Causing harm during the detention of the person who committed the crime

In most countries, the actions of persons who arrest a criminal, including with harm to him, are regulated by criminal procedure law ^[3] . However, there are states in which detention is regarded as a criminal institution.

So, in the Criminal Code of Uzbekistan, the corresponding norm is provided for by Art. 39. In determining the extent of the harm inflicted, it is proposed to take into account the power and capabilities of the detainee, his state of mind and other circumstances related to the fact of detention. The right to detention is granted not only to specially authorized persons, but also to victims , as well as other citizens ^[4] .

The Criminal Code of Latvia explicitly sets the limits for the harm caused during detention: if the crime caused material damage , it is permissible to cause the detainee light or less serious bodily harm; if this person has committed murder, it is permissible to cause grievous bodily harm, but only if such a person cannot be detained in another way (Article 142) ^[4] .

Art. 38 of the Criminal Code of the Russian Federation establishes the conditions for recognizing the detention of a criminal lawful. It is not a crime to cause harm to the person who committed the crime when he is detained for delivery to the authorities and to prevent the possibility of committing new crimes, if it was not possible to detain such a person by other means and the excess of necessary measures was not allowed.

These goals are alternative: it is permissible to detain a person in the absence of an immediate danger of a socially dangerous assault by a detainee. Moreover, the detention is carried out in order to bring him to the authorities and thereby prevent the commission of new crimes.

Clarifications regarding the application of the norm on the detention of a criminal are also contained in the Decree of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19 “On the application by the courts of the legislation on necessary defense and harm in the detention of the person who committed the crime”.

Conditions of lawfulness of detention

You can detain a person who committed an act, which by its objective (external) signs is perceived as a crime ^[5] . At the same time, it is impossible to detain persons who are known to be detainees who have not reached the age of criminal responsibility, or who are insane, since such persons cannot commit crimes. Persons who have committed a crime should include persons who committed both a completed and an unfinished crime, as well as accomplices of the corresponding crime. In the event of the commission of a crime by several persons, harm is possible only in relation to those accomplices whom it was not possible to detain by other means.

Detention may be based on a reasonable assumption of the commission of a crime by that particular person; it is not necessary that any procedural document be issued in relation to this person (a decision to institute criminal proceedings , a decision to bring as an accused , a sentence , etc.) ^[6] . Detention of a convicted person who is trying to avoid liability is allowed. It is forbidden to cause harm to a person who committed not a crime, but another offense , administrative or civil .

Detention can be carried out both by specially authorized persons ( law enforcement officers ), and all other citizens who were eyewitnesses to the act, or for some other reason, with sufficient confidence can claim that they are dealing with a criminal ^[6] . According to the research of Yu. V. Baulin, detention in 32.7% of cases is carried out by the victim himself, in 40.8% by the public, and in 0.5% by law enforcement officials ^[7] . For law enforcement officials and other representatives of the authorities, criminal procedure legislation (Article 91 of the Code of Criminal Procedure of the Russian Federation ) and official charters may establish special requirements for the detention procedure.

Law enforcement officers, military personnel and other persons who are allowed by law to use weapons, special means, military and special equipment or physical force to fulfill the duties assigned to them by federal laws are not subject to criminal liability for damage if they acted in accordance with the requirements of laws , charters, regulations and other normative legal acts providing for the basis and procedure for the use of weapons, special means, military and special nicknames or physical force.

Detention is carried out for a strictly defined purpose: delivering a person to the authorities or suppressing his possible subsequent criminal attacks. Violence used in detention should help to achieve this goal and should correspond to the nature and degree of public danger of the act committed by the detainee ^[8] . If the violence is used for other purposes (for example, for the purpose of revenge ), such actions cannot be recognized as lawful.

When resolving the issue of the legality of causing harm during the detention of a person who committed a crime, the courts need to find out circumstances that indicate the impossibility of other means to detain such a person.

The law does not limit the range of acts with the commission of which harm may be caused during detention. The theory of criminal law and law enforcement practice proceeds from the illegality of the use in detention of persons who have committed crimes of minor gravity (for example, insult ), of any violence , which virtually eliminates the possibility of lawful harm during the detention of such a person.

The detainee must be sure that it hurts exactly the person who committed the crime (for example, when the detainee is a victim or an eyewitness to the crime, the detainee was directly indicated by the eyewitnesses of the crime as the person who committed it when on the detainee or on his clothes, with him or obvious traces of a crime were found in his home).

If during the detention a person was mistakenly mistaken about the nature of the wrongful act committed by the detained person, having taken for an administrative offense or the act of a person under the age of criminal responsibility, or a person in a state of insanity, in cases where the situation gave reason to believe that a crime had been committed, and the person who carried out the detention did not and could not be aware of the actual nature of the act committed, his actions should be judged by right s Article 38 of the Criminal Code, including the acceptable limits of harm.

Similarly, situations should be assessed when, during detention, a person was mistakenly mistaken as to who committed the crime, and the situation gave him reason to believe that the crime was committed by the person detained by him, while the person who carried out the detention did not and could not the fallacy of his assumption.

If during the detention the person did not realize, but due to the circumstances of the case, it should have been able to realize the indicated circumstances about the nature of the unlawful act and about who committed the crime, his actions are subject to qualifications under the articles of the Criminal Code of the Russian Federation, providing liability for crimes committed through negligence .

In the absence of these circumstances, the damage to a person during his detention shall be qualified on a general basis.

Limits of measures necessary to detain a person

Exceeding the measures necessary for the detention of the person who committed the crime shall recognize their apparent inconsistency with the nature and degree of public danger of the crime committed by the person detained and the circumstances of the detention, when the person is unnecessarily inflicted obvious harm. Such excess entails criminal liability only in cases of intentional harm.

The circumstances of detention (the situation of detention), which should be taken into account when determining the extent of permissible harm, should be understood as all circumstances that could affect the possibility of detention with minimal harm to the detainee (place and time of the crime, immediately followed by detention, number, age and gender detainees and detainees, their physical development, armament, the availability of information about the aggressive behavior of detainees, their entry into the gang, terrorist organizations, etc.).

Non-compliance of the harm with the nature and degree of public danger of the infringement must be obvious, that is, the harm caused during the detention must obviously not correspond to the harm that the detainee has previously caused. Most scholars believe that only causing death , serious or moderate damage to health if the limits of measures necessary to detain a person are exceeded (since liability only for these acts is provided for in part 2 of article 108, part 2 of article 114 of the Criminal Code of the Russian Federation ) ^[8] . There is another opinion, according to which harm of lesser gravity is punishable, and violation of the conditions of lawfulness of harm is considered as a mitigating circumstance (paragraph "g" of part 1 of article 61 of the Criminal Code of the Russian Federation) ^[3] .

Controversial is the possibility of causing death during detention. Most scientists nevertheless allow this possibility, provided that a person commits especially serious crimes , primarily against life , if there is a danger that the same person may commit new crimes ^[9] .