person present, due to the fact that it is not related to the subject of proof or is leading.

Criminal Procedure Code, N 174-FZ | Art. 191 Code of Criminal Procedure of the Russian Federation

Article 191 of the Code of Criminal Procedure of the Russian Federation. Features of interrogation, confrontation, identification and verification of testimony with the participation of a minor (current version)

1. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen or has reached this age but suffers from a mental disorder or is lagging in mental development, the participation of a teacher or psychologist is mandatory. When carrying out these investigative actions with the participation of a minor who has reached the age of sixteen, a teacher or psychologist is invited at the discretion of the investigator. The specified investigative actions with the participation of a minor victim or witness under the age of seven years cannot last without a break for more than 30 minutes, and in total - more than one hour; for those aged from seven to fourteen years - more than one hour, and in total - more than two hours, over the age of fourteen - more than two hours, and in total - more than four hours a day. During the performance of these investigative actions, the legal representative of a minor victim or witness has the right to be present.

2. Victims and witnesses under the age of sixteen are not warned of liability for refusal to testify and for giving knowingly false testimony. When explaining to these victims and witnesses their procedural rights, provided for in Articles 42 and 56 of this Code, respectively, they are pointed out the need to tell the truth.

3. The investigator has the right not to allow his legal representative and (or) representative to participate in the interrogation of a minor victim or witness if this is contrary to the interests of the minor victim or witness. In this case, the investigator ensures the participation in the interrogation of another legal representative of the minor victim or witness.

4. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen years or has reached this age but suffers from a mental disorder or is lagging in mental development, in criminal cases of crimes against the sexual integrity of a minor, participation a psychologist is a must.

5. The use of video recording or filming is mandatory during investigative actions provided for by this chapter, with the participation of a minor victim or witness, except in cases where the minor victim or witness or his legal representative objects to this. Video recordings or filming materials are stored in a criminal case.

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New edition of Art. 191 Code of Criminal Procedure of the Russian Federation

1. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen or has reached this age but suffers from a mental disorder or is lagging in mental development, the participation of a teacher or psychologist is mandatory. When carrying out these investigative actions with the participation of a minor who has reached the age of sixteen, a teacher or psychologist is invited at the discretion of the investigator. The specified investigative actions with the participation of a minor victim or witness under the age of seven years cannot last without a break for more than 30 minutes, and in total - more than one hour; for those aged from seven to fourteen years - more than one hour, and in total - more than two hours, over the age of fourteen - more than two hours, and in total - more than four hours a day. During the performance of these investigative actions, the legal representative of a minor victim or witness has the right to be present.

2. Victims and witnesses under the age of sixteen are not warned of liability for refusal to testify and for giving knowingly false testimony. When explaining to these victims and witnesses their procedural rights, provided for in Articles 42 and 56 of this Code, respectively, they are pointed out the need to tell the truth.

3. The investigator has the right not to allow his legal representative and (or) representative to participate in the interrogation of a minor victim or witness if this is contrary to the interests of the minor victim or witness. In this case, the investigator ensures the participation in the interrogation of another legal representative of the minor victim or witness.

4. When conducting an interrogation, confrontation, identification and verification of testimony with the participation of a minor victim or witness who has not reached the age of sixteen years or has reached this age but suffers from a mental disorder or is lagging in mental development, in criminal cases of crimes against the sexual integrity of a minor, participation a psychologist is a must.

5. The use of video recording or filming is mandatory during investigative actions provided for by this chapter, with the participation of a minor victim or witness, except in cases where the minor victim or witness or his legal representative objects to this. Video recordings or filming materials are stored in a criminal case.

Langants Kristina Leonidovna,
Private educational institution of higher professional education "Omsk Law Academy", Omsk

For development law society It is necessary to create effective mechanisms for the implementation of human rights, which should not be based solely on strengthening the capabilities of a certain category of persons. It is necessary to take into account, respect and formulate the rights of those who, due to objective reasons, are unable to independently speak out in their own defense. These persons include minors who, due to their age, mental development, intellectual capabilities, and social status, cannot fully understand the event that is happening to them, which in fact is a criminal offense.

Analysis of statistics for the period from 2003 to 2014 on the number of crimes, committed by persons under 18 years of age shows an obvious downward trend in juvenile crime rates. However, children become victims or witnesses criminal acts. The involuntary participation of children as victims or witnesses makes them, of course, participants in criminal proceedings. In this regard, there is a need to improve criminal procedural legislation regarding the participation of minors in pre-trial proceedings.

Thus, on January 1, 2015, changes to Art. 191 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) regarding the specifics of pre-trial interrogation, confrontation, presentation for identification and verification of testimony on the spot with the participation of a minor.

Changes were made to part one, the article was also supplemented by parts four and five. I would like to consider not all the changes, but only some problematic aspects. The establishment of specific time frames for carrying out individual investigative actions with minors of different age criteria is quite understandable. Main feature a preschooler is that his voluntary attention is quite unstable.

The child is easily distracted by extraneous stimuli, his attention is overly emotional, and he still has poor control over his feelings. At the same time, involuntary attention is relatively stable, long-lasting and concentrated. Schoolchildren are already able to study for quite a long time a certain type activities, control your behavior. Based on this, we can conclude that the duration of individual investigative actions is based on the general mental development of the child due to his age characteristics.

On this occasion, we conducted a survey of law enforcement officers (investigators, investigators, their managers, prosecutors) and 75% of respondents answered positively to the question “Is it advisable, in your opinion, to establish in the Code of Criminal Procedure of the Russian Federation (Article 191) age differentiation of the time of the total duration of interrogation, confrontation, presentation for identification and verification of testimony?

During the investigative action, a break is provided, after which it can be resumed. More than 60% of respondents noted the need to legislate the break time during investigative actions provided for in Part 1 of Art. 191 Code of Criminal Procedure of the Russian Federation. However, the time frame for this break is not specified in the law. If we take as a basis the provisions of Art. 425 of the Code of Criminal Procedure of the Russian Federation, then the break time is also not indicated in them. Therefore, it is necessary to be guided by the general norm, namely Art. 187 Code of Criminal Procedure of the Russian Federation. But is it advisable to set a break of more than 1 hour if the duration of the investigative action with the participation of a minor victim or witness under the age of seven cannot exceed 30 minutes, and for those aged from seven to fourteen years - no more than one hour? During this time, a child of primary school age can switch his attention to something else and forget what he was talking about earlier. Over such a long period of time, a minor can be influenced by various factors, both his personal and external circumstances, as a result of which the investigator (interrogator) will have to re-establish psychological contact with him, which will require time that could be used more productively.

The absence of a clearly established break in investigative actions may give rise to complaints from a lawyer (representative) or legal representative of a minor victim or witness against the actions of the investigator (inquiry officer), since law enforcement officers, at their discretion, have the right to set any time for a break (for example, 5-7 minutes) .

It should be noted that today, both in educational and scientific literature, there are no recommendations regarding the duration of the break.

A break during the investigative action provided for in Art. 187 of the Code of Criminal Procedure of the Russian Federation, respectively, constitutes ¼ of the time of continuous interrogation. If we apply this criterion to calculate a break during investigative actions with the participation of a minor witness or victim, then this will not be enough to restore strength and rest for the child. For example, in a 30-minute interrogation, ¼ of the portion is 7.5 minutes for a break, and as stated earlier, this will create some difficulties.

We believe that for a break in the course of investigative actions involving a minor, regardless of his procedural status it is necessary to establish ½ of the time of continuous investigative actions.

During the survey process, practitioners were asked to indicate the necessary, in their opinion, time for a break during interrogation, confrontation, presentation for identification and verification of testimony with the participation of a minor witness or victim, depending on their age. As a result, 35% of respondents answered that for a victim or witness under 7 years of age, the break time should be 30 minutes, 27.5% of respondents indicated a break of 60 minutes, a 15-minute break was considered appropriate by 10% of respondents and a 40-minute break - 10% of practical workers .