Маргарита Горовцова
AndreyPopov / Depositphotos.com
К такому выводу пришел1 КС РФ в решении, опубликованном сегодня (документ появится позже). В Суд обратился адвокат, который был не согласен с администрацией одного из СИЗО Республики Татарстан по вопросам личного досмотра.
При проходе КПП адвокат прошел через металлодетектор и сдал сотовый телефон (напомним, с 22 июня адвокатам запрещено проносить в исправительные учреждения телефоны, видеокамеры, диктофоны и некоторые другие устройства). Но потом, когда он уже находился на территории СИЗО, его остановил инспектор для повторного досмотра. В кармане брюк адвоката был виден предмет, который очертаниями напоминал второй телефон. Адвокат потребовал представить правовые и фактические основания досмотра и составить протокол – но ему в этом было отказано.
Как понять, что адвокат является профессионалом? Узнайте ответ из материала «Адвокаты по уголовным делам» в Домашней правовой энциклопедии системы ГАРАНТ. Получите полный доступ на 3 дня бесплатно!
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Впоследствии адвокат обратился в прокуратуру и в суд, посчитав действия сотрудников СИЗО унижающими честь и достоинство. Выяснилось, что личный досмотр все же не состоялся (карманы не ощупывали, их содержимое не изучали). Суды отметили также, что составление официального протокола не требуется, если запрещенные к переносу в режимную зону предметы не обнаружены, как в произошедшем случае.
Защитник обжаловал Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы (утв. приказом Минюста России от 14 октября 2005 г. № 189) в КС РФ.
Судьи напомнили, что, с одной стороны, адвокат может беспрепятственно встречаться со своим доверителем наедине, сколько угодно раз и без ограничений по времени встреч. С другой стороны, он должен при этом соблюдать режимные правила СИЗО. При этом если возникает подозрение, что адвокат пронес запрещенные предметы за пределы КПП, его могут досмотреть уже на территории СИЗО, и отказаться от этого нельзя.
Поэтому в целях защиты его прав администрация обязана письменно фиксировать основания, ход и результаты досмотра. Адвокат может потребовать копию протокола и обжаловать законность досмотра.
КС РФ не потребовал внесения изменений в законодательство – но действующие правила должны применяться с учетом его позиции. В пересмотре дела адвокату также было отказано, поскольку проведенный досмотр не повлек для него негативных правовых последствий.
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1 С информацией можно ознакомиться на официальном сайте КС РФ (http://www.ksrf.ru/ru/News/Pages/ViewItem.aspx?ParamId=3630).
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