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the criminal case and criminal prosecution termination in connection with death of the person who are coming under to bringing to criminal liability, in the light of the presumption of innocence

In the theory of criminal trial the criminal case termination is considered in different ipostasjah - as the written pleading (remedial [56] action or the decision), as the juridical fact, as the legal institution and due process of law.

With a view of our research we consider the criminal case termination as one of forms of the termination of preliminary investigation [57 [58] (or proceeding), consisting in the criminal case permission in essence without adjudgment and caused by an establishment bodies of preliminary investigation go court of circumstances with which presence the law connects a duty or possibility of end of criminal prosecution and in this connection criminal proceedings as a whole. The most debatable is the question on possibility of realisation of a principle of the presumption of innocence at the criminal case and-or criminal prosecution termination at a stage of preliminary investigation.

The first Soviet UPK (1922, 1923гг.) Did not provide possibility of the termination of criminal case by bodies of preliminary investigation. Such decision could be accepted exclusively court, as well as till 1917. But item 207 UPK of 1922 already assigned a duty to the inspector to constitute in the presence of the bases for phase-out motivirovannoe the decision which went to court for decision-making. In the subsequent powers on the criminal case termination have been definitively transferred investigatory agencies. As marks K.A.Savelev, actually since this moment the inspector has acquired the right to establish circumstance of business, to state them a legal estimation and to make the total decision, establishing guilt or innocence of the person in committing a crime [59]. Since this moment discussion about legitimacy of the termination of criminal case by the inspector as such decision could be accepted not only for the reason "absence in the actions, attributed convicted, the corpus delicti", "absence of the complaint of the victim on affairs about the crimes initiated not differently as under those complaints", and behind reconciliation convicted with sustained, but also behind death convicted, the prescription expiration, owing to amnesty or the pardon (item 4) also originates. If on reabilitirujushchim to the bases it is possible to recognise the criminal case termination without reserve as normal way of the permission of criminal case [60] which "always means full and doubtless innocence of the person made accountable" [61] the right of body of preliminary investigation to cease criminal case and-or criminal prosecution on the bases which are nereabilitirujushchimi, and by that to establish guilt of the person in the legal literature till now it is not considered indisputable.

Especially sharply there was a question on such formulation of item 204 UPK RSFSR of 1923 as "insufficiency of proofs" which, despite explanations of scientists about inadmissibility of its treatment as incomplete or partial innocence [62], left on image convicted an indelible stain. Similar character the formulation of item 208 UPK had also RSFSR of 1960. In operating UPK the Russian Federation contains already essentially other approach based on the presumption of innocence - the absence of proof of participation convicted of committing a crime means its innocence and attracts the verdict of "not guilty" (subitem 2 ч.2 item 302) or dismissal of action in a kind with non-participation of the person in committing a crime (item 1 ч.1 item 27).

Including this question solved, we will address to the analysis of other positions of the criminal procedure law which keep possibility of acceptance by body of preliminary investigation of final judgement about guilt of criminal case convicted by the termination on another nereabilitirujushchim to the bases and, hence, keep the urgency. Us this question interests exclusively because death of the person coming under to bringing to criminal liability, is among nereabilitirujushchih the bases of the termination of criminal case, therefore the method of adoption of such decision in connection with death should consider general rules of the termination of affairs on all such bases.

The serious occasion to discussion of a question on legitimacy of the termination of criminal case at presence in actions of the convicted corpus delicti has given UPK RSFSR of 1960 which provided possibility by means of dismissal of action to release convicted from the criminal liability in connection with change of conditions (item 6) and replacement with its measures of social influence, for example, transfer convicted on bails (item 9), and later and measures of administrative responsibility (item 6.2 [63]). Moreover, item 10 UPK RSFSR gave the right without criminal case excitation to direct materials of check upon committing a crime on consideration of the comrades' court, the Commission on Juvenile Affairs or to transfer the person who has committed a crime, to bails. As a guarantee of legality and validity of such decision of the inspector and agency in charge of preliminary investigation compulsion of preliminary reception of the consent of the public prosecutor was provided.

For doubt in the right of body of preliminary investigation to solve a question on clearing of the criminal liability the Soviet authors found the bases in the constitutional positions about justice realisation only court, during later period - in started to win a recognition a principle of the presumption of innocence. From these basic positions the criminal case termination at presence in actions of the person of all elements essential to the offence means, that the actual decision of a question on guilt is accepted by bodies of preliminary investigation, though and at the constitutional level, and in UPK RSFSR of 1960, as well as in operating UPK the Russian Federation, was proclaimed what to recognise the person guilty of committing a crime the court has the right only. All it has allowed the majority of scientists obosnovanno to specify on not conformity to principles of realisation of justice only court and presumptions of innocence of procedure of the termination of criminal case on nereabilitirjushchim to the bases bodies of preliminary investigation. [64] Voizbezhanie the obvious contradiction, UPK 1960 in the item of item 6 10 instead of the term "crime" used a word-combination "the act containing signs of a crime", though a question that such act containing signs of a crime if not a crime, it is possible to carry to number of the rhetorical. As was considered, that "possibility of a recognition of the person guilty of committing a crime besides a court sentence should be excluded completely and resolutely", power on the termination of criminal case and clearing of the criminal liability was offered to place on trial that "the court could subject directly guilty to the official penalty, or admit it to bail the public, or charge to the comrades' court or the Commission on Juvenile Affairs a choice and realisation of measures of social influence" [65].

Besides, in a science it was constantly underlined, that possibility of the termination by the inspector of criminal case provokes it to acceptance of illegal decisions.

In particular, I.L.Petruhin, till last days standing up for to protection of the presumption of innocence, on the basis of a practical material wrote, that the unreasonable termination of criminal case on nereabilitirujushchemu to the basis quite often takes place in a situation when the inspector "did not manage to solve a crime completely, authentically to establish the criminal, to reveal the most essential episodes of criminal activity, to prove heaviest of the shown charges, to establish persons, whose role in fulfilment of crimes was more active in comparison with the person in which relation has put is ceased" [66]. Expansion of possibility of the termination of criminal cases with transfer of materials to the Commission on Juvenile Affairs, the comrades' court from, etc. author considered as the reason of reduction of quantity of verdicts of "not guilty". [67]

However, as it is represented, the problem of conformity of item 4 ч.1 item 24 UPK the Russian Federation to a principle of the presumption of innocence is not settled a problem of overcoming of errors of practice or abusings from the officials which reasons are more serious, than legislation lacks, a question on the subject of decision-making on the criminal case termination. The main problem, in our opinion, consists in definition of the correct approach to understanding of the presumption of innocence. The matter is that the principle of the presumption of innocence cannot be identified with a principle of realisation of justice only court, the presumption of innocence is not limited to position about justice realisation only court, it is much wider. This thesis is represented extremely important for our research.

The question on why the problem of the termination of criminal case in a science "is adhered" to the thesis that "only the court has the right to recognise the person guilty of committing a crime", has a clear historical explanation. In the conditions of long negation of the presumption of innocence as "the decayed dogma of the bourgeois right" [68], was not possibilities to realise following from its maintenance corrected differently, as through other basic postulates even after considerable warming of political atmosphere in our country. Attempts to fix a principle of the presumption of innocence in the text of Bases of the criminal trial of USSR and the union republics accepted on December, 25th, 1958 by the second session of the Supreme body of the USSR of the fifth convocation (further, Bases), have not crowned success. Instead of offered in the project of Bases of the true formula of the presumption of innocence, in the text of the law (item 7) position about impossibility of a recognition guilty and awardings punishment without a court sentence has been fixed. The similar formulation has appeared in item 13 UPK RSFSR (1960) and in the Constitution of the USSR 1977г later.

These positions of the law have been regarded by scientists as the presumption of innocence convicted as they not only opened essence of justice as exclusive judicial prerogative, but also obviously led to a conclusion that while the sentence is not taken out, convicted it is impossible to name guilty. However, as wrote M.S.Strogovich, it was no still the presumption of innocence in full sense of this concept. Actually specified positions have fixed a principle of realisation of justice only court.

The thesis about that only the court has the right to recognise the person guilty of committing a crime was used by opponents of investment of bodies of preliminary investigation by power to cease criminal case on nereabilitirujushchim to the bases as the main argument. Using it, A.M.Larin, I.A.Libus, I.L.Petruhin, JU.I.Stetsovsky, A.V.Tantsjura, etc. specified, that the termination of criminal cases at a stage of preliminary investigation on nereabilitirujushchim to the bases breaks a principle of the presumption of innocence and [69 [70] [71] [72] supposes a recognition of the person guilty out of legal proceedings. The given position has been expressed and in the conclusion of Committee of the constitutional supervision of the USSR from September, 13th 1990г. Thus, the sentence (in a case of impossibility of execution of punishment it is necessary to release from it) can be result of consideration of criminal case if it is a question of a guilt establishment, only.

The stated position was supported not by all scientists-protsessualistami. Some of them believed, that at the criminal case termination on nereabilitirujushchim the bases guilt is not established as recognise as guilty the court can only. N.V.Vasilev similarly argues: the establishment of fault the public prosecutor and the inspector has preliminary character and constitutes the precondition not the criminal liability, and clearing of it [73 [74] [75], and V.J.Chekanov and R.Kussmaul approve, that the person is considered innocent while the return is not established by a court sentence including in cases of the termination of criminal case on nereabilitirujushchim to the bases at a stage of preliminary investigation. [76]

Rational grain, certainly, is and in such approach. Really, irrespective of the bases of the termination of criminal case, the person in which relation it is ceased, legallistically in the statutory order, guilty is not recognised and consequently the criminal liability has not incurred and sudimym is not. At the same time in the decision about the criminal case termination, in business materials, in data of the crime reporting and

The persons who have made them the fact of fulfilment by the person of a crime that can have other adverse consequences for the person - not ugolovnopravovogo, and not only the legal character, not dependent on is fixed what subject - the inspector or court such decision is accepted.

Thus, considering a question on conformity to a principle of the presumption of innocence of positions of the law, allowing to cease criminal case on nereabilitirujushchemu the person to the basis, we come to conclusion that the key role in it is played by legal consequences of the corresponding remedial decision. The decision having criminally-legal consequences, such as punishment and a previous conviction, has the right to accept only court.

Today it is a position of the Russian legislator. UPK the Russian Federation has not kept positions known to the former law on clearing of the criminal liability with replacement with its measures of social influence and administrative responsibility on the basis of the decision of the inspector or the investigator. Thus possibility of clearing of the criminal liability of minors with application of forced measures of educational character is kept, but it is realised, according to offers of semicentenial prescription, can be only judicially (item 427 UPK).

At the same time, UPK the Russian Federation allocates investigatory agencies with the right to cease criminal case in cases of reconciliation convicted with the victim, active repentance, and on affairs about economic crimes - on any, provided in the item of item 24 and 27 UPK the Russian Federation to the basis, or the basis provided by item 76.1 UK the Russian Federation, under condition of the full indemnification of the damage caused by a crime.

Not looking at that the criminal procedure law does not provide uniform procedure of clearing of the criminal liability, it is possible to speak [77] about the tendency - legal proceedings of the termination of criminal case are applied when the person released from the criminal liability is exposed to other forced measures - to measures of educational character, the penalty. In all other cases the criminal prosecution termination is possible on the basis of the decision of body of preliminary investigation.

Without dependence from that who makes the decision on the criminal case and-or criminal prosecution termination (the established fact of committing a crime by the person in which relation criminal prosecution is carried out should be court or bodies of preliminary investigation) by the moment of acceptance of such decision, i.e. the criminal liability basis is established. Whether means it, what the decision of the inspector, the investigator or court is the certificate of a recognition of the person guilty?

Trying to prove distinctions between guilt ascertaining in the decision of the inspector, the investigator and the guilt recognition, containing in a court sentence, scientific put forward different arguments. One considered, that the recognition guilty at the termination of criminal prosecution does not carry official character [78 [79], others specified that the establishment of guilt the inspector does not destroy a presumption innocence completely as degree of reliability of the conclusions made the inspector and court, different. There is also an opinion that at decision-making on the termination of criminal case of wine is not established.

We cannot agree with one of these positions. The decision of the inspector about the criminal case termination, certainly, has official character as the subject making this decision is the participant of the criminal trial carried UPK the Russian Federation to the party of charge, carrying out the criminal prosecution which is official activity, having the public purposes, on behalf of the state, that is ex officio. [80 [81] [82] As an official and authentic conclusion about guilt of the person in which relation criminal case stops on nereabilitirujushchim to the bases, the decision of the inspector it was considered and in the Plenum Decision

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The Supreme Court of the Russian Federation from 29.04.1996г. № 1 "About the adjudication" (item 7). A little differently, but as a whole in the same spirit speaks about it item 24 of the new

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Decisions №55 "About the adjudication" from 29.11.2016 years. It means, that the decision of the inspector about the criminal case termination in a sense is valid prejuditsii though it admits a science not all [83 [84].

Considering gravity of the consequences, attacking the decision basis about the criminal case termination, in committing a crime, it is possible to consider a question on necessity of an establishment of guilt of the person closed. Reliability of conclusions of the body which is carrying out preliminary investigation, stated in the decision about the criminal case termination not

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Can be smaller than reliability of the conclusions stated in a sentence. Doubtful or doubtful from the point of view of reliability the conclusion means neustanovlenie fulfilment by the person of a crime, hence, as obosnovanno concludes A.JU.Kiryanov, distinction of decisions about the criminal case termination on nereabilitirujushchemu to the basis and a court verdict of guilty consists not in degree of reliability of conclusions about guilt. [85 [86]

On necessity of an establishment by the moment of the termination of criminal case on nereabilitirujushchim to the bases of all elements essential to the offence including guilts of the person the instructions and in law positions contain. So, according to item 75 UK the Russian Federation from the criminal liability can be released the person for the first time the committed crime of small or average weight. The similar formulation is used also other articles UK the Russian Federation (item 76,76.1 item, 76.2, 78, 85 and 90 UK the Russian Federation).

Nevertheless, it would be senseless to deny, that the decision of the inspector and a court sentence - written pleadings different in the value. Conclusions about the guilts containing in these certificates, also are various. As correctly marks JU.B.Nekrasov, in the decisions accepted in a stage of preliminary investigation, it is a question not of a recognition of the person guilty, and about validity of guilt as charge component. The proved confidence of the inspector what convicted has committed a crime, is not still good cause for a definitive conclusion about guilt. The conclusion of the inspector about guilt of the convicted is based on an estimation by it of set it of the collected and checked up proofs for this reason the conclusion under the general rule comes under to careful check and the impartial assessment independent court in sostjazatelnoj and public, that is fair, the procedure of proceeding providing

Comprehensive investigation of circumstances of a crime by the parties equal in rights. Distinction in conclusions of the inspector and court is defined by their distinction funktsionala: the inspector is obliged to prove guilt of the person in committing a crime, the court on the basis of the proofs investigated by it is obliged to resolve

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Criminal case.

Other situation develops when business about a crime does not reach court when owing to those or other circumstances final judgement is accepted by the inspector. The decision about the termination of criminal business/criminal prosecution on nereabilitirujushchim to the bases

pravoprimeniteljami it is regarded as the certificate of an establishment of guilt of the person, however it does not substitute for itself a sentence of court and, hence, "is not [87 [88] certificate by which guilt convicted of that sense as it is provided item 49 of the Constitution of the Russian Federation" [89] is established. About what sense goes here there is a speech, the Constitutional Court of the Russian Federation does not explain, but to answer this question with a view of our research it is obviously important.

Defining the position, we start with following reasonings.

Having fixed the presumption of innocence as an independent principle of criminal trial, the Russian legislator, apparently, has provided realisation ч.2 item 6 UPK which speaks about refusal of criminal prosecution innocent as to one of two constituting appointments of criminal trial. If to exclude criminal abusings of officials of investigation agencies bodies, inquiries, Offices of Public Prosecutor of judges, the question on refusal of criminal prosecution of the innocent can seem senseless - nobody intends to prosecute obviously innocent persons criminally. Against what the legislator about what warns warns? The answer becomes clear if to treat the presumption of innocence not as abstract idea, and as set of concrete legal instructions, both directly operating, and other instructions of a smaller generality refracting in set.

The presumption of innocence - not simply one of basic principles of the criminal trial, it is it sistemoobrazujushchim the beginning, that characteristic of criminal trial which transforms it from crime control means into a guarantee of the rights and personal freedoms [90 [91]. Without the presumption of innocence criminal trial is "the special order of excitation precisely regulated by rules of law, investigations, considerations and permissions of affairs about crimes, no less than executions of sentences (definitions, decisions)". The Criminal trial constructed by a principle of the presumption of innocence, is a system of the state guarantees, first of all, for convicted.

The presumption of innocence of the convicted guarantees its inviolability and assigns to the inspector and the public prosecutor a duty to prove its fault, to confute arguments about innocence. The court role consists in that comprehensively and objectively to investigate and estimate all proofs. The conclusion about guilt of the person becomes result of such research and an estimation, to make which the court and anybody other has the right only. In it just communication of the presumption of innocence with a principle of realisation of justice only court also is shown. Adjudication by a court sentence - is the resolution of dispute of fault.

Reformatting of criminal trial on the basis of competitiveness promoted expansion in it of the optional beginning assuming including "autonomy of the person from the state in the decision of a question on protection of individual interest by the order rights", so, and the right to plead guilt. Such understanding of the presumption of innocence is put in pawn in norms of international law. In item 2 of item 11 of the General declaration the presumption of innocence is formulated as follows: "Each person convicted of committing a crime, has the right to be considered (that is to consider itself our note. - JU.M.) innocent until...". In item 2 of item 14 of the International pact about the civil and political rights from 16.12.1966г. It is told: "Everyone convicted of the criminal

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Crime has the right to be considered innocent, while... ".

The formulation of a principle of the presumption of innocence, offered in item 49 of the Constitution of the Russian Federation and item 14 UPK the Russian Federation ("... Convicted of committing a crime it is considered innocent...") specifies, first of all, on a duty of a society, the state and as, it is paradoxical, inspector to consider its innocent. [92 [93]

Such treatment of the presumption of innocence is caused by aspiration to overcome a heritage of the Soviet criminal trial which problems have been subordinated to public interests and which therefore was considered as the original tool of crime control, and exposure of the criminal - as much more significant value, than maintenance of the rights of the citizen involved in sphere of criminal procedure activity. [94] observance and protection of the rights of the suspect convicted, the victim and other participants of the criminal trial were considered not as an independent problem, and only as the conditions providing the decision of a problem "disclosings of each crime and exposure of the criminal, inevitability and justice of requital for each committed crime". [95 [96]

With acceptance new UPK the Russian Federation and change of appointment of the criminal trial, transition to adversary procedure the understanding of a place of the person in criminal trial has changed also. According to same item 6 UPK the Russian Federation the purpose of the modern criminal trial is not punishment guilty or their attraction to the criminal liability, and protection of the personal rights by investigation of the committed crime. But protection cannot be imposed contrary to desire to be protected - it in this case turns to a duty. Therefore to the person the right to be considered innocent is guaranteed until it feels requirement for this right; with a recognition convicted the fault, this requirement disappears.

In a science it is noticed, that "the presumption of innocence creates favorable conditions for development of conciliatory (compromise), reconciliatory and other alternative forms of the permission of criminally-legal conflicts, providing protection of the rights and legitimate interests of suspected and convicted persons". A recognition convicted fault as optionality display, expansion

To which it is peculiar to adversary procedure, means absence or the dispute termination on a question defining a subject of proceeding, in this case about guilt and, thus, eliminates necessity of its proving. As marks V.A.Lazareva, "the simplified method of adoption of a judgement provided by a law in force under condition of diligent performance by all subjects criminally -

Remedial activity of the duties provides possibility of the fair permission of criminal case "[97 [98]. The requirements following from

Principle of the presumption of innocence are provided with legality of application of considered procedures, and also the right convicted on protection.

It is necessary to agree and that refusal convicted from realisation of separate competences provided with the presumption of innocence does not mean objective cancellation of the presumption of innocence and the protective mechanisms guaranteed by it [99]. However in the conditions of refusal of charge of effort of bodies of criminal prosecution convicted from contest can and should be directed not on fault proving, and on maintenance of freedom of will.

Considering the presumption of innocence as a guarantee of the right convicted on protection, we can return to a problem of the termination of criminal case on nereabilitirujushchemu to the basis - criminal case cannot be ceased, if convicted against it objects. Statutory communication of the termination of criminal case and-or criminal prosecution with absence of objections from convicted is a direct consequence of the presumption of innocence. The consent to the criminal case termination in exchange for clearing of the criminal liability means a certain sort the transaction (the contract, the agreement), voluntary for both parties, any of which is not obliged to such cooperation. Agreeing on clearing of the criminal liability, convicted pleads guilt. Not pleading guilt, convicted manufacture continuation on business and proceeding with a view of the rehabilitation have the right to demand. At disagreement of criminal prosecution convicted with the termination on nereabilitirujushchim to the bases, criminal proceeding proceeds under general rules UPK the Russian Federation (ч.2 item 27 UPK the Russian Federation). Maintenance to the suspect, convicted the right to object to the termination of criminal case and to demand carrying out of full and all-round proceeding, it is obviously necessary a condition of observance of a principle of the presumption of innocence at the criminal case termination on nereabilitirujushchemu to the basis.

All stated above allows to draw a conclusion that the criminal case termination on nereabilitirujushchim to the bases does not break a principle of the presumption of innocence only under a condition podtverzhdennosti fault suspected (convicted) by the proofs collected on business and at maintenance convicted the right to object to the termination of criminal case and to insist on its consideration in the general order. At the same time at the criminal case termination on nereabilitirujushchim to the bases the person does not admit guilty committing a crime. The recognition of the person guilty on sense of item 49 of the Constitution of the Russian Federation, is result of destroying a presumption of innocence in open competition of the parties equal in rights, at the termination of criminal case necessity of destroying a presumption of innocence is absent, the official guilty does not admit. The subject, making the decision on clearing of the criminal liability without carrying out of high-grade proceeding, relying on proofs confirming charge and the consent convicted, p r e d p about l and g and e t convicted guilty, but the presumption of innocence remains uncontradicted [100]. Taking into account stated it is possible to consider, that in the basis of the decision on the termination of criminal case unlike a sentence the proved assumption of guilt of the convicted lays.

Stated above concerns and the decision on the criminal case termination in connection with death suspected (convicted) (item 4 ч.1 item 24 UPK the Russian Federation). However validity of the assumption of guilt in committing a crime died in which relation the question on the criminal case termination is solved, is under the big doubt in a kind of absence of possibility to receive not only the consent, but is frequent also indications of the suspect (convicted, the person who were coming under to bringing to criminal liability) to provide its right of defence. It in the conditions of the operating criminal procedure legislation does not allow to judge all conformity to a principle of the presumption of innocence of the decision on the termination of criminal case concerning the died suspect of preliminary investigation (convicted) at a stage. In the conditions of absence of the subject who is coming under to bringing to criminal liability, decision-making on the termination of criminal case demands essentially other procedure, than the criminal case and-or criminal prosecution termination on the rests nereabilitirujushchim to the bases.

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A source: Meshcherjakova Julia Olegovna. CRIMINAL PROCEEDING Concerning the DIED. The dissertation on competition of a scientific degree of the master of laws. Samara - 2018 . 2018

More on topic the criminal case and criminal prosecution termination in connection with death of the person who are coming under to bringing to criminal liability, in the light of the presumption of innocence:

  1. ž 2 Bases and conditions of the termination of criminal case and criminal prosecution, their classification.
  2. ž 4. Others nereabilitirunntsis the bases of the termination of criminal case and criminal prosecution.
  3. ž 3 Exclusive bases of the termination of criminal case and prosecution.
  4. Death as the juridical fact and the basis of the termination of the criminal liability
  5. Tarasov Ivan Semyonovich. the CRIMINAL CASE And CRIMINAL PROSECUTION TERMINATION ON nereabilitirujushchim to the BASES. The dissertation on competition of a scientific degree of the master of laws. Nizhni Novgorod -, 2007 2007
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  8. ž 1 criminal case and criminal prosecution: their parity.
  9. CHAPTER 3. Features of the criminal liability for the organised criminal activity and unification of criminal legislations of Russia, Belarus and Ukraine in sphere of counteraction to criminal societies (the criminal organisations)
  10. Realization of the right of defence of the person, enquired to delivery for criminal prosecution, at application to it of criminal procedure compulsion