Правовая природа уголовно-процессуального задержания и его соотношение с фактическим задержанием

Abstract

The article examines the essence and legal nature of criminal procedural detention, the correlation of criminal procedural detention with actual (physical) detention. Based on the results of studying various periods of the development of the institution of detention, generalizations have been made that expand the scientific understanding of it and significantly concretize it. Based on the analysis of doctrinal sources and legislative provisions, it is concluded that the actual detention (capture, forced delivery, forced detention of a person), which precedes the procedural detention and is carried out by law enforcement agencies in the performance of their tasks in maintaining law and order and public security and suppressing unlawful conduct, should be regulated by legal acts, the regulatory bodies, and it cannot be an object of criminal procedural regulation. Despite the fact that the procedural detention is an extension of the actual, these detentions differ in importance: the actual is the act of the subjects to forcibly capture and detain the person, the procedural action is against the already detained person. These activities vary by entity and by nature of the tasks they perform. The following detention algorithm is proposed: the law enforcement officer must draw up a document, either a report or a report indicating the time and place of the actual detention, as well as the time of arrival of the detainee. However, the time of actual detention must be included in 48 hours of pre-trial detention. A decision on procedural detention must be taken no later than 12 hours after the detainee’s arrival.