On the need to develop a unified approach to the content of the criminal procedural definition of "close relatives" in the regulation of legal relations in the Russian Federation related to the investigation of domestic crimes

Bulbacheva Anna Aleksandrovna PhD in Law Senior Researcher at the Department of Planning and Control over Scientific Research of the Scientific and Research Center of the Academy of Management of the Ministry of Internal Affairs of the Russian Federation 125171, Russia, g. Moscow, ul. Zoi I Aleksandra, , 8 anit-b@mail.ru Other publications by this author

Kotyazhov Andrei Valer'evich PhD in Law Associate Professor of the Department of Criminal Law Disciplines of the Moscow State University named after K.G. Razumovsky (PKU) 109004, Russia, g. Moscow, ul. Zemlyanoi Val, 73 amonitor69@mail.ru Other publications by this author

The unity of the domestic legal system is the main condition for the observance of constitutional rights and freedoms of citizens.

In the system of legislation of the Russian Federation, codified acts, in particular: the Family Code of the Russian Federation ^[1]. and the Criminal Procedure Code of the Russian Federation ^[2]. They are federal laws, i.e. elements of the legal system that have less legal force in relation to the Constitution of the Russian Federation ^[3]. and federal constitutional laws.

The Russian criminal procedure, according to its purpose (Article 6 of the Code of Criminal Procedure of the Russian Federation), has a clearly expressed human rights essence, and its core is the norms-principles of criminal procedure law (Articles 7-12 of the Code of Criminal Procedure of the Russian Federation), corresponding to constitutional norms (Chapter 2 of the Constitution of the Russian Federation).

At the same time, the criminal procedure norm fixed in paragraph 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation, regarding the attribution to close relatives of a spouse, spouse, adoptive parents and adopted children, contradicts the content of the first part of Article 51 of the Constitution. This circumstance introduces inconsistency into the legal system and is the cause of defects in law enforcement.

At the same time, the list of "close relatives" established by the Family Code in the Criminal Procedure Code of the Russian Federation is interpreted specifically. The evaluative nature of many provisions of the criminal procedure law, taking into account the relationship of kinship, matrimony and properties, allows for their arbitrary interpretation, which does not always correspond to the true intention of the legislator. The content of interpersonal relationships in this area is also not clearly defined.

In this context, we should agree with A.S. Dezhnev that "The lax, sometimes incorrect use in the Criminal Procedure Code of the Russian Federation of the borrowed concepts of "relative", "close persons" practically does not limit the discretion of the law enforcement officer in their interpretation. There are problems with determining the list of persons covered by these concepts, although its correct establishment depends, firstly, on the endowment of citizens with appropriate powers and the degree of participation in legal proceedings, and secondly, the exercise of rights and obligations by criminal prosecution authorities" ^[4].

Investigation and judicial review of a criminal case, including crimes in the family and household sphere, is often associated with the emergence in the criminal process, along with criminal law and criminal procedure, civil and family legal relations (For example, a civil claim A civil claim can be filed only after the initiation of a criminal case (adjudication of the relevant resolution) and until the end of the judicial investigation during the trial of this case in the court of first instance (part 2 of Article 44 of the Code of Criminal Procedure of the Russian Federation)).

As the investigative and operational practice shows, the structure of violent crime in the family and household sphere is dominated by intentional infliction of serious harm to health (21.1%), murder (5.8%), causing minor harm to health, beatings and the threat of murder (54.8%). Of the total number of crimes registered in the field of domestic crimes, 80.8% are crimes committed on the basis of a quarrel, and only 2.9% are due to jealousy. More than half (53%) of crimes were committed with the use of weapons, ammunition, special means, household items. In a special row, it is necessary to single out crimes that are related to violence committed against women and children, who make up 73% of all victims of violent assaults ^[5]. In 2021, 313 murders and attempted murders remained unsolved, 463 facts of intentional infliction of serious harm to health, due to the failure to identify the person to be brought as an accused ^[6]. In our opinion, this is often associated with the exercise of the right to witness immunity (In accordance with paragraph 40 of Article 5 of the Criminal Procedure Code of the Russian Federation, witness immunity is the right of a person not to testify against himself and his close relatives, as well as in other cases provided for by this Code.), including in criminal cases of familydomestic and other violent crimes, witnessed by the spouse, spouse, parents, children and other close relatives of the suspect or accused ^[7].

The object of our research is legal relations arising in criminal proceedings in connection with the implementation of part one of Article 51 of the Constitution of the Russian Federation and paragraph 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation, the subject is activities aimed at the realization of the constitutional right to witness immunity.

The historical analysis of the criminal procedure legislation of the Soviet period allows us to conclude that its dominant focus is on the protection of public interests, with weak protection of individual rights related to witness immunity. For example, only in Article 65 of the Code of Criminal Procedure of the RSFSR (1922) and Article 61 of the Code of Criminal Procedure of the RSFSR (1923) was an indication fixed on the circle of persons who could not be interrogated as witnesses. These included the defenders of the accused in the case and persons who, due to their physical and mental disabilities, are not able to correctly perceive phenomena of significance in the case and give correct testimony about them. At the same time, in the future, the legislator abolished the "privilege of silence", public interests became the main focus of protection. The main essence of the directions of the criminal policy of the Soviet state was its unilateral exclusive focus on serving and expressing the interests of the state, as a rule, to the detriment of the interests of the individual ^[8].

The Code of Criminal Procedure of the RSFSR of 1960, like its predecessors, has also been repeatedly amended and supplemented during its existence. In total, more than a thousand amendments and additions have been made to the Code over the years of its existence, but the provisions regulating witness immunity have not been fixed.

On December 26, 1991, the USSR ceased to exist.

On January 22, 1992, in the conditions of a deep political crisis and confrontation in the highest echelons of power, the Decree of the Supreme Council of the Russian Federation approved the Provision on the constitutional commission established to draft a new Constitution of the Russian Federation. In the same year, two working groups were created to improve criminal procedure legislation: one under the State Legal Department under the President of the Russian Federation, the other under the Ministry of Justice of the Russian Federation. It was assumed that each of these groups, acting independently, on the basis of a creative competition, would develop its own version of the draft of the new CPC, the best of which would be presented to the legislator.

In our opinion, such parallel work in the conditions of almost simultaneous submission and discussion by the legislator of a number of draft laws, ultimately, could cause a discrepancy in the content of constitutional and criminal procedural norms on the regulation of witness immunity.

Today, the legal definition of "close relatives", in these legal acts, is given different content.

According to the first part of Article 51 of the Constitution of the Russian Federation, which establishes the right of witness immunity: "No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law."

Thus, spouses (husband and wife) are normatively removed from the category of close relatives.

A similar approach is enshrined in Article 14 "Circumstances preventing marriage" of the Family Code, based on the content of which "close relatives" include:

1) relatives in the direct ascending and descending line (parents and children, grandparents and grandchildren),

2) full and incomplete (brothers and sisters who have a common father or mother).

A different approach is used in the corresponding norm of the Criminal Procedure Code. So, in accordance with paragraph 4 of Article 5 of the Criminal Procedure Code of the Russian Federation, "close relatives" are a spouse, spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.

Thus, the introduction of spouses into the content of the definition of "close relatives" does not comply with the Constitution of the Russian Federation and, in our opinion, is unjustified in the context of solving the tasks of criminal proceedings.

In this regard, the results of the survey of practitioners are indicative: 63% of them experience difficulties in applying procedural norms that take into account the circumstances of people's intra-family life. In modern conditions of increasing requirements for the accurate and uniform application of the law and increasing standards of proof, this circumstance cannot but be alarming" ^[6].

Investigative practice shows that spouses, their parents, children and other close relatives are often involved in the sphere of criminal proceedings in connection with the investigation of criminal cases of domestic crimes.

The bulk of such crimes (up to 80%) is violent. So, about 80% of murders and inflictions of various harm to health, about 70% of hooliganism and death threats are of a domestic nature, for other crimes these figures are slightly lower.

In our opinion, friendly and neighborly relations cannot be fully attributed to domestic ones. The latter arise in the form of everyday non-productive relationships between people about meeting their primary needs (food, clothing, housing, health maintenance, child care).Today, domestic relations are realized precisely within the family and are associated with the fulfillment of the duties assigned to parents or other persons (adoptive parents, trustees, guardians, guardianship and guardianship authorities) for the upbringing of minors.

Family and domestic crimes can be defined as socially dangerous acts committed on the grounds of envy, revenge, jealousy of the guilty person associated with the victim by family or other related communication.

The signs of domestic crimes include the following:

- the crime scene in the vast majority of cases is an apartment, a house, an entrance, a yard;

- marital or family relations between the perpetrator and his victim;

- the presence of a family and domestic conflict;

- violent nature of crimes;

- the commission of the majority of socially dangerous acts in a state of intoxication (alcoholic or narcotic);

- extensive use of weapons and items used as weapons;

- situational nature and high latency of such crimes.

Depending on the type of conflict between the offender and the victim, the following types of domestic crimes can be distinguished:

1. Crime as a result of a long or acute conflict initiated by the criminal;

2. Crime as a result of the conflict behavior of the victim;

3. Crime as a result of immoral behavior of the criminal and the victim;

4. Crime as a result of the guilty person resolving an intrapersonal conflict (divorce, loss of work, loss of a loved one) in a socially dangerous way.

During the preliminary investigation of a criminal case on a domestic and family crime, the right of everyone not to testify against himself is by virtue of being directly effective and must be ensured by a law enforcement officer on the basis of the requirement of direct effect of constitutional norms enshrined in Part 1 of Article 15 of the Constitution of the Russian Federation.

Therefore, the relevant officials of the bodies carrying out criminal prosecution are obliged to explain to the person suspected or accused of a crime his right to refuse to testify and to provide other evidence about the committed act, without exerting pressure or coercion on him in order to obtain evidence confirming the accusation.

At the same time, the consolidation in the Constitution of the Russian Federation of the right not to testify against oneself does not exclude the possibility of carrying out - regardless of whether the suspect or the accused agrees to it or not - various procedural actions with his participation (inspection of the scene, identification, obtaining samples for comparative research), as well as the use of documents, items of clothing samples of biological tissues, etc. in order to obtain evidence in a criminal case.

Such actions – subject to compliance with the procedure established by the Criminal Procedure Law and subsequent judicial review and evaluation of the evidence obtained - cannot be regarded as an unacceptable restriction guaranteed by Article 51 (Part 1) of the Constitution of the Russian Federation.

The exemption of a person from the obligation to give evidence that could worsen the situation of himself or his close relatives, i.e. granting this person witness immunity, means the inadmissibility of any form of coercion to testify against himself or his relatives. This right must be ensured at any stage of criminal proceedings and assumes that a person can refuse not only to testify, but also to provide other evidence confirming his guilt in committing a crime. The prohibition to oblige a person with witness immunity to testify about the circumstances of the case does not exclude, however, his right to provide relevant information if he agrees to it ^[9].

Granting a citizen the right to present evidence in his defense against suspicion or accusation of committing a crime does not mean that it can be implemented by illegal, including criminal, means. The accused has the right, for the purposes of his defense, either to remain silent, or to give evidence in such a way as not to obviously violate the rights of other persons, not to resort to methods of defense prohibited by law.

The constitutional provision of the Constitution of the Russian Federation, according to which no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law, must be explained not only to the defendant, but also to his spouse or close relative before questioning this person as a witness or victim; otherwise, the testimony of such persons must be recognized by the court obtained in violation of the law and cannot be evidence of the guilt of the accused (suspect).

The right (not to testify against oneself) is closely related to the concepts of fair judicial procedure, the presumption of innocence and the rules that follow from them on placing the burden of proof on the prosecutor and the absence of the obligation of the accused to prove his innocence in an offense.

This right presupposes the possibility of a person's refusal from the obligation to give evidence that may contribute to bringing him to criminal responsibility.

Despite the fact that in the civil aspect of the spouses in relation to each other, they are heirs of the first stage (Article 1142 of the Civil Code of the Russian Federation "Heirs of the first stage".), from the side of biological science, husband and wife are also not close relatives, otherwise their children could inherit genetically determined diseases. Therefore, marriage between close relatives is legally prohibited (Article 14 of the Family Code).

Another problem that requires, in our opinion, the most careful consideration is the relationship between the "spouses" living in a so-called civil marriage. Today, a significant part of the population prefers this form of living together. Thus, according to VTSIOM, every tenth Russian prefers to live in a civil marriage without official registration of the relationship. The most supporters of this form of family life turned out to be among young people and respondents under the age of 34 (16% each) ^[10]. Often such relationships are fully correlated with family ones: running a common household, having children together, mutual care, etc. At the same time, such a union of a man and a woman is not recognized and is not protected by the state due to the absence of a sign of its state registration. Consequently, a significant part of citizens are deprived of the right to witness immunity when involved in criminal proceedings.

The consolidation directly in the Code of Criminal Procedure of the Russian Federation of certain concepts arising from kinship, marital or proper relations would allow to unify the practice of applying such norms and avoid numerous mistakes. Therefore, we consider it appropriate to propose the following:

1. Amend the fourth paragraph of Article 5 of the Criminal Procedure Code of the Russian Federation by excluding the words "spouse" and "spouse" from it and state it in the following wording "4) close relatives - parents, children, adoptive parents, adopted children, siblings, grandfather, grandmother, grandchildren;".

2. Add Article 5 of the Criminal Procedure Code of the Russian Federation with the following norm: "53.1.1) spouses are a man and a woman who have accepted the marriage bond and registered their relationship with the civil registration authorities.

In the interests of achieving the goal of criminal proceedings, persons who are in a civil marriage also have witness immunity;".

3. The concept of close persons, enshrined in paragraph 3 of Article 5 of the Criminal Procedure Code of the Russian Federation, should be formulated as follows: "close persons are spouses and relatives, as well as other persons in whose welfare they are interested: the suspect, the accused, the witness, whose welfare is dear to the victim, the witness due to the established personal relationships."

We believe that the introduction of the above amendments and additions will bring the norms of the Criminal Procedure Code of the Russian Federation in line with the Constitution of the Russian Federation.