Гражданский арест: права и ответственность частных лиц

Arrest made by a private citizen
A citizen's arrest is an arrest made by a private citizen – a person who is not acting as a sworn law enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers. Despite the practice's name, in most countries the arresting person is usually designated as a person with arrest powers, who need not be a citizen of the country in which they are acting. For example, in England and Wales, the power comes from Section 24A(2) of the Police and Criminal Evidence Act 1984, called "any person arrest". This legislation states "any person" has these powers, and does not state that they need to be a British citizen.

Anyone who makes a citizen's arrest can find themselves facing possible lawsuits or criminal charges (e. g. charges of false imprisonment, unlawful restraint, kidnapping, or wrongful arrest) if the wrong person is apprehended or a suspect's civil rights are violated. This is especially true when police forces are attempting to determine who an aggressor is. Private citizens do not enjoy the same immunity from civil liability when making arrests on other private citizens as police officers do. The level of responsibility that a person performing a citizen's arrest may bear depends on the jurisdiction. For instance, in France and Germany, a person stopping a criminal from committing a crime, including crimes against belongings, is not criminally responsible as long as the means employed are in proportion to the threat. In both countries, this results from a different legal norm, "aid to others in immediate danger", which is concerned with prevention, not prosecution, of crimes.

Section 271 of the Criminal Law Consolidation Act 1935 (SA) grants arrest powers to a person in South Australia. s271(3): A person is liable to arrest and detention under this section if the person is in the act of committing, or has just committed an indictable offence; or theft (whether the theft is a summary or indictable offence); or an offence against the person (whether the offence is summary or indictable); or an offence involving interference with, damage to or destruction of property (whether the offence is summary or indictable).

Under the Police Offences Act 1935 (Tas), section 55(3), any person may arrest any other person whom they find committing an offence, where they have reasonable grounds to believe that the conduct will create or may involve substantial injury to another person, serious danger of such injury, loss of property or serious injury to property. Section 55(5) states "For the purposes of this section, a person is said to be 'found offending' if he does any act, or makes any omission, or conducts or behaves himself, and thereby causes a person who finds him reasonable grounds for believing that he has, in respect of such act, omission, or conduct, committed an offence against this Act." There are further provisions in section 301 of the Criminal Code Act 1924 (Tas) that appear to allow a sliding scale of force in executing an arrest.

It was only in 2004 that the Western Australian parliament repealed the provisions of the former section 47 of the Police Act 1892 which allowed any person to arrest without a warrant "any reputed common prostitute, thief, loose, idle or disorderly person, who, within view of such person apprehending, shall offend against this Act, and shall forthwith deliver him to any constable or police officer of the place where he shall have been apprehended, to be taken and conveyed before a Justice, to be dealt with according to law " A private citizen would have found it rather difficult to interpret the terms "loose" or "idle" with any degree of legal certainty. Citizen's arrest powers are now in section 25 of the Criminal Investigation Act 2006 (WA).

In Austria, citizen's arrests (Anhalterecht Privater) can be made under § 80 Abs 2 StPO (code of penal procedures). The person making the arrest is allowed to hold the arrestee solely for the purpose of turning him over to a proper legal authority such as the police.

In Brazil, a Federal law allows any person to arrest a suspect criminal found in flagrante delicto or fleeing from the crime scene. The person has to, at his/her own judgment, have the physical power to keep the suspect detained, has to verbally explain what (s)he is doing to the arrestee and has to call the police. Both have to wait for the arrival of the police. The person who makes a citizen's arrest has to sign the police forms as a witness and explain the facts. Typically it will lead to a time burden of at least two hours. If the facts cannot be verified the person who realizes the citizen's arrest might be sued by the arrestee.

Canada's blanket arrest authorities for crimes or violations of federal statutes are found in the Criminal Code. In Canada, a criminal offence is any offence that is created by a federal statute—there are no "provincial crimes". Criminal offences are divided into three groups: indictable, dual procedure, and summary conviction. For the purposes of arrest, dual procedure offences are considered to be indictable. The Criminal Code provisions related to citizen arrests were changed in 2012, by the Citizen's Arrest and Self defence Act. As a consequence, it is now possible to make a citizen's arrest in Canada in circumstances where a "reasonable" amount of time has lapsed between the commission of a property related offence and the arrest.

In the Czech Republic, pursuant to § 76 (2) of the Code of Criminal Procedure ("Zákon č. 141/1961 Sb. o trestním řízení soudním (trestní řád)"), the personal liberty of a person caught in the act of committing a crime or immediately afterwards may be restricted by anyone if necessary to establish the person's identity, prevent their escape or secure evidence. The arrester shall, however, be obliged to hand that person over immediately to the police authority; The arrester may also hand over a member of the armed forces to the nearest armed forces unit or garrison administrator. If such a person cannot be handed over immediately, the restriction of that person's personal liberty shall be notified without delay to one of those authorities.

In Denmark, pursuant to § 755 (2) of the Administration of Justice Act, anyone may arrest a person caught in the act of committing a crime or in direct connection to a crime if the criminal act is subject to public prosecution. The arrestee must as soon as possible be turned over to the police with information about the time of and reasons for the arrest.

In Ethiopia, any private person may arrest without warrant a person who has committed a flagrant offence as defined in Art. 19 and 20 of the Criminal Procedure Code where the offence is punishable with simple imprisonment for not less than
three months. In addition where the police call for assistance in making an arrest with or without warrant there shall be a duty to assist where assistance can be given without risk. The Criminal Procedure Code also provides that where an arrest is made the person making the arrest shall without unnecessary delay hand over the person so arrested to the nearest police
station.

In Finland, Coercive Measures Act 22.7.2011/806 gives a right to apprehend someone in the act of committing a crime (in flagrante delicto) or fleeing from the crime scene, if punishment for the crime might be imprisonment or the crime is petty assault, petty theft, petty embezzlement, petty unauthorized use, petty stealing of a motor vehicle for temporary use, petty damage to property or petty fraud. A person wanted by the police (arrest warrant) can be apprehended by anyone. After the apprehension, the detainee must be handed over to the police as soon as possible. If the criminal is resisting or tries to escape, the law gives a citizen the right to use an amount of force considered necessary, when considering the nature of the crime, the behavior of the apprehended and the situation as a whole.

French law allows any civilian to arrest a person caught in flagrante delicto committing a felony or misdemeanor punishable by a jail sentence, with the obligation to immediately bring that person before the nearest officer of the police judiciaire. In modern practice, one would detain the perpetrator and immediately call the nearest police, then hand over the perpetrator and any evidence to the first police officers to arrive at the scene. Use of force is not authorised.

Citizen's arrests (in German: Jedermann Anhalte und Festnahmerecht) can be made under § 127 I 1 StPO (code of penal procedures) if the arrestee is caught in flagrante delicto and either the identity of the person cannot be otherwise established immediately or they are suspected to try to flee. The person making the arrest is allowed to hold the arrestee solely for the purpose of turning them over to a proper legal authority such as the police. German law does not establish that the crime has to be serious, nor that the person making the arrest has to actually be a citizen of Germany. The use of force is authorized, but the force must be proportional (verhältnismäßig) to the circumstances and the suspected crime.

Citizen's arrest is known as the "101 power". Under the Criminal Procedure Ordinance (cap. 221 of the Laws of Hong Kong), section 101(2) provides that "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence" using "force as is reasonable and proportionate in the circumstances". Once an arrest is made, the suspect must be delivered to a police office as soon as possible for court proceedings. "Arrestable offence" is defined as any crimes that can be sentenced for more than 12 months of jail time.

According to article 273 of Act XC. of 2017 concerning Penal Procedure, anyone may arrest a person caught committing a felony, but is obliged to hand the person over to the "investigative authorities" immediately; if this is not possible, the police must be informed.

The Code of Criminal Procedure allows private citizens to detain those suspected of crimes in order to prevent their escape, so long as the crime in question is on the list of crimes subjected to citizens' arrest, the crime is evident, and law enforcement is absent from the scene.

Any private citizen can, according to article 383 of the Italian Code of Criminal Procedure, arrest another person, provided they are caught "in flagranza di reato" (In flagrante delicto) and the felony they are caught committing includes mandatory arrest from the police and is "perseguibile d'ufficio", meaning that the judicial authority, once received the "notitia criminis" (a crime report), has the duty to commence prosecution, without a party necessarily filing a complaint. The person making the arrest is legally required to hand to police the arrested person and the corpus delicti to the judicial authority, failure to do so could result in the person making the arrest committing a crime.

In Japan, Section 213 of the Code of Criminal Procedure allows anyone from civilians to firefighters witnessing any crime in progress to make an arrest. This is called genkouhan (現行犯, meaning in flagrante delicto). Most criminals who attempt to flee, or refuse to identify themselves, can be held until police arrive. However, making a citizen's arrest to prevent petty crime (e. g. illegal assembly, accidental injury, accidental trespass, defamation of character, leaving a parking lot without paying) is false imprisonment per Section 220 of the Criminal Code.

Article 16 of the 1917 Constitution of Mexico allows any person to arrest a criminal found in flagrante delicto. A non police officer doing so must immediately bring them to the nearest civil authority. A person who fails to do so may be found guilty of illegal deprivation of liberty, a crime similar to kidnapping that can result in a prison sentence for the perpetrator. In 2006, the celebrity bounty hunter Duane 'Dog' Chapman was charged with unlawful deprivation of liberty for arresting an American fugitive in Mexico and attempting to take him across the border to California without consulting police.

The Administration of Criminal Justice Act (2015) allows private citizens to arrest a person who commits a criminal offense in their presence or a person who they reasonably suspect of having committed a crime for which a police officer would be legally entitled to arrest them without a warrant. Property owners are entitled to arrest those found damaging their private property and to authorize people working for them to arrest anyone damaging their property as well. Anyone damaging public property may be arrested by a private citizen. Private citizens who make arrests are legally obligated to immediately hand over the suspect to a police officer, or, in the absence of a police officer, to turn the suspect over to the nearest police station. After turning in the suspect, the private person who made the arrest must give a formal witness statement on the circumstances of the arrest.

In Norway, pursuant to § 176 of the Criminal Procedure Act any person may arrest a suspect caught at the scene or pursued from it. The arrestee must be handed over to the police immediately.

The Code of Criminal Procedure allows private citizens to arrest persons caught in flagrante delicto in the commission of a crime. Private citizens who make an arrest are obligated to immediately turn over the detainee to the police.

Although the Philippines does not have a national law covering citizen's arrest, the local government of Quezon City passed Ordinance 2307 or the "Citizen's Arrest Ordinance of Quezon City". Any citizens within the Quezon City area can arrest a person even without a warrant in the instances mentioned and provided by law.

In Poland anyone has the right to apprehend a person caught in the act of committing an offence, or seized in a pursuit undertaken directly following the commission of an offence, if it is feared that such person may go into hiding or if his identity cannot be established. The apprehended person should be surrendered to the police without delay.

In Portugal one is not civilly liable for restraining another person as long as one has used proportional force in order to defend themselves or someone else or anyone's property, under Articles 336, 337 and 339 of the Portuguese Civil Code (self defense, necessity and alike), and as long as there is an impossibility to resort to law enforcement. The main requirement of proportionality is that one does not give way to property rights over personal rights, the latter prevailing at all costs. There is also an exception to the proportionality principle which applies when, even though the defensive violence was excessive, it was triggered by a legitimate fear of the offended. With regards to the criminal aspects of the citizen's arrest, Article 255 of the Portuguese Code of Criminal Procedure gives any person the right to detain another in flagrante delicto if and only if the latter's conduct in question is punishable with imprisonment by law and the criminal procedure does not require private complaint, and no law enforcement authority is available in due time. The arrester must immediately bring the detainee into the custody of law enforcement.

In Russia, any person is allowed to arrest someone in the act of committing a crime pursuant to articles 37 and 38 of the Criminal Code of Russia and the Ruling of the Plenum of the Supreme Court of Russia of 27 September 2012 if the person performing the arrest is certain that the arrestee has committed a crime. The arrest must be carried out with applying as little force as required for the apprehension and the arrestee should be surrendered to the police without delay.

In Serbia anybody can arrest somebody in the act of committing a crime that the arrested would otherwise be pursued after in official capacity, provided that the police are notified.

In Spain, any person is allowed to arrest someone in the act of committing a crime or a fugitive as described in article 490 of the Criminal Code of Spain.

In Sweden, any person may arrest someone in the act of committing a crime, or fleeing from the crime scene, if the crime committed is punishable by imprisonment. A person wanted by the police, for whom there is an arrest warrant, can be arrested by anyone at any time. After the arrest, the police must be contacted as soon as possible. Security guards and others working with preventing crime but are not police officers, have this law as justification to arrest thieves and other they encounter.

A citizen's arrest is a form of lawful custody and anyone attempting to flee may be guilty of attempting to escape from lawful custody. Furthermore, the offence of 'assault with intent to resist arrest or lawful apprehension or detainer of himself' may apply if the arrestee assaulted the arrestor under Section 38 of the Offences Against the Person Act 1861. Both assault with intent to resist arrest/lawful apprehension and escaping from lawful custody are indictable, the former being so by the mode of trial of the offence, the latter is a common law offence and therefore indictable only. Therefore, these offences—whether fully carried out or merely attempted—are citizen's arrestable in themselves. A citizen's arrest may also be made technically for a warrant for an arrest if the offence listed is indictable as there is no law prohibiting a re citizen's arrest or the number of times they may be arrested for it nor is there a time limit. The warrant would satisfy the requirement for the arrester to have reasonable grounds to suspect the guilt of the arrestee. For example, if an offender failed to attend Crown Court this would satisfy two conditions for a lawful citizen's arrest at a later date – that the offence had taken place and that it was obviously indictable by way of being tried in Crown Court. Although not technically citizen's arrest powers, any person also has the power to arrest for a common law breach of the peace which also provides any person with a power of entry. Section 3 Criminal Justice Act 1967 also provides any person the power to apprehend a person unlawfully at large e. g. an offender on a recall to prison or in the circumstances where someone has managed to escape from lawful custody. Until 2006, there was an "any person" power of arrest under part of the Theft Act 1968 in England and Wales that related to poaching, which was used by private water bailiffs (as opposed to Environment Agency bailiffs). This ceased to have effect as a result of a general repeal of such arrest powers by the Serious Organised Crime and Police Act 2005. An officer or agent of certain companies may seize and detain any person who has committed an offence against the provisions of the Companies Clauses Consolidation Act 1845 whose name and residence shall be but unknown to such officer or agent, and take them before a justice of the peace, who "shall proceed with all convenient dispatch to the hearing and determining of the complaint against such offender". Under the Standing Orders of the House of Commons of the United Kingdom, the Serjeant at Arms has the power to take into custody any member of the public who is in a Members only area of the House, or who misconducts themselves, or who fails to leave when the House sits in private. Court security officers in England and Wales have the additional power to restrain and remove persons from court buildings under s53 Courts Act 2003 as well as powers of search and seizure of certain articles.

Similar provisions apply to Northern Ireland as to England and Wales, implemented through the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) as amended by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order (SI 2007/288).

While no statutory provision for citizen's arrest exists in Scots law, there is a common law position that anyone committing an offence can be arrested using minimum force if necessary with consideration to what is reasonable in the relevant circumstances. The offence must be a serious one and not merely for a breach of the peace. The person exercising the power must have witnessed the offence occurring therefore they cannot act upon information from another person.

In the United States, a private person may arrest another without a warrant for a crime occurring in their presence. However, the crimes for which this is permitted vary by state. This procedure was criticized in the state of Georgia for the potential of abuse and racial bias after the murder of Ahmaud Arbery. As a result, Georgia repealed its citizen's arrest law.

Most states have codified the common law rule that a warrantless arrest may be made by a private person for a felony, misdemeanor, or "breach of peace". "Breach of peace" covers a multitude of violations in which the Supreme Court has even included a misdemeanor seatbelt violation punishable only by a
fine. The term historically included theft, "nightwalking", prostitution, and playing card and dice games. Texas courts have defined and interpreted the term "breach of the peace" to mean an act that disturbs or threatens to disturb the tranquility enjoyed by the citizens.

In general, a private person is considered to be justified in using non deadly force upon another if they reasonably believe that: (1) such other person is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent further commission of the offense and to apprehend the offender. The force must be reasonable under the circumstances to restrain the individual arrested. This includes the nature of the offense and the amount of force required to overcome resistance. In Texas, a civilian may use reasonable force, including deadly force if reasonable, to prevent an escape from a lawful citizen's arrest.

In some states of the United States, the courts recognize a common law shopkeeper's privilege under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. The purpose of this detention is to recover the property and make an arrest if the merchant desires.

Private persons are occasionally granted immunity from civil or criminal liability, like the police are, when arresting others. While the powers to arrest are similar, police are entitled to mistake of fact in most cases, while civilians can be held to a stricter liability depending on the individual state. Police can also detain anyone upon reasonable suspicion. However, ordinary citizens cannot claim "qualified immunity" to attempt to defend against a civil complaint for false arrest.