During the production of preliminary investigation in a criminal case, all the same general terms and Conditionsthat apply to the production of inquiry. But in the production of preliminary investigation, there are also its own characteristic rules that operate throughout the preliminary investigation in the criminal case, they concern: the term of the preliminary investigation (Article 162 of the Code of Criminal Procedure), the production of the preliminary investigation by the investigative group (Article 163 of the Code of Code), as well as attracting as an accused (ch. 23 CPC).
Under the rules of the preliminary investigation, general procedural norms and features that are characteristic of this form are provided for by criminal procedure legislation that are characteristic of this form. preliminary investigation and operate throughout the preliminary investigation.
The term of preliminary investigation
The term of the preliminary investigation is a period of time during which the investigator (the head of the investigative body) produces certain procedural (investigative) actions on a specific criminal case for establishing circumstances perfect crime, detecting and fixing the traces of a crime, disclosure and initiating the guilty and bringing them as accused with strict observance of rights, freedoms and legitimate interests citizens and organizations.
The total period of preliminary investigation in a criminal case should not exceed two months from the date of the initiation of the criminal case, regardless of any circumstances arising from its production. IN this time The time period does not turn on when the criminal proceedings were suspended in the manner prescribed by Art. 208 CPC. In addition, the preliminary investigation period can be extended to three months by the head of the relevant investigative body or his deputy. In the case when the criminal case is of particular complexity, the term of preliminary investigation can be extended by the head of the investigative body on the subject of the Russian Federation and other equivalent to it by the head of the investigative body, as well as their deputies under 12 months. Further extension of the preliminary investigation is made only in exceptional cases by the Chair Investigative Committee RF, head of the investigative body of the relevant federal authority executive power And their deputies.
As noted, the beginning of the prior investigation period is considered a day of initiating a criminal case, i.e. The day of the decision on the initiation of a criminal case, regardless of when a criminal case was made to the production of the investigator, and whether it was carried out on it before the criminal proceedings were made to the production of the investigator. The end of the preliminary investigation is the day:
- - preparation of the indictment and direction to him together with the criminal case of the prosecutor. In this case, the period of review of the accused and his defender with the materials of the criminal case is included in the period of preliminary investigation;
- - making decisions on the transfer of criminal case to court to consider the issue of applying forced medical measures and the direction of its prosecutor;
- - Decisions on the cessation of criminal proceedings or criminal prosecution.
In all cases, the date that is in the listed procedural documents is simultaneously the date of the end of the prior investigation in the criminal case.
If the criminal case was observed by the prosecutor of the investigator in order of paragraph 2 of Part 1 of Art. 221 Code of Criminal Procedure to fulfill its instructions or appealing its decision, the term of preliminary investigation in this case is established by the head of the investigative body, but it cannot exceed one month from the date of receipt of this criminal case to the investigator. The term calculus begins from the moment of making a case to the production of the investigator. If it is not possible to finish the preliminary investigation in the allotted time, then the preliminary investigation period can be extended to general grounds and taking into account the specified month term (part 6. Art. 162 of the Code of Criminal Procedure). The provisions of this provision in connection with the introduction of appropriate changes to the current legislation acquired legal definity In cases where the criminal case returns for production additional investigation".
Basically, this legal uncertainty was associated with the definition of the head of the investigative body, from those listed in Art. 39 Code of Code, which has the right to extend the preliminary investigation for a period of one month after the criminal proceedings from the prosecutor, as well as the right to extend the term repeatedly. In addition, uncertainty also exists in cases where there are various grounds for resuming the production of preliminary investigation, etc. The discrepancy in this issue established and Constitutional Court RF, which is in its definition of July 11, 2006 No. 352-0 "on request of industrial district Court Cities of Orenburg on the verification of the constitutionality of part of the sixth article 162 of the Criminal Procedure Code Russian Federation"Formulated a position, in accordance with which the prosecutor (currently the head of the investigative body) cannot repeatedly be renewed to the same basis to extend the term of preliminary investigation for more than one month higher than the deadline for the establishment of which in accordance with Part 4, 5 of Art. 162 CPC refers to the competence of this prosecutor (head of the investigative body).
Of course, in case of the return of the criminal case from the prosecutor, the extension of the preliminary investigation period for one month for the production of additional investigation (and in cases of repeated extension of the preliminary investigation), even if the term of the preliminary investigation exceeds the total period of preliminary investigation established to extend the relevant head of the investigative authority, must To be extended only by the direct supervisor of the investigative body, in the production of which this criminal case is located, i.e. Head of the Investigative Body, which has the right to directly implement procedural control in a criminal case. This position is associated with the concept reasonable period The criminal proceedings currently became the principle of the criminal procedure (Article 6.1 of the Code of Criminal Procedure), as well as the efficiency of this procedural action. In addition, literal interpretation procedural normprovided for in Part 7 of Art. 162 Code of Code, which characterizes the procedure for extending the period of investigation, also focuses that the investigation can be extended by the direct supervisor of the investigative body, in the production of which this criminal case is located.
According to the current criminal procedure law, in the event of a criminal prosecutor return to the investigator in accordance with Part 1.1 of Art. 211, part 1 Art. 214 and paragraph 2 of Part 1 of Art. 221 OPC The term for the performance of the instructions of the prosecutor is established by the head of the investigative body, in the production of which is a criminal case, and cannot exceed one month from the date of receipt of this criminal case to the investigator. With the resumption of a suspended or terminated criminal case, or the return of the criminal case for the production of additional investigation, the period of additional investigation is established by the head of the investigative body, the production of which is a criminal case, and cannot exceed one month from the date of the criminal proceeds to the investigator. Further extension of the preliminary investigation is made on the general basis in the manner prescribed by Part 4, 5 and 7 of Art. 162 CPC.
If it is necessary to extend the term of investigators, the investigator initiates the head of the investigating authority by making an appropriate resolution. This resolution is submitted to the head of the investigative body no later than five days before the expiration of the preliminary investigation. In all cases, the investigator informs the accused and his defender in writing to the extension of the preliminary investigation. The extension of the investigation can be appealed to interested persons in court.
Production of preliminary investigation by the investigative group
In the presence of material (actual) and procedural grounds The preliminary investigation can be carried out by the investigator not alone, but by several investigators, i.e. by the investigative group.
Material (actual) grounds the production of the preliminary investigation of the investigative group is due to the need for an effective investigation into criminal cases representing a particular complexity, or the presence of a large amount of investigative work to be fulfilled. Categories such cases are determined by the presence of evaluation criteria, such as: criminal cases, having increased public interest, multi-episodescence, cases with a large number of accused or victims, cases of crimes committed on a significant territory, etc.
Procedural base the production of the preliminary investigation by the investigative group is to make a separate decree on the production of preliminary investigation by the investigative group or an indication of this in the decision on the initiation of a criminal case. All members of the investigative group are listed in the decision (it may also include an employee who performs in the ORM case) and its leader indicates.
The decision to produce the preliminary investigation by the investigative group, as well as the change of its composition takes the head of the investigative body.
A suspect, the accused is declared the composition of the group and explains the right of removal. They have the right to declare a discharge of both the composition of the investigative group and its individual members.
The head of the investigative group itself becomes such from the moment he issued a decision on the adoption of a criminal case to its production. The head of the investigative group independently has the right to implement the following procedural (investigative) actions:
- o organize the work of the investigative group;
- o lead the actions of other investigators;
- o to make an indictment or to endure a decision on the direction of a criminal case to court to consider the application of compulsory medical measures to the person who committed a crime and direct this ruling together with the criminal prosecutor;
- o Participate in investigative actions produced by other investigators;
- o personally produce investigative actions;
- o make decisions in a criminal case in the manner prescribed by the Code of Criminal Procedure.
In addition, he in accordance with Part 4 of Art. 163 CPC makes decisions:
- o about the allocation of a criminal case in separate production in the manner prescribed by Art. 153-155 CPC;
- o termination of the criminal case is completely or partially;
- o suspension or resumption of criminal proceedings;
- o attracting a person as an accused and the amount of accusations that prevent him;
- o The direction of the accused to a medical or psychiatric hospital for the production of a judicial-medical or forensic psychiatric examination, with the exception of cases provided for by paragraph 3 of Part 2 of Art. 29 CPC;
- o excitement to the head of the investigative application for the extension of the preliminary investigation;
- o excitement before the application of the petition for the election of the preventive measure, as well as the production of investigative and other procedural actions provided for by Part 2 of Art. 29 CPC.
The preliminary investigation in the criminal proceedings of the Russian Federation is one of the forms of preliminary investigation of crimes carried out by the preliminary investigators special for this - investigators of the prosecutor's office, investigators of the internal affairs bodies, investigators of the authorities federal Service security, investigators of federal tax police (Article 125 of the Code of Criminal Procedure).
The preliminary investigation is procedural, i.e. The activities of the investigator, which started by the criminal procedural law, which starts from the moment of criminal case and the adoption of its investigator to its production, ending with the preparation of the indictment or decree on the direction of the case to the court for consideration of the application of compulsory medical measures. Or decisions on the termination of a criminal case.
Prerequisite, activity, the content of which covers, from beginning to end, the stage of preliminary investigation. It is aimed at pre-trial establishment of all circumstances to be proof. It was the preliminary investigation that absorbed the maximum provided by the law guarantees, respect for the rights and legitimate interests of the person at the pre-trial stages of the criminal process.
The preliminary investigation in a criminal case is made by investigators who have procedural independence.
The investigation into crimes for the preliminary investigation authorities is the main function, the content of which is the rapid and complete disclosure of crimes, timely attracting persons guilty of their commitment, identifying the causes and conditions that contribute to crimes, and take measures to eliminate them.
The preliminary investigation is the main form of investigation of crimes, which provides for the most complete guarantees of the rights and legitimate interests of the individual at the pre-trial stages of the criminal process. The cases for which the preliminary investigation is produced is the most difficult affairs and all cases of crimes committed by minors, persons who, by virtue of their physical or mental deficiencies, cannot fulfill their right to defense, as well as about socially dangerous Acts Inchangeable.
The preliminary investigation takes place and for crimes, according to which, according to the law, production is not necessarily. The investigator in this situation has the right to abandon the criminal process, only if this recognizes the court or the prosecutor.
The preliminary investigation is the highest and most difficult form of the investigation applied to cases of more serious crimes.
The preliminary investigation consists of procedural actions and procedural decisions.
It includes the production of investigative actions, the use of coercive measures, attracting a person as an accused, admission to the participation in the criminal proceedings of the defender, legal representatives, civil plaintiffs and other subjects of the criminal procedure, familiarization of participants with materials and much more.
The initial term of preliminary investigation is set in the amount of two months. However, he can be extended by the head of the investigative body in accordance with the procedure established by law.
The essence of criminal law relations is that the state is in the right and is obliged to determine the foundations and limits of the liability of the person for the deed. Put the question of applied to the guilty measures of social impact or the foundation of the liberation of a person from responsibility. The man who committed a crime is entitled legal means Property from unreasonable accusation, illegal conviction and unfair punishment, and is also obliged to submit to measures of impact on the part of the authorities.
However, until the investigator, the prosecutor does not initiate a criminal case and will not begin the production of preliminary investigation, the criminal law relations are potentially hidden. Criminal relations are always preceded by criminal procedural, they are the basis, they are implemented.
In other words, the criminal procedural relationship is a way practical application criminal law relations, since the process is only a form of life of the law, therefore, the manifestation of his inner life.
Criminal relations without criminal procedural relations can be implemented precisely as legal, i.e. Based on the right relationship. Application criminal law Without compliance with criminal procedural forms, it will mean either self-person (non-state coercion) or state, but not legal coercion.
Investigation of crimes, in its content, fully corresponds to the concept of the stage of the process, which is not challenged with almost anyone to the present
Today it lies in the activities of the bodies of the inquiry and the preliminary investigation under the supervision of the prosecutor and the limited control of the court, to collect, verify and evaluate the evidence in order to establish the presence or absence of an event of a crime, persons who have committed it, the nature and size of the damage caused by the crime, identifying and eliminating circumstances that contributed to committing a crime.
Decree on production investigative action consists of introductory, descriptive and operative parts. In the aqueous part, the name of the investigative action is indicated, by whom and when the ruling was issued. The descriptive part contains a substantiation of the decision on the production of investigative action, i.e. It sets out the circumstances of the criminal case. The resolution part is a decision on the production of investigative action.
A number of investigative actions are allowed to produce only on the basis of judicial decisionsince they limit constitutional rights Citizens (search, imposition of arrest for correspondence, control and recording of telephone conversations).
The law does not allow investigative actions at night, except for cases that do not endure deposits (inspection of the location of the corpse, traffic accident, search if there is reason to believe that the person can destroy the traces of the crime, etc.).
In the production of investigative actions is prohibited to apply violence, threat to their participants, to create a danger to their lives and health.
The Criminal Code provides for criminal liability For coercion of a face to the country of testimony or an expert to the giving of the conclusion, connected to the use of violence, bullying or torture.
It is necessary to follow the rights of participants of the investigative actions. In the production of investigative actions to their participants, in particular, their rights must be explained, duties. This is certified by signatures of these persons in the protocol. It is unacceptable to involve persons in investigative actions, if there are grounds for their allure.
The investigator is entitled to involve specialists and employees of the inquiry authority in the investigative action.
According to the results of the investigative action during it, or immediately after it includes a protocol of investigative action, which serves as the main means of fixing the results of investigative action. It can be written in hand or with technical means. Requirements that are presented to the protocol are formulated in Art. 166 Code of Criminal Procedure.
The procedure and rules of the investigation of the head business. PRELIMINARY INVESTIGATION.
Pre-investigation term:
The preliminary investigation in a criminal case should be completed on time not exceeding 2 months from the date of initiation of a criminal case.
During the preliminary investigation, the time has been included since the initiation of the criminal case and until the day of its direction to the prosecutor with the indictment or decree on the transfer of criminal case to court to consider the application of compulsory medical measures either before the day of the decision to terminate the criminal proceedings.
During the preliminary investigation, the time is not included for appealing by the investigator of the decision of the prosecutor in the case provided for by clause 2 of the first part of Article 221 of the Code of Criminal Procedure, as well as the time during which the preliminary investigation was suspended on the grounds provided for by the Code of Criminal Code of the Russian Federation.
Preliminary investigation mounted partmay be extended to 3 months by the head of the relevant investigative body.
In a criminal case, the investigation of which is of particular complexity, the term of preliminary investigation can be extended by the head of the investigative body under the subject of the Russian Federation and otherwise equivalent to it by the head of the investigative body, as well as their deputies to 12 months. Further extension of the term of preliminary investigation can be made only in exceptional cases by the Chairman of the Investigative Committee of the Russian Federation, the head of the investigative body of the relevant federal executive authority ( federal Body Executive) and their deputies.
With the resumption of production according to a suspended or terminated criminal case, as well as the return of the criminal case for the production of additional investigators, the head of the investigative body, in the production of which is a criminal case, has the right to establish a period of preliminary investigation within one month from the date of the criminal procedure to the investigator, regardless of how many times it renewed before it was stopped either returned to produce additional investigations, and regardless of the total duration of the preliminary investigation period. Further extension of the preliminary investigation is made on the general basis in the manner prescribed by the fourth, fifth and seventh parts.
In the event of a prosecutor's prosecutor return to the investigator in connection with the identification of the circumstances referred to in parts of the first and first 2 Article 237 of the Code of Criminal Procedure, the production period of investigative and other procedural actions cannot exceed one month from the date of the criminal investigator's arrival. Further extension of the preliminary investigation is made on the general basis in the manner prescribed by the fourth, fifth and seventh parts.
If it is necessary to extend the term of the preliminary investigation, the investigator makes an appropriate resolution and presents it to the head of the investigative body no later than 5 days before the expiration date of the preliminary investigation.
Investigator B. writing Notifies the accused and his defender, as well as the victim and his representative about the extension of the preliminary investigation.
Production of preliminary investigation by the investigative group.
The production of preliminary investigation in a criminal case in the case of its complexity or large volume can be entrusted with the investigative group, which is made a separate decree or is indicated in the decision on the initiation of a criminal case.
The decision to produce the preliminary investigation by the investigative group, the head of the investigative body takes the change in its composition. The resolution should be listed all the investigators who are entrusted with the production of preliminary investigation, including it is indicated, which investigator is appointed by the head of the investigative group. The work of the investigative group may be attracted by officials of bodies engaged in operational investigative activities. The composition of the investigative group is declared a suspect, accused, victim.
The head of the investigation team adopts a criminal case for its production, organizes the work of the investigative group, leads the actions of other investigators, constitutes an indictment or makes a decision on the direction of a criminal case to court to consider the application of compulsory medical measures to the person who committed a crime and sends this RESOLUTION Together with the criminal prosecutor.
The head of the Investigative Group makes decisions about:
Allocating criminal cases in separate production in the manner prescribed by Articles 153 - 155 of the Code of Criminal Procedure;
Termination of the criminal case in whole or in part;
Suspension or resumption of criminal proceedings;
Attracting a person as an accused and the amount of charges that prevent him;
The direction of the accused B. medical organizationproviding medical care in stationary conditions, or in a medical organization providing psychiatric assistance in stationary conditions, for the production of a judicial-medical or forensic psychiatric examination, with the exception of cases provided for in paragraph 3 of part 2 of the Second Article 29 of the Code of Criminal Procedure of the Russian Federation;
Excitement to the head of the investigative application for the extension of the preliminary investigation;
Archings before the application of the application for the election of the preventive measure, as well as on the production of investigative and other procedural actions provided for by part of the second Article 29 of the Code of Criminal Procedure of the Russian Federation.
The head and members of the investigative group have the right to participate in investigative actions produced by other investigators, personally produce investigative actions and make decisions in a criminal case in the manner prescribed by the Code of Criminal Procedure.
General rules Production of investigative actions.
The investigative actions provided for in Articles 178 of the Third, 179, 182 and 183 of the Code of Criminal Procedure of the Russian Federation are carried out on the basis of the investigator's decision.
In cases stipulated by paragraphs 4 - 9, 11 and 12 of the second part of Article 29 of the Code of Criminal Procedure, investigative actions are made on the basis of a court decision.
The production of investigative action at night is not allowed, with the exception of cases that do not tolerate deposits.
In the production of investigative actions, the use of violence, threats and other illegal measures is unacceptable, as well as the creation of hazards for the life and health of those involved in them.
The investigator, attracting participants in the criminal proceedings, indicated in chapters 6 - 8 of the Code of Criminal Procedure, certified in their personality, clarifies them rights, responsibility, as well as the procedure for the production of relevant investigative action. If the victim, the witness, specialist, an expert or translator participates in the proceedings of investigative action, then it is also warned of responsibility provided for in Articles 307 and 308 of the Criminal Code of the Russian Federation.
In the production of investigative actions, technical means and methods for detecting, fixing and removing traces of crime and physical evidence can be applied. Before the beginning of the investigative action, the investigator warns people involved in the investigative action on the use of technical means.
The investigator has the right to attract the official person who performs operational investigative activities in the investigative action, as the corresponding mark is made in the protocol.
During the production of investigative action, a protocol is conducted in accordance with Article 166 of the Code of Criminal Procedure of the Russian Federation.
Judicial order obtaining permission to manufacture investigative action.
In cases provided for in paragraphs 4 - 9, 10.1, 11 and 12 of the second part of Article 29 of the Code of Criminal Procedure, the investigator with the consent of the head of the investigative body, and the investigator with the consent of the prosecutor initiates a petition for the production of investigative action, which is made by the decision.
The application for the production of investigative action is to be considered solely the judge of the district court or the military court of the relevant level at the place of production of the preliminary investigation or the production of investigative action no later than 24 hours from the receipt of the specified petition, with the exception of cases provided for by part in the third.
IN court session The prosecutor, investigator and the investigator are entitled to participate.
The petition for the production of investigative action concerning the implementation, disposal or destruction of the material evidence specified in paragraphs 1, 2 (with the exception of perishable goods and products), 3 (with the exception of objects, the long-term storage of which is dangerous to the life and health of people or for ambient), 6 and 7 parts of the second article 82 of the Code of Criminal Procedure of the Russian Federation, is considered by the judge no later than 5 days from the date of his arrival in court. The petition for the production of investigative action concerning the implementation, disposal or destruction of material evidence in the form of perishable goods and products, as well as items, the long-term storage of which is dangerous to the life and health of people or for the environment, is considered a judge with regard to their features, but no later than 24 hours from the date of receipt of the petition to the court. When considering these petitions at the court hearing, a suspect, accused, their defenders and (or) legal representatives, the owner or other legal owner recognized by real proof of the criminal case are entitled to participate. Non-appearing of persons in a timely notified of the time consideration of these applications, or the unidentification of the owner or other legal owner The subject recognized by material evidence in a criminal case is not an obstacle to the court targets.
Having considered the specified petition, the judge makes a decision to resolve the production of investigative action or a refusal to produce it, indicating the motives of failure.
In exceptional cases, when the production of housing, search and seizures in the home, personal search, as well as the removal of the things laid or deposited into the pawnshop, the imposition of an arrest on the property specified in the part of the first article 104.1 of the Criminal Code of the Russian Federation, does not tolerate deposit, These investigative actions can be made on the basis of the Resolution of the investigator or the investigator without obtaining a court decision. In this case, the investigator or the investigator within 24 hours from the beginning of the production of investigative action notifies the judge and the prosecutor to the production of investigative action. Copies of the decision on the production of investigative action and the investigative protocol for verifying the legality of the decision on its production are attached to the notification. Having received the specified notice, the judge in time provided by part of the second this article, checks the legality of the resulting investigative action and makes a decree on its legality or illegality. If the judge recognizes the resulting investigative effect, all evidence obtained during such an investigative action is invalid in accordance with Article 75 of the Code of Criminal Procedure of the Russian Federation.
Protocol of investigative action.
The protocol of the investigative action is drawn up during the investigative action or immediately after its end.
The protocol can be written from hand or manufactured using technical means. During the production of investigative action, stenographing, photographing, filming, audio and video recording can also be used. Transcript and stenographic recording, photographic negatives and pictures, materials of audio and video are stored in a criminal case.
The protocol shall indicate:
Place and date of production of investigative action, time of its beginning and end up to minute;
Position, surname and initials of the person who has amounted to the protocol;
Surname, first name and patronymic of every person who participated in the investigative action, and in the necessary cases its address and other data on his personality.
The protocol describes the procedural action in the order in which they were produced, the circumstances substantially identified during their production, as well as the statements of persons participating in the investigative action.
The protocol also specifies the technical means used in the production of investigative action, the conditions and procedure for their use, objects to which these funds were applied and the results obtained. The protocol should not be noted that persons involved in the investigative action were pre-warned about the use of the investigative effects of technical means.
The protocol is presented to familiarize themselves to all persons participating in the investigative action. Wherein specified persons It is explained by their right to make the comment on its addition and clarification to the Protocol. All comments made on the addition and clarification of the protocol must be stipulated and certified by the signatures of these individuals.
The protocol is signed by the investigator and persons participating in the investigative action.
Photographic negatives and snapshots, films, diapositives, interrogation phonograms, video tapes, drawings, plans, schemes, casting and traces, drawings, plans, schemes, locks, and prints, made in the production of investigative action, as well as electronic media received or copied from other electronic information carriers in During the production of investigative action.
If necessary, ensure the safety of the victim, his representative, a witness, their close relatives, relatives and loved ones, the investigator, the investigator is entitled to the protocol of the investigative action, in which the victim, his representative or a witness participates, does not lead data on their identity. In this case, the investigator with the consent of the head of the investigative body or the investigator with the consent of the authority of the Inquiry authority makes a decree, which presents the reasons for the decision to save in the secret of these data, indicates the alias of the participant in the investigative action and is a sample of its signature that it will use in the protocols of investigative Actions produced with his participation. The decision is placed in the envelope, which after that is sealing, is attached to a criminal case and is stored under it in conditions that exclude the possibility of familiarizing other participants in criminal proceedings. In cases not tolerant, the specified investigative effect can be made on the basis of the decision of the investigator or the investigator on the preservation of the data on the personality of the investigative action without obtaining the consent of the head of the investigative body, the head of the inquiry authority. In this case, the Resolution of the investigator is transferred to the head of the investigative body, and the decision of the investigator is the head of the inquiry authority to verify its legality and reasonableness immediately when the real opportunity appears.
The protocol must also contain a record of clarification by participants in investigative actions in accordance with the Code of Criminal Procedure of their rights, duties, responsibility and procedures for the production of investigative action, which is certified by the signatures of participants in investigative actions.
A certificate of refusal to sign or the impossibility of signing the investigative protocol.
In case of refusal of a suspect, accused, victim or other person who participates in the investigative action, to sign the investigator's investigator entering it the relevant entry, which is certified by the signature of the investigator, as well as the adfertress signatures, legal Representative, Representative or understood if they are involved in the investigative action.
The face refused to sign the protocol must be given the opportunity to explain the reasons for the refusal that is entered into this protocol.
If the suspect, the accused, victim or a witness due to physical disadvantages or health states cannot sign the protocol, then the introduction of this person with the text of the protocol is made in the presence of a defender, legal representative, representative or understood, which confirm its patties of the protocol and the fact of the impossibility of signing it .
Participation of a specialist.
The investigator has the right to involve a specialist to participate in the investigative action in accordance with the requirements of part of the fifth of Article 164 of the Code of Criminal Procedure.
Before the start of the investigative action, which involves a specialist, the investigator makes it certifying his competence, finds out his attitude towards a suspect, accused and victim, explains to a specialist of his rights and responsibility provided for in Article 58 of the Code of Criminal Procedure of the Russian Federation.
Participation of the translator.
In cases stipulated by part of the second article 18 of the Code of Criminal Procedure, the investigator attracts to participate in the investigative action of the translator in accordance with the requirements of part of the fifth of Article 164 of the Code of Criminal Procedure of the Russian Federation.
Before the start of the investigative action, in which the translator participates, the investigator is certified in its competence and explains the translator of his rights and the responsibility provided for in Article 59 of the Code of Criminal Procedure of the Russian Federation.
The participation of witnesses.
In the cases provided for in Article 182, part of the third.1 of Article 183, Articles 184 and 193 of the Code of Criminal Procedure of the Russian Federation, investigative actions are made with the participation of at least two understandable, which are caused to certify the fact of the production of investigative action, its strokes and results, with the exception of cases provided for Part of the third of this article.
In cases stipulated by articles 115, 177, 178, 181, Article 183 (with the exception of cases provided for by part 1), part of the fifth of Article 185, part of the seventh article 186 and Article 194 of the Code of Criminal Procedure of the Russian Federation, understood by investigator at the discretion of the investigator. If in these cases by decision of the investigator, the investigative actions are not involved in investigative actions, the use of technical means of fixing the stroke and the results of the investigative action is mandatory. If, during the investigative action, the use of technical means is impossible, the investigator does the corresponding entry in the protocol.
In other cases, investigative actions are made without the participation of those who are understood if the investigator at the request of participants in criminal proceedings or on its own initiative will not have a different solution.
In a hard-to-reach area, in the absence of appropriate means of communication, as well as in cases where the production of investigative action is associated with the danger to the life and health of people, the investigative actions provided for by part of the first article can be carried out without the participation of those who are understood as in the investigative protocol. Relevant entry. In the case of investigative action without the participation of the understood, technical means of fixing its strokes and results are applied. If, during the investigative action, the use of technical means is impossible, the investigator does the corresponding entry in the protocol.
In the case of the participation of the considered investigator before the beginning of the investigative action, in accordance with part of the fifth of Article 164 of the Code of Criminal Procedure, it clarifies the purpose of the investigative action, their rights and responsibility, Article 60 of the Code of Criminal Procedure.
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Enchanted that integral elements of the preliminary investigation are a consequence and inquiry. The choice of one of them within the framework of open criminal proceedings has a significant impact on the legality of subsequent procedural events. Consider further detailed forms of preliminary investigation, the ratio of investigation and inquiry, as well as brief description judicial consequences.
Preliminary investigation
The rules governing its conduct are fixed in the 22nd head of the Code of Criminal Procedure.
Preliminary consequence is a mandatory form of a preliminary investigation into cases of all crimes, except for those that are indicated in 3 parts 150 of the Code of Criminal Procedure. In the framework of these industries, an inquiry is performed.
As the main form of preliminary investigation, the preliminary investigation is considered as a system of procedural events and decisions of the investigator. Their essence comes down to the adoption of materials of the case into the production, the implementation of procedural actions, charges, the application of coercive measures, enshrined in the law, suspension, the end of the investigation, execution of decisions in the case.
Commissioners
Preliminary consequence as a form of pre-investigation has a number of specific features. Features primarily manifest themselves in the subject line of persons authorized it.
The legislation indicates specific bodies that conclude. In order to investigate cases about the acts listed in:
- Paragraph 1 part 2 151 Articles of Criminal Procedure - investigators of the RF IC.
- P. 2 2 parts of Art. 151 - investigators of the FSB bodies. These same persons are authorized to conduct a preliminary investigation in cases enshrined in part 4 of Art. 151.
- Paragraph 3 of Part 2 151 of Articles - Investigative ATS.
- P. 5 2 parts of Art. 151 - Employees of organs implementing the functions of control over the turnover of psychotropic and narcotic substances.
Legislation allows for preliminary investigations or investigations into bodies that reveal the acts provided for in Part 5 of Art. 151 CPC. In cases determined by part 6 of the same norm, procedural activities are carried out by employees of the state structure, whose integrity includes acts on which openly criminal production.
General rules
The procedure for performing the preliminary investigation as a form of a preliminary investigation is governed by a complex of norms enshrined with Articles 162-170 of the Code of Criminal Procedure.
The basis for the start of procedural activity is the decision to initiate a case or on the adoption of materials to production. The latter takes place in the case when the case is initiated by an inquiry authority.
The investigation in the preliminary investigation ends with the termination of the case (a special decree is made about this), the design of the indictment or the direction of production materials to the court for making a decision on the use of forced medical measures.
Time spending
For a preliminary investigation as a form of preliminary investigation, a period of time is provided. In accordance with the provisions of 162 of the Code of Criminal Procedure, the procedural activities authorized employees are obliged to complete within 2 months from the date of initiation of the case. During this period, the time from the date of the opening of production before the transfer of materials to the prosecutor's office with the indictment / decree on the transfer of materials to the court for the application of medical measures or until the day of the decision to terminate production is made.
During the period of the investigation, the time was not included in the challenge by the investigator of the ruling of the prosecutor about the return of the case to fulfill additional investigations, adjustment of the amount of the charge (qualifications of act) or the reasons for the conclusion and elimination of the detected deficiencies. Not taken into account and time during which production was suspended on the grounds,
Extend period
The term of investigation is allowed to extend up to 3 months, the decision must adopt the head of the relevant authority. For cases, the investigation of which is associated with special difficulties, the period of conducting procedural events can be increased to 12 months. The appropriate decision is made by the head of the investigating unit on the subject of the Russian Federation or another leader equivalent to it, or their substituents.
The subsequent increase in the period of the investigation is carried out in exceptional cases. The basis for this is the decision of the Chairman of the SC, the head of the investigative division of the relevant federal executive body or their deputies.
When returning the investigator of materials from the prosecutor's office in accordance with Parts 1.1 of Art. 211, 1 tbsp. 214 and paragraph 2 1 of part 221 of the Criminal Procedure, the term for the implementation of the instructions of the prosecutor is determined by the head of the investigative body that has taken the case to its production. At the same time, it can not be more than 1 month from the date of receipt of materials.
In the event of a resumption of a terminated or suspended case or returning it to fulfill an additional investigation, the term of investigation should not exceed 1 month. From the date of adoption by his investigator. The subsequent increase in the period is made by the general rules fixed 162 article Code (parts 4, 5, 7).
Features of the implementation of procedural events
According to the general rules, within the framework of the preliminary investigation, carried out by the investigator, the preliminary investigation is made by the employees alone. In this case, the legislation allows the implementation of the procedural actions to the investigative group. Such a need arises when investigating particularly complex cases or with a large amount of procedural activities.
The head of the investigating unit decides to attract a group of specialists and on the adjustment of its composition. The relevant decision provides a list of all employees who are involved in procedural activities. IN obligatory Indicates a person leading and coordinating their actions. The work of the group can involve employees leading operational-search operations.
Suspects accused, their representatives get acquainted with the list of employees authorized to exercise a pre-trial investigation in the form of preliminary investigation.
Finishing stage
Preliminary consequence as a form of prior investigation may end with an indictment, if all procedural activities have been fulfilled, and the evidence collected enough to present the charges. At the same time there should be no basis for termination of the case.
Before an authorized employee proceeds to drawing up a conclusion, it must comply with a number of mandatory procedural actions. Among them:
- The notification of the accused and clarification of him of the right to get acquainted with the materials of the case independently or with the help of a defender (representative). The corresponding action is issued by the protocol.
- Notice of the representative (defender), the victim, civil defendant and the plaintiff or their representatives.
The preliminary investigation as the main form of a preliminary investigation, thus, includes many procedural actions. All of them must be fixed in relevant protocols and regulations.
After reaching an indictment, the investigator immediately sends the prosecutor's materials. Further solutions and action on the case are regulated by the norms of chapter 31 of the Code of Criminal Procedure.
Inquiry
Within the framework is not always mandatory. In cases stipulated by law, Instead, an inquiry is held.
From a legislative point of view, the investigator is not the only subject authorized to conduct an inquiry. The investigator can participate in performance. Meanwhile, according to a number of authors, the mention of this officer It seems quite dubious. Due to this as follows.
The investigation and inquiry as a form of preliminary investigation have a lot in common, however, together, they are distinguished by some specific signs. Thus, the investigator cannot be guided by the procedural rules envisaged for the investigation into the investigation into the investigation, drawing up an indictment, approval from the authority of the inquiry authority, etc.
In the theory of criminal law, traditional believes that, as part of a preliminary investigation, the preliminary investigation is carried out by one entities, and inquiry - others. Each of them is endowed with appropriate authority. The investigator leads the investigator, and inquiry - the investigator. With this and some other signs, these forms of investigation delimited.
In terms of production, a central investigator, the investigator has the right to investigate, but solely in order of preliminary investigation. According to 4 parts 150 of the Code of Criminal Project, according to the written order of the prosecutor, the case specified in paragraph 1 of the same norm may be transmitted to fulfill preliminary investigative activities. In practice, there were no cases when the investigator produced inquiry.
Specificity of application norms
The rules for the production of inquiry in general Fixed in parts 1 and 2,223 of the Code of Criminal Projects. It is carried out in the manner defined by chapters 21, 22, 24-29 with some seizures specified in ch. 32 Code. From this it follows that there are absolutely all provisions for the preliminary investigation, the implementation of procedural actions, suspension, renewal of investigation and discontinuation of production. If the rules established for inquiry are not consistent with the procedure for preliminary investigation, the application is subject to special normsgoverning this particular form of investigation.
General provisions
Inquiry is performed on cases of medium and small severity, listed in 1 paragraph 3 of part 150 of the Code of Criminal Projects, for which the result is optional. Also, this form of investigation can be applied in the framework of the production of other crimes, but according to the written order of the prosecutor.
In accordance with Article 223 of the Code of Criminal Procedure, 30 days from the date of opening date are given to the inquiry. If there is foundations, it can be extended no more than 30 days. The corresponding ruling is made by the prosecutor. If necessary, in all. For examination, the term can be increased to 6 months. The corresponding decision is authorized to accept the prosecutor of the district, the city, equivalent to him or their deputies. In the presence of exceptional circumstances related to the implementation of the request for the provision legal aid, formed and directed according to the rules of 453 of the Code of Criminal Procedure, is allowed to increase to 12 months. The decision about this is taken by the prosecutor of the subject of the Russian Federation or a military prosecutor equivalent to it.
Direction of notification
In the case when the case was initiated on the fact of the criminal act and in the framework of the inquiry, a sufficient amount of information was obtained, which gives reason to suspect a citizen in involvement in this encroachment, in the legislation provided for the duty of the investigator to compile a special procedural document. It is a notice of suspicion of a person in committing a crime.
According to the rules enshrined part 2 of Art. 223.1 CPC, in this document should be indicated:
- Place and date of compilation.
- F. I. O. employee.
- F. I. O. Suspected citizen, his birth date.
- A description of the signs of acts indicating the time and place of the commission, other circumstances to be proof in accordance with paragraphs 1 and 4.1 of Part 73 of the Code of Criminal Projects.
- The specific norm of the Criminal Code, its part, the point that punish the crime.
conclusions
Taking into account the above information, one can clearly determine what is the preliminary investigation from the investigation. The last concept is more common. It covers two types of procedural activities - an inquiry carried out mainly by the investigators and a preliminary investigation.
The differences in the preliminary investigation from other types of procedural activities are obvious. The legislation clearly establishes the composition of the entities authorized on its implementation, the procedure for the implementation of the necessary actions, including collecting and fixing evidence.
What signs are distinguished by a forensic investigation?
The procedural activity of the court aimed at studying the evidence received and the establishment of the actual circumstances of the act is considered the central link of legal proceedings. The judicial investigation allows you to create a foundation on which further stipulated by law Procedures. We are talking in particular about the debates of the parties and sentencing. The legality and validity of the final decision on the case are largely determined by the quality of the judicial investigation.
From a preliminary investigation, this procedural activity is characterized by a number of essential features. First of all, the study of the evidence collected in the case in court is performed orally, vowels, directly and continuously. This allows you to significantly recreate events.
The judicial investigation is performed by another person - the judge. At the same time, the parties of production take directly and actively participated in it. At the same time, during the process, simultaneous study and analysis of the assembled evidence from various positions is ensured.
In the process of proceedings, any possible versions of what happened are subject to verification. The court will follow the one that is reflected in the indictment. He must make a decision based on evidence, studied and analyzed at the court session.
Process course
Before the start of the study of materials, the court displays the content of documents reflecting the accusation. The following discusses and establishes the procedure for studying evidence.
The announcement of the indictment is aimed at a public message about the subject of proceedings.
If the inquiry or the investigation was not carried out in the case, the meeting begins with the announcement of the statement of the victim of the crime. If there is in the case of the case civil law Its content is also reported to the participants of the hearing.
After the announcement of the accusation, the court should figure out the attitude towards him of the defendant. For this, the presiding party polls. During the survey, it is established, whether a citizen recognizes himself guilty in the deed. After that, the rules for the research of evidence are discussed and established.
It is worth saying that despite enough detailed regulation procedural order The fulfillment of each judicial action, the legislation does not establish a predetermined sequence of their implementation. This is due to the specifics of evidence for each specific case.
The law provides for the court the right to independently determine at the beginning of the consequence the most expedient procedure for studying evidence. For this, the proposals of the prosecutor, the defender, the defendant, civil defendant and the plaintiff, the victim, their representatives about the sequence of interrogation of persons attracted to the proceedings (including experts and specialists) are heard. According to the results of their study, the court makes a decree, which reflects the procedure for studying the submitted materials. At any moment, it can change the rules set earlier, which makes the appropriate definition.
Conclusion
A preliminary investigation is considered the longest part of criminal procedure. During it, a sufficiently large number of documents are drawn up. At the pre-trial investigation stage, many criminal procedural tasks are solved.
The activities of investigators and investigators are based on the principles of legality, general rulesfixed CPC. The implementation of legislative regulations contributes to improving the effectiveness of the fight against crime, upbringing among citizens of respect for the norms of law, strengthening the rule of law.
At the same time, the production of preliminary investigation in the absence of sufficient foundations is recognized as a gross violation of the law. In this case, significant damage is caused by the interests of society and the state, rights and freedoms of individuals.
Even more relatively recently, there were often cases of violation of the periods of investigation, the procedure for its conduct, ignoring the procedural independence of the investigative bodies and other violations. All this led to unreasonable spending, forces, time law enforcementDistracting their attention from the disclosure of grave crimes. Undoubtedly, any violations of the law by employees of authorized bodies undermine their authority.
Currently, cases of non-compliance with the prescriptions are ever less common. Today, the preliminary investigation as a stage of pre-trial production is paid to increased attention. Prosecutors carefully check the materials entering them, do not allow unreasonable indictments. Compliance with legality contributes to and judicial investigation. As part of the proceedings, all the evidence collected is investigated by an independent official.