Study questions:
1. Powers of the prosecutor and forms prosecutorial supervision in the stages of initiation of a criminal case and preliminary investigation.
2. Concept, essence, meaning and types judicial control in the stages of initiation of a criminal case and preliminary investigation.
3. Departmental control over the inquiry and preliminary investigation.
1. Federal Constitutional Law of February 7, 2011 No. 1-FKZ (as amended and supplemented) "On the Courts general jurisdiction» // Russian newspaper... 2011.11 February;
2. Code of Criminal Procedure Russian Federation dated 18.12.2001 No. 174-FZ (as amended and supplemented) // Rossiyskaya Gazeta. 2001.December 22
3. the federal law dated 17.01.1992 N 2202-1 (as amended and supplemented) "On the Prosecutor's Office of the Russian Federation" // Rossiyskaya Gazeta. 1995. November 25;
4. Federal Law of the Russian Federation of February 7, 2011 No. 3-FZ (as amended and supplemented) "On the Police" // Rossiyskaya Gazeta. 2011.8 February;
5. Order of the Government of the Russian Federation of 03/06/2013 N 313-r<"Об утверждении государственной программы Российской Федерации "Обеспечение общественного порядка и противодействие преступности">// Official Internet portal of legal information http://www.pravo.gov.ru, 11.03.2013;
6. Order of the Prosecutor General's Office of Russia of 03.07.2013 N 262 "On the organization of prosecutorial supervision over the execution of laws in the course of an inquiry in an abbreviated form" // "Legality", N 9, 2013
7. Order of the Prosecutor General's Office of Russia dated 02.06.2011 N 162 "On the organization of prosecutorial supervision over the procedural activities of the preliminary investigation bodies" // "Legality", N 11, 2011
8. Order of the Prosecutor General's Office of the Russian Federation of 12.07.2010 N 276 (as amended on 22.04.2011) "On the organization of prosecutorial supervision over the fulfillment of the requirements of the law on observance of a reasonable time at the pre-trial stages of criminal proceedings" // Legality. N 10, 2010.
Main literature:
1. Fundamentals of criminal procedure: Textbook. St. Petersburg: Publishing house of St. Petersburg University of the Ministry of Internal Affairs of Russia, 2013. - 336 p.
2. Criminal procedure: a textbook for bachelors / Ros. right. acad. M-va yust. Ros .; ed .: A. I. Bastrykin, A. A. Usachev. - M .: Yurayt, 2013 .-- 512s.
3. Criminal procedure: a course of lectures. SPb .: Publishing house of SPbU University of the Ministry of Internal Affairs of Russia, 2011. - 544 p.
4. Criminal procedure law of the Russian Federation: textbook / Otv. Ed. P.A. Lupinskaya. - 2nd ed. revised and add. M., 2010.
Additional literature:
1. Volynsky V.V. Judicial control over the activities of the preliminary investigation bodies at the stage of initiation of a criminal case: abstract of dis. ... Cand. jurid. Sciences: 12.00.09 / V.V. Volynsky; All-Russian Research Institute of the Ministry of Internal Affairs Ros. - M., 2013 .-- 27 p.
2. Pikalov IA Criminal process in diagrams and tables: a tutorial / IA Pikalov. - M.: Eksmo, 2010 .-- 494 p. Khairullina, Elina Azatovna.
3. The system of procedural decisions of the prosecutor in pre-trial proceedings in a criminal case: abstract dis. ... Cand. jurid. Sciences: 12.00.09 / E. A. Khairullina; Ural. state jurid. acad. - Yekaterinburg, 2013 .-- 24 p.
4. Teryokhin A. A. Acts of the prosecutor's response in the Russian criminal proceedings: abstract of thesis. ... Cand. jurid. Sciences: 12.00.09 / A.A.Teryokhin; YuzhUGU. - Chelyabinsk, 2013 .-- 19 p.
Studying judicial control it is necessary to understand: methods of judicial control over preliminary investigation; the grounds and procedure for the adoption by the court of decisions permitting the production of procedural actions, as well as the procedure for the consideration by the court of complaints against actions (inaction) and decisions of the prosecutor, investigator, body of inquiry, inquiry officer.
Regarding the supervision of the prosecutor over the procedural activities of the bodies of inquiry and the bodies of preliminary investigation, it is necessary to understand the powers of the prosecutor, the acts of the prosecutor's response to the preliminary investigation and the time frame for making decisions.
When studying the departmental control over the preliminary investigation, the trainees must determine the terms of reference of the officials who carry it out: the head of the investigative body and the head of the inquiry body.
Knowledge control tests
1. What are the possible decisions of the superior head of the investigative body in the case when the execution of the instructions of the head of the investigative body is suspended due to the disagreement of the investigator:
a) cancellation of the instructions of the subordinate head of the investigative body;
b) direct instruction to the investigator to obey the instructions given to him, regardless of his disagreement;
c) referral of the case to the prosecutor to determine the jurisdiction;
d) initiation of a petition before the court for the disqualification of an investigator and / or a subordinate prosecutor.
2. Can the inaction of the investigator be appealed against:
a) no, only action;
c) yes, but only to court;
d) yes, but only to the prosecutor.
3. The deadline for consideration by a judge of a complaint about the legality and validity of actions (inaction) and decisions of an inquiry officer, investigator, prosecutor is:
a) 3 days from the date of receipt of the complaint;
b) 5 days from the date of receipt of the complaint;
c) 10 days from the date of receipt of the complaint;
d) the complaint must be considered immediately;
e) there is no deadline.
Topic 18. Jurisdiction and preparation for the court session
Study questions:
1. Concept and meaning of jurisdiction. Correlation of concepts of jurisdiction, competence, jurisdiction of criminal cases.
2. Signs and types of jurisdiction.
3. The concept and tasks of the stage of preparation of the court session. The procedural order of preparation of the court session.
4. Preliminary hearing: concept, grounds, procedural order. Types of decisions made by the judge at the preliminary hearing.
Regulations:
1. The Constitution of the Russian Federation: adopted by popular vote on December 12, 1993 (revised 05.02.2014) // Rossiyskaya Gazeta. 1993 December 25;
2. Federal Constitutional Law of December 31, 1996 No. 1-FKZ (as amended and supplemented) "On the judicial system of the Russian Federation" // Rossiyskaya Gazeta. 1997. No. 3. January 6;
3. Federal Constitutional Law of February 07, 2011 No. 1-FKZ (as amended and supplemented) "On courts of general jurisdiction" // Rossiyskaya Gazeta. 2011.11 February;
4. Federal Constitutional Law of June 23, 1999 No. 1-FKZ (as amended and supplemented) "On military courts of the Russian Federation" // Collected Legislation of the Russian Federation. 1999. No. 26. Art. 3170;
5. The Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ (as amended and supplemented) // Rossiyskaya Gazeta. 2001.December 22;
6. Federal Law of December 17, 1998 No. 188-FZ (as amended and supplemented) "On Justices of the Peace in the Russian Federation" // Collected Legislation of the Russian Federation. 1998. No. 51. Art. 6270;
7. Federal Law of August 20, 2004 No. 113-FZ (as amended and supplemented) "On jurors of federal courts of general jurisdiction" // Collected Legislation of the Russian Federation. 2004. No. 34. Art. 3528.23 Aug;
Main literature:
1. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 2009 No. 28 "On the application by courts of the norms of criminal procedure legislation governing the preparation of a criminal case for trial" (as amended on June 28, 2012) // Rossiyskaya Gazeta. 2010. No. 3. 13 Jan .;
2. Fundamentals of criminal procedure: Textbook. St. Petersburg: Publishing house of St. Petersburg University of the Ministry of Internal Affairs of Russia, 2013. - 336 p. eight.
3. Criminal procedure: a textbook for bachelors / Ros. right. acad. M-va yust. Ros .; ed .: A. I. Bastrykin, A. A. Usachev. - M .: Yurayt, 2013 .-- 512s.
4. Criminal procedure: a course of lectures. SPb .: Publishing house of SPbU University of the Ministry of Internal Affairs of Russia, 2011. - 544 p.
5. Criminal procedure law of the Russian Federation: textbook / Otv. Ed. P.A. Lupinskaya. - 2nd ed. revised and add. M., 2010.
Additional literature:
1. Lantukh N.V., Shestakova S.D. Preparation for the court session // Criminal procedure: textbook for law schools: 2 hours. Part 2. Court proceedings / Ed. IN AND. Rokhlin, V.P. Salnikov. SPb., 2009.
2. Moiseeva, M.A. Historical preconditions for the emergence of the institution of returning a criminal case to the prosecutor / M.A. Moiseeva // History of State and Law. - 2008. - No. 19. - P. 11 - 13. 3.
3. Tugutov B. Return of the criminal case by the court to the prosecutor // Legality. 2012. No. 8.
4. Ryabtseva E.V. Justice in the criminal process of Russia. M., Jurlitinform, 2010.
In the course of work, it is necessary to pay attention to the concept and meaning of the stage of preparation for the court session. It should be noted that this is an independent stage of the criminal process, in which the judge examines and checks the criminal case filed with the court and finds out whether there are sufficient grounds for considering this case in the court session. If there are such grounds, the judge decides on the appointment of a court session, gives an order to carry out preparatory actions and the case proceeds to the next stage of the criminal process - the stage of trial.
After the judge makes a decision on the appointment of a court session, the accused becomes a defendant. It is recommended to start studying the stage of preparation for the court session through its signs, namely: the tasks of the stage; stage participants; stage facilities; stage timing; decisions taken at this stage. This will allow you to form a holistic view of it and understand its essence. Every criminal case that is sent by the prosecutor to the court goes through this stage. It is necessary to familiarize yourself with the list of questions to be clarified on the criminal case filed with the court. Understand the procedure for preparing for the trial.
Considering the preliminary hearing, it is necessary to understand the grounds and procedure for its holding, the types of decisions made by the judge at the preliminary hearing.
Knowledge control tests
1. Jurisdiction, under which district courts must consider all criminal cases, except for those that, by law, are subject to the jurisdiction of higher general or military cases, is called:
a) exceptional:
b) territorial;
c) subject;
d) personal;
e) jurisdiction over the connection of cases.
2. If the crime was started in a place that is subject to the jurisdiction of one court, and ended in a place that is subject to the jurisdiction of another court, then the case is subject to jurisdiction:
a) at the place where the crime started;
b) at the place where the crime ended;
c) the court of a constituent entity of the Russian Federation;
d) the Supreme Court of the Russian Federation;
e) the Supreme Arbitration Court of the Russian Federation.
3. One of the stages of the stage of preparation for the court session is:
a) sentencing;
b) preliminary hearing;
c) consideration of the case on appeal;
d) consideration of the case in cassation procedure;
e) consideration of the case by way of supervision.
3. The judge must make a decision on the criminal case received by the court from the date of its receipt not later than:
a) five months;
b) four months;
c) three months;
d) two months;
e) 30 days.
4. One of the goals of the stage of preparing the case for the court session is:
a) resolve the issue of a person's responsibility for the crime committed;
b) determine the measure of punishment;
c) pass a sentence;
d) create the necessary conditions for the upcoming court session;
e) all of the above is true.
5. Termination of a criminal case by a court is possible if:
a) the accused has escaped from custody, and his place of stay is unknown;
b) the accused has not been served with a copy of the indictment;
c) the indictment was drawn up in violation of the requirements of the RF PEC;
d) there is no corpus delicti;
e) all of the above is true.
6. A preliminary hearing is held:
a) by a court in open session;
b) single-handedly as a judge in an open session;
c) single-handedly as a judge in a closed session;
d) by a court in a closed session;
e) the prosecutor and the court.
7. A preliminary hearing is held if:
a) there are grounds for terminating the case;
b) there are no petitions of the parties;
c) there are no grounds for the suspension of the criminal case;
d) there are no grounds for returning the criminal case to the prosecutor;
e) the question of a special procedure for the trial is not raised.
Prosecutor's supervision and departmental control are the procedural mechanisms established by law to ensure the legality of the inquiry and preliminary investigation. Along with judicial control, these forms of activities of the prosecutor, the head of the investigative body and the head of the inquiry body (head of the inquiry unit) create additional legal guarantees for compliance with the procedure for criminal proceedings, the quality and efficiency of preliminary investigation, and ensuring the rights and freedoms of participants in criminal proceedings.
According to Art. 29 of the Federal Law of January 17, 1992 N 2202-I "On the Prosecutor's Office of the Russian Federation"
observance of human and civil rights and freedoms,
compliance with the established procedure for resolving statements and messages about committed and impending crimes,
compliance with the established procedure for the implementation of operational-search measures and investigation, as well as
the legality of decisions taken by the bodies carrying out operational-search activities, inquiry and preliminary investigation.
The powers of the prosecutor to supervise the execution of laws by bodies carrying out operational-search activities, inquiry and preliminary investigation are established by the criminal procedure legislation of the Russian Federation and other federal laws.
Thus, the powers of the prosecutor for the inquiry are very substantial. According to Part 2 of Art. 37 of the Code of Criminal Procedure and a number of other provisions of the law, the interrogator is obliged to coordinate with the prosecutor a number of procedural decisions, as well as petitions sent to the court. In addition, the prosecutor is in charge of questions about the extension of the time limit for inquest, about recusals and self-recusals of the inquirer, about his removal from the investigation, etc. actions, etc. His competence also includes consideration of complaints about actions (inaction) and decisions of the inquiry officer with the right to cancel or partially change them, approval of the indictment and many other procedural powers.
Prosecutor's supervision over the course of the preliminary investigation is reduced to only some powers. Thus, the prosecutor has the right to consider complaints about the actions (inaction) or decisions of the investigator, demand that the preliminary investigation authorities eliminate violations of federal legislation, resolve disputes about jurisdiction, make a decision on a criminal case filed with an indictment, and exercise some other supervisory powers.
In accordance with the Code of Criminal Procedure of the Russian Federation, prosecutorial supervision at the stage of initiation of a criminal case is ensured by the actions of the investigation and inquiry bodies, which consist of:
in the direction of the criminal case to the prosecutor to determine the jurisdiction (if necessary) - paragraph 3 of Art. 146 of the Criminal Procedure Code;
in the immediate direction of a copy of the decree on the initiation of a criminal case to the prosecutor (when a criminal case is initiated by the captains of sea or river vessels on long voyages, the leaders of geological exploration parties or wintering grounds, the heads of Russian Antarctic stations or seasonal field bases remote from the locations of the inquiry bodies, by the heads of diplomatic missions or consular offices of the Russian Federation, the prosecutor is immediately notified by the indicated persons of the initiated investigation). In this case, the decision to initiate a criminal case is transferred to the prosecutor immediately when a real opportunity arises for this. If the prosecutor recognizes the decision to initiate a criminal case as illegal or unreasonable, he has the right, no later than 24 hours from the date of receipt of the materials that served as the basis for initiating a criminal case, to cancel the decision to initiate a criminal case, about which he issues a reasoned resolution, a copy of which immediately sends to the official who initiated the criminal case - paragraph 4 of Art. 146 of the Criminal Procedure Code;
in issuing the prosecutor's consent to the inquiry officer when initiating a criminal case on any crime specified in parts two and three of Art. 20 of the Criminal Procedure Code;
in the direction of the prosecutor with a copy of the decision to refuse to initiate a criminal case.
Departmental control the course of the preliminary investigation is carried out by the head of the investigative body. To carry out this procedural function, he, in accordance with Art. 39 of the CPC is endowed with a very wide range of procedural powers. So, it is in the jurisdiction of the head of the investigative body that the issues of coordinating the preliminary investigation, agreeing and canceling a number of procedural decisions and petitions of the investigator, his recusations and self-recusations, extension of the preliminary investigation, etc. are in charge. preliminary investigation bodies, separation of prosecutorial and investigative functions and, in the opinion of the legislator, should influence the improvement of the quality and effectiveness of this form of investigation.
Departmental control over the activities of the inquiry officer is carried out by the head of the inquiry body and the head of the inquiry unit, which, in accordance with Art. 401 and 41 of the CPC are endowed with some functions to coordinate this form of investigation, as well as to ensure the legality and validity of the investigator's decisions.
Having recognized the refusal to initiate a criminal case as illegal or unreasonable, the judge issues an appropriate resolution, forwards it for execution to the head of the investigative body or the head of the inquiry body and notifies the applicant about it (Clause 7, Article 148 of the Code of Criminal Procedure of the Russian Federation).
39. Investigative actions (concept, types of investigative actions, grounds and conditions for carrying out, correlation of investigative actions with procedural decisions, search actions, operational-search measures).
It is necessary to distinguish between the concepts of "investigative actions" and "procedural actions". Procedural actions - any actions of an investigator, inquirer, regulated by law: interrogations and identification, searches and seizures, bringing as an accused and choosing a preventive measure, issuing an order to terminate a criminal case and drawing up an indictment, etc. Investigative actions - only such actions investigator, interrogator, who are aimed at collecting and checking evidence. They are the main means of establishing the circumstances in a criminal case. Types of investigative actions: 1) inspection (scene of the incident, terrain, premises, object, documents, postal and telegraph correspondence, corpse); 2) examination (of the accused, suspect, witness or victim); 3) interrogation (suspect, accused, witness, victim, expert); 4) confrontation; 5) presentation for identification (living people, objects, documents, corpse, buildings, terrain, animals from photographs); 6) seizure (items, documents); 7) control and recording of conversations; 8) search (premises, areas of the terrain, personal search); 9) the seizure of postal and telegraphic items, their inspection and seizure; 10) investigative experiment; 11) verification of testimony on the spot; 12) appointment and production of expert examination; 13) obtaining samples for comparative research. The production of any investigative action is possible only if there are grounds for this established in the law: factual and legal. Factual grounds mean certain data, first of all, evidence that dictate the need for a particular investigative action. Under the legal, sometimes they say, legal, basis is understood as the presence of the investigator (body of inquiry) the authority to carry out an investigative action, confirmed by the relevant procedural act issued in accordance with the procedure established by law. We are talking about the need for: a decision on the production of an investigative action; obtaining the consent of the prosecutor; a court decision on the performance of an investigative action.
General conditions for the production of investigative actions are the main legal provisions, which are expressed in legal norms and determine the procedural form of actions. General rules for the conduct of investigative actions: 1. Investigative actions: exhumation, examination, search and seizure - are carried out on the basis of a decision of the investigator. 2. Investigative actions restricting the constitutional rights of citizens are carried out by a court decision. These include: inspection of the dwelling in the absence of the consent of the persons living in it; search and (or) seizure of the home; personal search, with the exception of cases of personal search during arrest on suspicion of committing a crime; seizure of items and documents containing state or other secrets protected by federal law, as well as items and documents containing information on deposits and accounts of citizens in banks and other credit organizations; seizure of correspondence, its examination and seizure in communication establishments; on the control and recording of telephone and other conversations. 3. The performance of an investigative action at night is not allowed, except in cases of urgent delay. 4. During the performance of investigative actions, the use of violence, threats and other illegal measures, as well as the creation of a danger to the life and health of persons involved in them, is unacceptable. 5. The investigator, engaging the participants in the criminal proceedings to participate in the investigative actions, certifies their identity, explains to them their rights, responsibility, as well as the procedure for carrying out the corresponding investigative action. If a victim, witness, specialist, expert or translator participates in the production of an investigative action, then he is also warned about the liability provided for in Art. 307 and 308 of the Criminal Code of the Russian Federation. 6. During the performance of investigative actions, technical means and methods of detecting, fixing and seizing traces of a crime and material evidence may be used. 7. The investigator has the right to involve an official of the body carrying out operational-search activities, as well as a specialist, an interpreter, to participate in the investigative action, about which a corresponding note is made in the protocol. 8. During the production of the investigative action, a protocol is kept in accordance with Art. 166 of the Criminal Procedure Code. 9. Such investigative actions as: examinations, exhumation, investigative experiment, search, seizure, inspection and seizure of postal and telegraph correspondence, control and recording of telephone and other conversations, presentation for identification, verification of testimony on the spot - are carried out with the participation of at least two attesting witnesses who are summoned to certify the fact of an investigative action. In other cases, investigative actions are carried out without the participation of attesting witnesses, unless the investigator decides otherwise at the request of the participants in the criminal proceedings or on his own initiative.
40. Interrogation of witnesses and victims (concept, grounds, procedural order; procedural registration, annexes to the interrogation protocol; fixing the refusal of witnesses to testify; assessment of the testimony of witnesses and victims).
Interrogation consists in obtaining by the investigator from a witness or a victim testimony about the circumstances to be proved in a criminal case.
Interrogation, regardless of the procedural position of the person being interrogated, is carried out at the place of production of the preliminary investigation (Article 187 of the CCP). If necessary, interrogation can be carried out at the place of residence, treatment or any other location of the interrogated.
A witness, a victim is summoned to the investigator with a subpoena (Article 188 of the Code of Criminal Procedure). The summons is handed over to the person summoned for interrogation against receipt or transmitted by means of communication. A person under the age of sixteen is summoned for interrogation through his legal representatives or through the administration at the place of his work or study.
The interrogation cannot last continuously for more than 4 hours. Continuation of interrogation is allowed after a break for at least 1 hour for rest and eating, and the total duration of interrogation during the day should not exceed 8 hours.
Before the interrogation begins, the investigator confirms the identity of the interrogated, after which he explains to him his rights and responsibilities, as well as the procedure for interrogation. The investigator is free to choose the tactics of interrogation. It is forbidden to ask leading questions.
A witness has the right to appear for interrogation with a lawyer (part 5 of article 189 of the Criminal Procedure Code). A lawyer has the right to: give a witness brief consultations in the presence of an investigator; ask the witness questions with the permission of the investigator; make written comments on the correctness and completeness of the records in the protocol, as well as statements on violations of the rights and legitimate interests of the witness. The investigator can divert the questions of the lawyer, but is obliged to enter the allotted questions in the interrogation protocol.
At the end of the interrogation, the interrogated person is presented for reading the interrogation protocol or, at his request, the protocol is announced by the investigator. The interrogated person signs each page of the protocol and the protocol as a whole.
The interrogation of a victim or witness under the age of fourteen, at the discretion of the investigator - and at the age of fourteen to eighteen - is carried out with the participation of a teacher (Article 191 of the Code of Criminal Procedure). Patients and witnesses under the age of sixteen are not warned about responsibility for refusing to testify and for knowingly giving false testimony.
Confrontation is a simultaneous interrogation of those previously interrogated in connection with circumstances about which there are significant contradictions in their testimonies (Article 192 of the Criminal Procedure Code).
At the beginning of the confrontation, the investigator turns to the interrogated persons with the question whether they know each other and in what relations they are among themselves. Then, one by one, they are invited to give evidence on the circumstances, for the clarification of which a confrontation is made. After giving testimony, the investigator has the right to ask additional questions one by one, aimed at clarifying the contradictions that have arisen. With the permission of the investigator, the persons between whom the confrontation is held may ask questions to each other.
The testimonies of the interrogated persons at the confrontation are recorded in the protocol of the confrontation in the sequence in which they were given. Each of the interrogated persons signs his testimony and each page of the protocol separately.
41. Seizure (concept, grounds, procedural order; correlation with a search; procedural registration of the "transition" of seizure to a search; procedure for storing items, money and other valuables seized during seizure and search).
Seizure - an investigative action consisting in the seizure of items, valuables or documents that are important for the investigation and are in the possession or control of a specific person or institution. During the seizure of material assets, in addition to a representative of the relevant enterprise, institution or organization, a materially responsible person must be present.
Unlike a seizure search, it is known exactly where, who and what items or documents are stored, so there is no need to search for them. However, seizure can be carried out both by voluntary extradition and compulsory. If, during the seizure, it turns out that the necessary objects are hidden by interested persons, a resolution is issued and an urgent search is carried out. The seizure is carried out according to a reasoned decision, but the sanction of the prosecutor is not required for it, with the exception of the seizure of postal and telegraph correspondence.
Preparation for excavation includes the solution of the following issues: 1) where, when and from whom the excavation should be performed; 2) who will participate and be present at its holding; 3) what exactly should be removed.
The solution to the first question depends on the materials that the investigator has at his disposal, as well as on the current investigative situation. The decision of the question of who will participate and be present during the seizure depends on the documents or items to be seized. The question of the participants in the investigative action should also be carefully thought out.
If the required objects were issued voluntarily and there is no reason to fear the concealment of any objects, documents or valuables not specified in the resolution, the investigator is limited only to their seizure. Otherwise, he makes them forcibly withdrawn. For this purpose, he has the right to open locked vaults. If the desired objects are hidden, then the investigator issues a search warrant and conducts it immediately.
A detailed inspection of the seized objects should be carried out at the site of the seizure. However, when this requires special technical means, the knowledge of specialists, for a long time, the examination is carried out in another place as an independent investigative action.
Notch differs from a search in that for its production it must be known exactly where and from whom the objects to be seized are located (part 1 of article 183 of the Criminal Procedure Code of the Russian Federation).
42. Inspection (concept, types, grounds, procedural order, procedural registration).
Inspection - examination of objects in order to detect traces of a crime, objects that can serve as material evidence, clarify the situation of the incident and other circumstances significant for the case.
Inspection is carried out by: an interrogator, investigator or other official conducting the investigation, in the presence of attesting witnesses, with the exception of cases provided for in Art. 170 of the Criminal Procedure Code of the Russian Federation. Inspection of the area or premises in some cases is also carried out by the court (Article 287 of the Code of Criminal Procedure of the Russian Federation). In this case, the participation of attesting witnesses is not required.
Initially, the object is examined in the form in which it was discovered at the beginning of the inspection (static stage), after which a more detailed study of the object being examined is carried out, during which individual objects can move (dynamic stage).
During the inspection, appropriate measurements can be made, photographic, film or video filming, plans, diagrams can be drawn up, casts and prints of traces can be made.
Inspection of a dwelling is carried out only with the consent of the persons living in it or on the basis of a court decision (Article 165 of the Code of Criminal Procedure of the Russian Federation).
An external examination of the corpse at the place of detection is carried out in the presence of attesting witnesses with the participation of a specialist in forensic medicine or another doctor (Article 178 of the Code of Criminal Procedure of the Russian Federation).
Examination - examination of a human body in order to detect special signs, traces of a crime, bodily harm, to identify a state of intoxication or other properties and signs that are important for a criminal case, if this does not require a forensic examination. He can subject the suspect, the accused, the victim, as well as the witness with his consent, except in cases where the examination is necessary to assess the reliability of his testimony.
It is carried out by the investigator, without the participation of attesting witnesses (part 1 of article 170 and part 3 of article 179 of the Code of Criminal Procedure of the Russian Federation). When examining a person of the opposite sex, accompanied by nudity, the investigator is not present. In this case, the examination is carried out by a doctor.
The results of all types of inspection, including the survey, are drawn up in a protocol in compliance with the requirements of Art. 166 and 167 of the Code of Criminal Procedure of the Russian Federation.
The emergence and formation of judicial control in the criminal process of Russia
The institution of judicial control in Russia was introduced by the judicial reform of the 60s. XIX century. Its essence consisted in the examination by the court of the legality of the actions of the police, the prosecutor and the forensic investigator on the complaint of a participant in the criminal process. The subject and scope of the judicial review was determined by the person who brought the complaint. Article 491 of the Charter of Criminal Procedure of 1864 established that “any investigative action that violates or hinders” the rights of the persons involved in the case may be appealed to the court. This mechanism of legal regulation existed for several decades and was abolished in the first years of Soviet power.
The criminal procedural legislation from 1922 until 1992 did not contain the institution of appealing to the court the legality of actions and decisions of the preliminary investigation bodies. The court exercised control over the pre-trial proceedings indirectly. It was carried out during the appointment and preparation for the court session, the consideration of the case in court proceedings, the examination of cases in the appeal, cassation, supervisory procedure. The subject of judicial review covered the results of the entire investigation. The court established the legality of each procedural action carried out and the decision taken during the investigation of the criminal case.
The Criminal Procedure Code, based on the provisions of the Constitution of the Russian Federation, significantly changed subject and scope of judicial control for pre-trial proceedings. Saturated with major elements of adversarial nature, he empowered the court to directly make decisions on limiting the constitutional rights of citizens and to consider complaints from participants in criminal proceedings about the illegality of the actions of the bodies of inquiry, investigation and the prosecutor. At the same time, the Criminal Procedure Code did not grant the court the right to exercise audit control for the completeness, comprehensiveness and objectivity of the preliminary investigation.
According to the current Criminal Procedure Code, the court exercises control powers over the activities of the prosecutor, the bodies of preliminary investigation and inquiry in the forms of direct and indirect (mediated) control.
Direct control pre-trial proceedings are carried out by the court through direct decision-making on the conduct of investigative actions, the application of preventive measures, other measures of procedural coercion that restrict the constitutional rights and freedoms of citizens (Articles 29 and 3 of Article 183 of the Criminal Procedure Code).
Indirect control for pre-trial proceedings is carried out by the court through a legal assessment of the legality (validity) of actions (inaction) and decisions of officials of the preliminary investigation bodies. Indirect control is carried out in the following forms: a) verification of the legality of investigative actions carried out in urgent cases (part 5 of article 165 of the Criminal Procedure Code); b) consideration of complaints from participants in criminal proceedings against the actions and decisions of the prosecutor, the inquiry body, the head of the inquiry unit, the inquiry officer, the head of the investigative body, the investigator (Article 125 of the Criminal Procedure Code); c) direct detection of violations of the rights and freedoms of citizens, other violations of the law committed during the inquiry and preliminary investigation in the court session during the consideration of a criminal case (part 4 of article 29 of the Criminal Procedure Code).
In the theory of Russian criminal procedure, there are different opinions about the essence and significance of judicial control.
In the opinion of others - in the resolution of the dispute of the parties about the law. The court, resolving on the merits a dispute between the parties on the limitation of the constitutional rights of a citizen, protects, restores or compensates for the right of one of the parties, and therefore administers justice (V.A.Lazareva).
Exercising control over the activities of the bodies of inquiry and investigation, the court is not responsible for the state of law and order, the content and quality of the investigation of criminal cases, does not prejudge the question of the guilt or innocence of the person who committed the crime.
Judicial control over the production of investigative actions
Investigative actions - inspection of the dwelling, in the absence of the consent of the persons living in it; search or seizure of a home; personal search, with the exception of cases provided for in Part 2 of Art. 184 of the Criminal Procedure Code; seizure of things pledged or deposited in a pawnshop; seizure of items and documents containing state or other secrets protected by federal law, as well as items and documents containing information on deposits, accounts in banks and other credit organizations; arrest of postal and telegraphic items, their inspection and seizure in communication establishments; control and recording of telephone and other conversations; placement of a suspect, an accused, who is not in custody, in a forensic medical or forensic psychiatric hospital for an examination (part 2 of article 29 of the Criminal Procedure Code); exhumation of a corpse from a burial place in the absence of the consent of relatives (part 3 of article 178 of the Criminal Procedure Code) is carried out on the basis of a court decision.
The procedure for obtaining a court decision on the production of an investigative action is described in Art. 165 of the Criminal Procedure Code. Its main elements are as follows. The investigator issues a resolution in which, with the consent of the head of the investigative body, he or she initiates a petition before the court for one of the investigative actions listed above. The decision of the inquirer on the production of an investigative action that restricts the constitutional rights of citizens is agreed with the prosecutor (clause 5, part 2, article 37 of the Criminal Procedure Code).
A petition for an investigative action is considered solely by a federal judge of a district (garrison) court at the place of preliminary investigation or the production of an investigative action within 24 hours from the moment it is filed with the court (part 2 of article 165 of the Criminal Procedure Code).
A prosecutor, an investigator or an inquiry officer has the right to participate in the court session. The participation of other persons, including the suspect, the accused, the defense lawyer, the victim and his representative, is not directly provided for by the law.
At the end of the consideration of the petition for the performance of the investigative action, the judge shall issue a resolution in which he gives permission for the performance of the investigative action or refuses to do so. In case of refusal to give consent, the judge must indicate the reasons for the refusal.
An inspection of a dwelling, a search, a seizure in a dwelling, a personal search, as well as the seizure of a thing pledged or deposited in a pawnshop in cases of urgency (part 5 of article 165 of the Criminal Procedure Code), can be carried out on the basis of a decision of an investigator or an inquiry officer without obtaining court decision with the subsequent notification of the judge. The investigator (interrogating officer) is obliged to notify the judge and the prosecutor about this within 24 hours from the moment of the commencement of the investigative action. Copies of the decision on the production of the investigative action, the protocol and other materials of the criminal case are attached to the notification.
The purpose of the judicial review is to establish the legality of the investigator's decision to carry out an investigative action. The court session is held openly with the participation of a prosecutor, an investigator (interrogator), a suspect, an accused, a defense lawyer, a legal representative, as well as other persons (for example, attesting witnesses) who were present during the performance of this investigative action.
Based on the results of the check, the judge makes a decision on its legality or illegality. In the case of establishing the absence of grounds or violation of the procedure for the production of an investigative action, the factual data lose their evidentiary value and are recognized as legally null and void.
Judicial control over the application of preventive measures
Preventive measures - detention, house arrest and bail are applied by a court decision in the manner prescribed by Art. 108 of the Criminal Procedure Code. A similar procedure is applied for the selection of a compulsory measure of an educational nature (Art. 247 of the CCP), the transfer of a suspect or accused in custody to a psychiatric hospital (Art. 435 of the CCP).
The elements of the procedure for choosing a preventive measure are as follows. The investigator, with the consent of the head of the investigative body, the inquirer, with the consent of the prosecutor, initiate a petition before the court for the detention of a person, house arrest, bail, issue a reasoned decision, and attach the materials of the criminal case to the decision, which are necessary and sufficient to confirm the grounds and motives for making the decision.
The decision to initiate a petition with the materials of the criminal case is sent to the district court and is subject to consideration in the court session by the judge alone at the place of preliminary investigation or at the place of detention of the suspect within eight hours from the moment of receipt of the petition.
Resolution of the Plenum of the Supreme Court of the Russian Federation of 05.03.2004 No. 1 "On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation" in part 3 of paragraph 11 contains an explanation that the consideration of a petition to elect a the extension of the period of detention is carried out in open court, with the exception of the cases provided for in Part 2 of Art. 241 of the Criminal Procedure Code.
At the same time, the defense side should be able to familiarize itself in advance with the petition and the materials supporting it (see Determination of the Constitutional Court of the Russian Federation of December 21, 2000 No. 285-O "On the complaint of citizen Panfilov Ruslan Petrovich about violation of his constitutional rights by Article 92 of the Criminal Procedure Code of the RSFSR" ). The law does not provide for the production of investigative actions when considering a petition. At the court session, the materials of the criminal case are announced, confirming the petition for the selection of a preventive measure. The defense side has the right to submit materials to the court that refute the opinion of the investigator (interrogator) about the need to isolate the accused from society or the expediency of posting bail.
When considering a petition to choose a preventive measure in the form of detention, the judge should not examine the evidence and discuss the question of the involvement of the suspect or the accused in the crime committed (see paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 05.03.2004 No. 1 "On the application of norms by the courts Of the Criminal Procedure Code of the Russian Federation ").
Upon completion of the consideration of the petition, the judge shall issue a resolution: a) on the selection of a preventive measure in respect of the suspect, the accused; b) on refusal to satisfy the application; c) to extend the period of detention for no more than 72 hours from the date of the court decision in order for the prosecution to provide additional evidence of the justification for the detention. The decision on the extension of the period of detention shall indicate the date and time until which the period of detention of the suspect is extended.
The judge's ruling is subject to immediate execution. Copies of the decision are sent to the person who filed the petition, the prosecutor, the suspect or the accused. The court decision can be appealed to a higher court in cassation within three days from the date of the decision.
Judicial control over pre-trial proceedings on complaints of participants in criminal proceedings
The complaint is filed with the district court at the place of the preliminary investigation. Consideration of complaints in accordance with Art. 125 of the Code of Criminal Procedure takes place in the form of administering justice according to the rules of adversarial proceedings in an open court session, with the exception of cases provided for in Art. 241 of the Criminal Procedure Code.
The subject of judicial control are decisions of an inquiry officer, investigator, head of an investigative body to refuse to initiate a criminal case, to terminate a criminal case, as well as other decisions and actions (inaction) of officials, if they are capable of causing damage to the constitutional rights and freedoms of participants in criminal proceedings or other persons whose rights and legitimate interests are violated, or may impede citizens' access to justice.
Resolution of the Plenum of the Supreme Court of the Russian Federation of 10.02.2009 No. 1 "On the practice of consideration by courts of complaints in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation" in paragraph 2 contains an explanation that to other decisions and actions (inaction) an inquiry officer, investigator and head of an investigative body:
a) capable of causing damage constitutional rights and freedoms of participants in criminal proceedings include decisions to initiate a criminal case against a specific person, to make payments or return property to a rehabilitated person, to refuse to appoint a defender, admit a legal representative, to elect the accused (suspect) of procedural coercion measures, with the exception of bail, house arrest and detention, which are applied by court order;
b) hindering citizens' access to justice , include actions (inaction) or decisions of officials that restrict the rights of citizens to participate in pre-trial proceedings in a criminal case, which create obstacles for further applying for judicial protection of the violated right, for example, refusal to recognize a person as a victim, refusal to accept a crime report, or failure to act when checking these messages, a decision to suspend the preliminary investigation, etc.
Limits of judicial control when verifying the legality and validity of decisions and actions (inaction) of the inquiry officer, investigator and the head of the investigative body are established by the complaint. The judge should not prejudge issues that may subsequently be the subject of legal proceedings on the merits of a criminal case. In particular, he is not entitled to draw conclusions about the factual circumstances of the case, about the assessment of evidence and the qualification of the act.
Subjects of Complaints. A complaint about procedural actions and decisions of an inquiry officer, investigator, head of the investigative body, prosecutor may be brought by: a) any participant in the criminal process (Art. 123 of the Criminal Procedure Code), who believes that his rights or interests were violated in the course of the criminal proceedings; b) another person in the part in which the procedural actions and decisions taken affect his rights, for example, a surety (Article 103 of the CCP), a person to whom a minor is placed under supervision (part 1 of Article 105 of the CCP), an applicant who is refused to initiate a criminal cases (part 5 of Art. 148 of the Criminal Procedure Code), an organization whose funds were seized, a lawyer acting in the interests of the applicant, a legal representative or representative.
The complaint is sent by the applicant to the court at the place of the preliminary investigation directly or through the person whose actions are being appealed. Filing a complaint does not suspend the performance of an investigative action or the execution of a decision to choose a preventive measure, unless the body of inquiry, an inquiry officer, the head of an investigative body, an investigator or a judge find it necessary to do so (part 7 of article 125 of the Criminal Procedure Code).
Time limit for consideration of a complaint - five days from the date of her admission to court. The complaint is considered in open court session by a single federal judge of the district court. Failure to appear at the court session of the duly notified persons does not preclude the consideration of the complaint. If the applicant and other persons who insist on the consideration of the complaint with their participation fail to appear at the court session for valid reasons, the judge shall issue a resolution to postpone the trial and inform them about the date and time of the consideration of the complaint.
At the beginning of the court session, the judge announces which complaint is subject to consideration, explains to the arrived participants their rights and obligations, in particular, to declare objections, petitions, submit documents, get acquainted with the position of other persons, and give explanations on this matter. After that, the applicant is given the right to substantiate his position, then other participants in the process are heard.
Upon completion of the consideration of the complaint, the judge shall issue a resolution to declare the action (decision) of the relevant official unlawful or to dismiss the complaint. Copies of the court decision are sent to the applicant and the prosecutor (part 6 of article 125 of the CCP). When a person is released from custody, a copy of the judge's decision is sent to the place of detention of the person in custody. If a detainee is in the courtroom, he or she is released from custody immediately.
Prosecutor's supervision over the execution of laws at the stages of initiation of a criminal case and preliminary investigation
The exercise of prosecutorial supervision over the exact execution of laws by the preliminary investigation bodies constitutes the main content of the activities of the prosecutor's office in pre-trial criminal proceedings. The supervisory role of the prosecutor in the mechanism of stabilization of criminal procedural relations consists in identifying and eliminating violations committed by the investigator or interrogator during the investigation of criminal cases, in order to protect the rights of participants in criminal proceedings, and form a uniform practice of applying the current legislation.
The essence of prosecutorial supervision at the stages of initiation of a criminal case and preliminary investigation consists in identifying by the prosecutor violations of the rights of citizens when checking allegations of crimes, conducting a preliminary investigation, the prosecutor's request addressed to the head of the investigative body to eliminate violations of federal legislation, cancellation by the prosecutor of illegal decisions of the body of inquiry, the interrogator during the inquiry, and the restoration of the rights of citizens.
Subject of Prosecutor's Supervision- this is a uniform and accurate implementation of the norms of the Criminal Procedure Code, federal laws, departmental legal acts by officials of the preliminary investigation bodies for registration, consideration and resolution of reports of crimes; identification and exposure of persons who have committed crimes; ensuring the rights and legitimate interests of citizens involved in pre-trial proceedings.
Subjects of prosecutor's supervision- The Prosecutor General of the Russian Federation, prosecutors subordinate to him, their deputies, other officials of the prosecution bodies involved in criminal proceedings and endowed with the appropriate powers by the federal law on the prosecutor's office (clause 31 of article 5 of the Criminal Procedure Code).
The rights and obligations (powers) of prosecutors in the exercise of supervision over the activities of the bodies of preliminary investigation and inquiry, the procedure and form of their implementation in the legal literature are referred to as legal means (forms) of prosecutor's supervision... The use of legal means of supervision leads to the emergence of criminal procedural relations between the prosecutor, on the one hand, the bodies of inquiry, preliminary investigation and officials vested with the authority to investigate criminal cases, on the other hand.
The rights and obligations of the prosecutor enshrined in the law constitute his credentials.
The supervisory right of the prosecutor to detect and eliminate the errors of the investigation corresponds to the obligation of the head of the investigative body to consider the request from the prosecutor to eliminate the violation of the federal law, and for the body of inquiry and the head of the inquest unit - to execute the written instructions of the prosecutor.
The Powers of the Prosecutor in the Exercise of Supervision at the Stage of Initiating a Criminal Case
By virtue of Part 2 of Art. 21 of the Code of Criminal Procedure, in each case of detection of signs of a crime, the investigator, the body of inquiry and the interrogating officer are obliged to take the measures provided by law to establish the event of the crime and to expose the person who committed the crime.
According to paragraph 1 of part 2 of Art. 37 of the Code of Criminal Procedure, the prosecutor has the right to check the implementation of federal law when receiving, registering and resolving reports of crimes. By order of the General Prosecutor's Office and the Ministry of Internal Affairs of Russia dated 12.09.2006 No. 80/725 "On strengthening prosecutorial supervision and departmental control over procedural decisions when considering reports of crimes" less often 2 times a week; study the materials of inspections in the production of employees of the bodies of inquiry and give written instructions to be followed (clause 4.4). By order of the Prosecutor General of 10.09.2007 No. 140 "On the organization of prosecutorial supervision over the implementation of laws when receiving, registering and resolving reports on crimes in the bodies of inquiry and preliminary investigation" corruption, organized crime, terrorism and extremism; illegal circulation of weapons, explosives, explosive devices, narcotic drugs and psychotropic substances; about criminal encroachments on budget funds; on crimes in the field of ecology, extraction of natural resources and their export abroad (clause 1.4).
If a crime is discovered by a prosecutor, then he decides on the transfer of materials under investigation to the body of inquiry or preliminary investigation. The transfer of materials of the prosecutor's check is carried out on the basis of the decision of the prosecutor.
A crime report disseminated in the media is checked by the body of inquiry on behalf of the prosecutor. The editorial board, the editor-in-chief of the mass media are obliged, at the request of the prosecutor, to transfer to the body of inquiry the documents and materials they have, confirming the report of the crime, as well as data on the person who provided the information, except for cases when this person has set a condition on keeping the source of information secret ... In the case of documentary checks or audits when checking a crime report, the prosecutor has the right, at the request of the inquiry officer, to extend the verification period to 30 days (part 3 of article 223 of the Criminal Procedure Code).
At the end of the preliminary check, the body of inquiry, the investigator, the head of the investigative body, the investigator, if there is a reason and grounds, initiate a criminal case (part 1 of article 146 of the CCP) and a copy of the decision is sent to the prosecutor. The consent of the prosecutor to initiate a criminal case is not required. The exception is cases of initiation of criminal cases of private and private-public prosecution, when a person is in a dependent state or, for other reasons, cannot protect his rights and legitimate interests. In these cases, a criminal case is initiated by the inquiry officer with the consent of the prosecutor (part 4 of article 20 of the Criminal Procedure Code). The head of the body of inquiry initiates a public-private prosecution case in the above cases without the consent of the prosecutor (part 2 of article 147 of the Criminal Procedure Code).
In the event of a refusal to initiate a criminal case, a copy of the decision by the investigator or inquiry officer shall be sent to the prosecutor within 24 hours from the moment of its issuance. By order of the General Prosecutor's Office and the Ministry of Internal Affairs of Russia dated 12.09.2006 No. 80/725, the prosecutor is obliged to check the legality of decisions on refusal to initiate a criminal case within five days from the moment of their receipt by the prosecutor's office (clause 4.3).
Having recognized the decision of the investigator, the head of the investigative body on the refusal to initiate a criminal case as illegal, the prosecutor issues a resolution and, together with the materials of the preliminary check, sends it to the head of the investigative body to resolve the issue of canceling the illegal resolution of the investigator. An unlawful decision of the body of inquiry (inquirer) on refusal to initiate a criminal case shall be canceled by the prosecutor independently. The decision made by the prosecutor and the materials of the preliminary check are sent to the head of the body (subdivision) of inquiry for execution.
Powers of the Prosecutor in the Exercise of Supervision at the Stage of Preliminary Investigation
The prosecutor at this stage of the criminal process is empowered to supervise the investigation of cases in the form of inquiry and preliminary investigation. Supervision over the legality of the activities of the preliminary investigation bodies is carried out regardless of their departmental affiliation. Prosecutor's supervision has a procedural form and is expressed in the control over the exact and uniform execution of laws by the bodies of inquiry, the interrogator, the investigator.
If a violation of the norms of law is revealed by the body of inquiry (interrogator), the law obliges the prosecutor to personally intervene in the production of the inquiry, cancel the illegal decision and correct the mistake. Appealing the instructions of the supervising prosecutor to a higher-ranking prosecutor during an inquiry shall not suspend their execution.
The supervision of the preliminary investigation in relation to the inquiry is limited. If, during the conduct of the inquiry, the prosecutor has the right to identify and cancel any illegal decisions of the body of inquiry and the inquiry officer, then during the conduct of the preliminary investigation he does not have such powers. While supervising the preliminary investigation, the prosecutor does not have the right to give instructions to the investigator, direct the course of the investigation, cancel the illegal decisions of the investigator, give consent to the termination of the criminal case, etc.
The powers of the prosecutor(Art. 37 of the CPC), when exercising supervision at the stage of preliminary investigation, are implemented in the following forms:
instructions to the inquirer about a) the direction of the investigation, about the election, change or cancellation of a preventive measure, the qualification of a crime, the performance of certain investigative actions, the search for persons who have committed crimes, other procedural actions;
giving consent to the inquiry officer to initiate before the court b) a petition for the election, cancellation or change of a preventive measure or for the production of another procedural action, which is allowed on the basis of a court decision;
cancellation of unlawful and c) unjustified decisions of the inquirer, the subordinate prosecutor;
consideration of the objections submitted by the head of the investigative body d) the objections of the investigator about disagreement with the requirements of the prosecutor;
dismissal of the interrogator from the preliminary investigation e) if he has committed significant violations of the law;
permission of recusal, self-recusal of the interrogator; e)
referral of a criminal case under investigation from one g) investigation body to another;
seizure of the criminal case from h) any body of preliminary investigation and transferring it to the investigator of the Investigative Committee under the Prosecutor's Office of the Russian Federation;
approval of the decision of the inquirer on i) termination of criminal proceedings, indictment, indictment;
return of the criminal case to the inquirer, j) the investigator with his written instructions on the conduct of additional investigation, on changing the scope of the charge, qualifying the actions of the accused, re-drafting the indictment or indictment;
k) requirements from the bodies of inquiry and investigative bodies to eliminate violations of federal legislation committed during the inquiry or preliminary investigation.
Exercising supervision over the legality of pre-trial proceedings, the prosecutor especially focuses on the decisions of the inquiry officer to carry out investigative actions that limit the constitutional rights of citizens, the application of preventive measures related to the isolation of the suspect from society, the posting of bail, and the completion of the preliminary investigation.
When considering a petition from an investigator for the application of a preventive measure in the form of placing a suspect (accused) in custody (Article 108 of the CCP), house arrest (Article 107 of the CCP), bail (Article 106 of the Criminal Procedure Code), suspension of the accused from office (Art. 114 of the Code of Criminal Procedure), the prosecutor has the right to familiarize himself with all the materials of the investigation and study the evidence collected in the case.
The prosecutor pays special attention to checking the decisions of the preliminary investigation bodies that conclude the investigation.
After the completion of the preliminary investigation and the receipt of the criminal case by the prosecutor's office for approval of the indictment, the prosecutor focuses on the completeness, comprehensiveness, objectivity of the investigation. In case of disagreement with the completeness of the preliminary investigation, the volume of the accusation, the qualification of the actions of the accused or the re-drafting of the indictment (paragraph 2 of part 1 of article 221 of the CCP), the prosecutor has the right, with his written instructions, to return the criminal case to the investigator for additional investigation. The decision of the prosecutor to return the criminal case may be appealed against to a higher prosecutor. An appeal against the decision of the supervising prosecutor to return the criminal case to a higher prosecutor is allowed with the consent of the head of the investigative body and entails the suspension of its execution (parts 4, 5, article 221 of the Criminal Procedure Code).
When exercising supervision, the prosecutor has the right to withdraw any criminal case from the investigative subdivision of the federal security service, the bodies for control over the circulation of narcotic drugs and psychotropic substances, the internal affairs bodies, and on the basis of clause 12, part 2 of Art. 37 of the Code of Criminal Procedure to transfer it for further investigation to the investigator of the Investigative Committee under the Prosecutor's Office of the Russian Federation.
To exercise the supervisory powers of the prosecutor in pre-trial proceedings, legislation provides for acts that are a form of expression of these powers.
Prosecutor's supervision acts- these are protests against legal acts, decisions, instructions, demands, representations, warnings about the inadmissibility of violations of the law, contrary to the law.
The normative basis for acts of prosecutorial supervision is contained in Art. 23-25 1, 28 of the Law on the Prosecutor's Office and Part 2 of Art. 37 of the Criminal Procedure Code.
Acts of prosecutorial supervision in criminal proceedings on the merits of the powers exercised presuppose their written expression. They are always individual, addressed to officials of the bodies of inquiry, preliminary investigation, and other participants in the criminal process. The most important requirement for the content of the acts of prosecutorial supervision is the legal basis and accurate, corresponding to the powers of the prosecutor, the wording of his proposals.
In addition to overseeing the preliminary investigation bodies, the prosecutor, on behalf of the state, exercises leadership in the conduct of an inquiry. criminal prosecution(part 1 of article 37 of the Criminal Procedure Code).
The prosecutor's supervision over pre-trial proceedings and the management of the criminal prosecution of persons suspected of committing crimes during the conduct of an inquiry are united by a common purpose. The prosecutor, exercising supervision over the precise and uniform execution of laws by the bodies of inquiry, at the same time exercises his powers to direct the criminal prosecution.
Departmental procedural control during the production of inquiry and preliminary investigation
This is the legal activity of the head of the inquiry body, the head of the inquiry unit, the head of the investigative body for the implementation of procedural guidance (control) over the completeness and quality of the investigation of criminal cases in the proceedings of their subordinate interrogators and investigators, ensuring the fundamental rights and freedoms of participants in criminal proceedings.
All activities of the head of the body (subdivision) of inquiry, the head of the investigative body consist of taking actions and making decisions. It is carried out in the form of procedural and organizational control.
Procedural control is based on the criminal procedural powers of the head of the inquiry body, the head of the inquiry division, the head of the investigative body and is intended to regulate relations between the head of the inquiry body, the head of the inquiry division, the interrogator, as well as the head of the investigative body and the investigator in the investigation of criminal cases.
Organizational control is based on the administrative powers of the heads of the bodies of inquiry, subdivisions of inquiry, preliminary investigation and is carried out in the course of administrative and official activities on the principle of subordination of the inquiry officer to the head of the body of inquiry or the head of the subdivision of inquiry, and the investigator to the head of the investigative body. Each legal organizational order (instruction, order) of the head of the body (subdivision) of inquiry or the head of the investigative body is obligatory for execution, respectively, by the inquiry officer or the investigator.
Departmental procedural control during the production of an inquiry
The system of inquiry bodies of Russia is represented by the internal affairs bodies, other executive bodies having the authority to carry out operational-search activities, the state fire supervision bodies of the Federal Fire Service, the Federal Bailiff Service bodies, as well as officials vested with the powers of the inquiry bodies: the commanders of military units , heads of military institutions and garrisons, bodies of the penal system, etc. (Articles 40, 157 of the Criminal Procedure Code). The bodies of inquiry are endowed with broad powers to carry out inquiries and urgent investigative actions.
The procedural powers over the timeliness of the actions of the inquiry officer for the production of urgent investigative actions and inquiries in the internal affairs bodies are vested in the chiefs of the internal affairs bodies, the criminal police, the public security police, and the inquiry units.
Head of the body of inquiry is an official of the body of inquiry (including the deputy head of the body of inquiry), authorized to give instructions on the conduct of inquiry and urgent investigative actions, as well as to exercise other powers stipulated by law (paragraph 17 of article 5 of the Criminal Procedure Code).
Procedural powers of the head of the body of inquiry contained in Art. 41, 144, 157, 225 of the Code of Criminal Procedure and are implemented in the investigation of criminal cases in the following forms:
Instructions to the inquiry officer to check reports of crimes (clause 17 of article 5 of the Criminal Procedure Code);
Consent to extend, at the request of the inquirer, the period for verifying a crime report from three to 10 days (part 3 of article 144 of the Criminal Procedure Code);
Instructions to the inquiry officer to carry out urgent investigative actions (Article 157 of the Criminal Procedure Code);
Instructions to the inquiry officer to conduct an inquiry (clause 17 of article 5 of the Criminal Procedure Code) in cases where the preliminary investigation is optional (it is not allowed to impose these powers on the person who conducted or is conducting operational-search measures in this case - part 2 of article 41 Criminal Procedure Code);
Instructions to the inquirer on the conduct of the investigation of the criminal case (part 4 of article 41 of the Criminal Procedure Code);
Consideration of the complaint (objection) of the inquiry officer against the instructions of the head of the inquiry unit (part 4 of article 40 1 of the Criminal Procedure Code);
Statement of indictment (part 4 of article 225 of the CCP).
Head of the Inquiry Division is an official who heads the relevant specialized investigation unit, which carries out preliminary investigation in the form of an inquiry, as well as his deputy (clause 17 1, article 5 of the CCP).
Procedural powers of the head of the inquiry unit contained in Art. 40 1 of the Criminal Procedure Code and are implemented in the investigation of criminal cases in the following forms:
Checks of the materials of the criminal case being investigated by the inquiry officer;
Instructions to the inquirer about the direction of the investigation, the performance of certain investigative actions, the election of a preventive measure against the suspect, the scope of the accusation, the qualification of the crime;
Seizure of the criminal case from the interrogating officer and transferring it to another interrogating officer;
Cancellation of unfounded decisions of the inquiry officer to suspend the criminal case;
Submitting to the prosecutor a petition to cancel the illegal or unjustified decisions of the inquiry officer.
Departmental procedural control during the preliminary investigation
The system of preliminary investigation bodies is represented by the Investigative Committee under the Prosecutor's Office of the Russian Federation, the Investigative Committee under the Ministry of Internal Affairs of Russia, other investigative units of the system of the Ministry of Internal Affairs, the bodies of preliminary investigation to control the circulation of narcotic drugs and psychotropic substances, and the investigative bodies of the federal security service. The structure of the preliminary investigation bodies consists of divisions, divisions, directorates, and a committee.
Departmental procedural control the activities of investigators are carried out by the head who heads the relevant investigative unit, or his deputy (paragraph 38 1 of article 5 of the Criminal Procedure Code). Head of the investigative body may be: the head of the investigation department, the head of the investigation department, the head of the investigative department, the Chairman of the Investigative Committee, as well as their deputies, if such positions are available in the staffing table of the investigative unit.
In the Investigative Committee under the Prosecutor's Office of the Russian Federation, the powers of the head of the investigative body are exercised by the Chairman of the Investigative Committee, the head of the Main Investigative Directorate, the heads of the investigation departments for the constituent entities of the Russian Federation, the investigative departments for the regions, cities and their deputies, as well as the heads of the investigative bodies of the corresponding federal executive bodies (with appropriate federal authorities), their territorial bodies for the constituent entities of the Russian Federation, districts, cities, their deputies, other heads of investigative bodies and their deputies (part 5 of article 39 of the Criminal Procedure Code).
Procedural powers of the head of the investigative body for the implementation of departmental control established by Art. 39, 123, 144, 162, 163 and other norms of the Criminal Procedure Code. The powers granted by the law to the head of the investigative body are implemented in the following forms:
Instructions for the production of a preliminary investigation to the investigator or several investigators, the creation and change of an investigative group;
Cancellation of illegal or unfounded decisions of the investigator;
Instructions on the direction of the investigation, the performance of certain investigative actions, the involvement of a person as an accused, on the election of a preventive measure against the suspect (accused), on the qualification of the crime and the scope of the charge, additional investigation;
Consent to the initiation of a petition before the court for the election, extension, cancellation or change of a preventive measure, other action that is allowed on the basis of a court decision, appeal against the prosecutor's decision to return the criminal case for additional investigation;
Extending, at the request of the investigator, the period for considering a crime report up to 10 days, during documentary checks or audits up to 30 days; prolongation of the preliminary investigation period up to three months, etc .;
Permission for challenge, self-challenge of the investigator;
Approval of the decision to terminate the proceedings in the cases provided for by law;
Consideration of the prosecutor's demands to eliminate violations of federal law committed during the preliminary investigation.
The scope of the procedural powers of the heads of the investigative bodies of the preliminary investigation in the system of the Ministry of Internal Affairs of Russia is established by order of the Investigative Committee under the Ministry of Internal Affairs of Russia dated December 17, 2007 No. 38 "On the procedural powers of the heads of the investigative bodies", and in the system of the prosecution bodies - by the order of the Investigative Committee under the Prosecutor's Office of the Russian Federation of 12/18/2007 No. 43 "On establishing the scope and limits of procedural powers of the heads of investigative bodies (investigative units) of the Investigative Committee system under the Prosecutor's Office of the Russian Federation."
The importance of departmental procedural control over the activities of the bodies of preliminary investigation and inquiry is to ensure the quality of the investigation and protection of the rights of citizens involved in pre-trial proceedings. The head of the investigative body, the head of the body (subdivision) of inquiry, upon detection of incompleteness of the investigation, violation of the rights and freedoms of citizens, are obliged to take the necessary measures to eliminate the revealed shortcomings of the investigation and restore the violated rights of the participants in the process.
Practical and seminar lessons - 6 hours.
Lesson 1.
Questions to be worked out.
Lesson 2.
Questions to be worked out.
Solving problems. Comparative analysis of regulations. Drawing up an outline plan.
Lesson 3.
Questions to be worked out.
Solving problems. Comparative analysis of regulations. Drawing up an outline plan.
Student independent work management.
consultations on the development of the basic didactic units of this module, consultation on solving problems, consultation on the results of work with cases, consultation on the results of intermediate control.
Module 3. Litigation
Lecture lesson - 2 hours.
Lecture 9. Appointment and preparation for the court session. Trial. General Conditions of Proceedings. Special order of proceedings in the court of first instance. Features of proceedings before a magistrate and in a court with the participation of a jury
Academic lecture.
Lecture questions:
Appointment and preparation for the court session.
Legal proceedings. General Conditions of Proceedings.
Special order of proceedings in the court of first instance. Features of the proceedings before the magistrate and in court with the participation of jurors.
Literature: Criminal procedure: textbook for universities / ed. B.B. Bulatova, A.M. Baranova. - 2nd ed., Perarab. and add. - M.: Yurayt Publishing House; Higher education, 2010. - 606 p. - (Fundamentals of Sciences).
TV. Trubnikova
JUDICIAL CONTROL AT THE PRE-TRIAL STAGES OF COURT PROCEEDINGS: LEGAL NATURE AND PLACE IN THE CRIMINAL PROCEDURE SYSTEM
The article proposes a classification of the forms of judicial control and activities at the pre-trial stages of the criminal process. The legal nature of the proceedings for the implementation of judicial control at the pre-trial stages and the characteristics of the substantive legal relations that underlie them, the functional orientation of judicial activity in the course of the implementation of judicial control are considered.
The institution of judicial control over the actions and decisions of the investigating bodies and prosecutors is not a completely new institution for the criminal process of the Russian Federation. By the time the Criminal Procedure Code of the RSFSR expired, the criminal procedure legislation of Russia knew several proceedings, which were varieties of forms of judicial control over pre-trial proceedings. These included:
Proceedings on complaints about the use of detention as a preventive measure and the extension of the period of detention;
Proceedings on complaints against actions and decisions of the body of inquiry, investigator or prosecutor related to the search, seizure of property, suspension of criminal proceedings and extension of the preliminary investigation period. This proceeding was not regulated independently in the criminal procedural legislation, it appeared in accordance with Resolution No. 5-P of the Constitutional Court of March 23, 1999. of the RSFSR Code in connection with the complaints of citizens V.K. Borisova, B.A. Kekhman, V.I. Monastyrsky, D.I. Fuflygin and the limited liability company “Monokom” ”and was carried out in a procedural manner similar to that provided by the legislator for considering complaints about arrest and prolongation of detention.
The author of this article has already expressed his opinion on the legal nature of these proceedings, their place in the system of criminal procedure. This problem has also been considered by other process scholars. However, at present, in connection with the introduction of the Criminal Procedure Code of the Russian Federation, new forms of judicial control over the pre-trial stages of proceedings have appeared in the criminal process of Russia, and judicial control over the legality and justification of arrest, prolongation of detention, and the conduct of a search has acquired a completely new form, method implementation. Therefore, now the question of the essence, legal nature of various forms of judicial control over the actions, decisions of the investigation bodies and the prosecutor, judicial protection of constitutional rights and freedoms of citizens at the pre-trial stages of the process acquires a new meaning and becomes relevant again.
The powers of the court in the field of monitoring activities at the pre-trial stages of the process are set out in Part 2-3 of Art. 29, art. 125, part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation. Unlike the Code of Criminal Procedure of the RSFSR, according to which the court could start checking the legality and validity
actions and decisions of the investigating body or the prosecutor only in the presence of a complaint from an interested person (which automatically determined only the subsequent nature of such an inspection), the current Criminal Procedure Code of the Russian Federation provides for the possibility of judicial control over the pre-trial stage of proceedings in various forms.
These forms lend themselves to classification on various grounds. So N.N. Kovtun proposed several grounds and several options for classifying the forms of implementation of procedural judicial control. I believe that, depending on the moment of its implementation, judicial control can be divided into the previous one (part 2 of article 29 of the Criminal Procedure Code of the Russian Federation) and the subsequent one (article 125 and part 5 of article 165 of the Code of Criminal Procedure of the Russian Federation). Depending on the degree of legal freedom of the participants in the proceedings and other citizens in deciding the issue of resorting to judicial control, it seems that statutory forms of judicial control can be distinguished (for example, Articles 104, 108, 109, Clause 3, Part 2, Article 29 of the Code of Criminal Procedure RF), its dispositive forms (in cases where the initiative to go to court comes from a participant in the proceedings, for example, in the case of filing a complaint against an action (inaction) and a decision of a preliminary investigation body or a prosecutor - Art.125 of the Code of Criminal Procedure of the Russian Federation), as well as partially dispositive forms of judicial control
Among the statutory forms of judicial control are those, the appeal to which is not a right, but an obligation of the participants in the process. So, only a court can choose detention as a preventive measure, therefore, the selection of this preventive measure is impossible without a preliminary judicial review. For the concept of the statutory form of control, see.
In the author's opinion, it is possible to refer to partially dispositive forms of judicial control those cases when the very appeal to the judicial procedure is obligatory, but the subject of the criminal process (investigator, interrogator) can, depending on the situation, choose whether to apply to the previous or subsequent judicial control ( Part 2 and 5 of Art.165 of the Code of Criminal Procedure of the Russian Federation).
The author considers it possible to offer another classification of the forms of judicial control - based on the possibility of a legal dispute between the parties. From the point of view of this classification basis, all forms of judicial control over the pre-trial stages of the criminal process can be divided into adversarial (certainly occurring in the presence of a dispute between the parties, for example, in the case of filing a complaint about actions, decisions of the investigator), optional adversarial (these include those of them that, although they do not require the manifestation of will for their beginning, the desire of one of the parties to
appeal to the court for the resolution of the dispute, but suggest the possibility of conflict, legal dispute and provide the parties with the opportunity to defend their positions - Art. 107-109 of the Code of Criminal Procedure of the Russian Federation) and, finally, forms of control that exclude the possibility of the existence of a legal dispute (Article 165 of the Code of Criminal Procedure of the Russian Federation).
In the latter case, only representatives of the prosecution (prosecutor, investigator ) but not defense participants or stakeholders. Moreover, in a number of situations, the latter in a number of situations generally cannot and should not know about the consideration of the corresponding petition of the investigator (for example, in the case of consideration of a petition for control and recording of telephone and other conversations or a petition for a search, seizure of postal and telegraphic items, etc. .NS.). I believe it is possible to agree with N.N. Kovtun is that in these and similar cases there is not an obvious, but a potential conflict between the participants. At the same time, such a potential conflict potential, which exists in conditions when a person does not know that the court is considering the issue of limiting his constitutional rights and freedoms, and does not have the opportunity to express arguments in his favor, is far from tantamount to the existence of a legal dispute. between the parties to such a conflict.
In the situation under consideration, the court performs a function different from its role in adversarial proceedings, which presupposes the existence of two opposite parties in the process, having equal opportunities to defend their position and imposing on the court the duties of an arbitrator authorized to resolve the dispute, but not to take on the task of defending interests one of the parties. In the case when the court decides the issue of the possibility of granting permission to carry out an investigative action or the adoption of a decision restricting constitutional human rights and freedoms, there is no subject opposing the side of the prosecution seeking the consent of the court. In this case, the duty to take into account all noteworthy circumstances, the interests of the person whose rights must be limited in the opinion of the prosecution, is imperatively assigned to the court. The judicial authorities, as in the case of the implementation of adversarial proceedings, act in order to ensure the rights and freedoms of a person and a citizen, however, the specific way of realizing this goal, which is expressed in the immediate tasks, the direction of the court's activities in the course of its decision, is fundamentally different from that method. and the direction of the court's activities, which are established to resolve a legal dispute.
Taking into account the foregoing, it seems to be correct the point of view of those authors who emphasize the essential nature of the differences between the activities of the court on complaints against illegal, unfounded decisions of the investigating bodies or the prosecutor, on resolving the issue of 82
the possibility of choosing detention or house arrest as a preventive measure, or extending the period of detention, and its activities. In the other. In other cases, the implementation of judicial control at the pre-trial stages of the criminal process.
The author also considers it possible to partially agree with the point of view of those scholars who consider judicial control as an independent form of exercising judicial power on an equal basis with justice. Partially, since in some cases of the exercise of judicial control, it essentially coincides with the administration of justice, it is a kind, a way of administering justice, i.e. court activities to resolve a legal dispute, carried out on an adversarial basis (consideration of complaints against actions, decisions of the preliminary investigation body, prosecutor), in other cases (for example, when giving permission to control and record telephone or other without obtaining prior judicial permission) the activity of the court is a form of the exercise of judicial power, different from justice. This concept of justice was formulated by the author taking into account the position of Yu.K. Yaki-movich, I. Ya. Foinitsky and other authors, as well as on the basis of the practice of interpretation by the European Court of Human Rights of the provisions of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
It should also be mentioned that the author does not strictly associate the presence or absence of a legal dispute in a particular case with the possibility (impossibility) of referring the procedure for its consideration to the concept of justice. Any forms of exercising judicial power that provide for the potential for a dispute about law, if (important!) They contain an adversarial procedure for resolving such a dispute, can be considered as justice. Thus, in a specific case, the accused and his defense counsel may be indifferent to the election as a preventive measure, detention or the extension of the period of detention, or, for example, even actively support the decision to choose house arrest as a preventive measure. At the same time, the prosecution can initiate the cancellation of a preventive measure in the form of detention or agree with the possibility of its cancellation (change), if it is no longer necessary. All this, however, does not exclude the attribution of the proceedings on the consideration of the relevant questions to the number of proceedings for the administration of justice, since the procedure (procedure) provided for by the law allows interested parties to bring their position and / or their arguments to the court, if they have a corresponding desire. ...
If the function of the court in resolving a criminal case under the conditions of the adversarial principle is usually called the function of resolving the dispute on the merits or the function of administering justice, then the function (main focus of the activity) of the court in exercising forms of judicial control that are not methods of administering justice should have a different name, since, as we have already shown, it differs significantly in its internal content, filling from the direction of the court's actions
when resolving a criminal case or considering a complaint about the actions of an investigator. Since in this situation the court must ensure the protection of the rights of a person who is unable to independently express arguments in his favor, the court in this case must take the position of not an impartial arbitrator, but an active defender of his legitimate interests. We believe that in this situation, the activity of the court can be defined as aimed at the implementation of the law enforcement function. For the concept of a law enforcement function, see.
Another question on which I would like to express my opinion concerns the legal nature of proceedings aimed at the implementation of judicial control at the pre-trial stages of the process. The author has previously expressed his point of view regarding the mixed state of the proceedings on the consideration by the court of complaints of arrest or prolongation of detention [1, 16, 17]. In these works, attention was drawn, in particular, to the fact that the task of this production was to resolve a dispute that arose between persons vested with powers (investigator, prosecutor), on the one hand, and a citizen who considers his rights violated by the decision of these persons, on the other ... In its course, the question was to be resolved as to whether these persons had exceeded their powers (that is, whether their decision was legal and justified). On the other hand, she substantiated the need to resolve this dispute by criminal procedural means, emphasized the fact that it is considered on the basis of the provisions of the criminal procedural law, which allows us to conclude that this is a special criminal procedural proceeding. At the moment, I would like to add to this reasoning an indication of another
one circumstance already noted by other authors, namely: the subject of proceedings for the exercise of judicial control is always constitutional human rights and freedoms (we do not consider it possible to agree with the position of those authors who believe that in the manner prescribed by the Code of Criminal Procedure of the Russian Federation for the consideration and resolution of complaints against the actions of the preliminary investigation bodies, the prosecutor, not only complaints related to a possible violation of constitutional rights and freedoms of persons during the pre-trial stages of the criminal process, but also complaints from participants in criminal proceedings regarding violation of their other rights should be considered.
Taking into account the foregoing, without repeating the arguments expressed by the author earlier, as well as the forms of judicial control provided for by the Code of Criminal Procedure of the Russian Federation, we believe that:
1) the material and legal basis of all proceedings for exercising judicial control over the actions, decisions of the preliminary investigation bodies, the prosecutor at the pre-trial stages of the process are the norms of the Constitution of the Russian Federation, which provide for human rights and freedoms (and the possibility of their limitation in the course of criminal proceedings).
2) the importance of these rights and freedoms, the need for a quick and effective response to their violation, dictate the need to apply for the protection of these rights and freedoms in a number of cases the procedure used by the criminal procedure law, therefore, the placement of these proceedings in the Code of Criminal Procedure of the Russian Federation is quite acceptable and rational.
Taking this into account, all forms of judicial control over the actions, decisions of the preliminary investigation bodies, the prosecutor at the pre-trial stages of the process are special criminal procedural proceedings, that is, proceedings that are not aimed at establishing, changing the criminal law relationship
LITERATURE
I. Yakimovich Yu K. Lensky A.V., Trubnikova TV Differentiation of criminal procedure Edition 2, supplemented and revised Tomsk Publishing House of TSU, 2001. pp. 70-74
2 Solodiloy A.V. Judicial control in the system of criminal procedure in Russia Tomsk TUSUR, 2000. P. 19-42
3 Khaliulin A Judicial control and prosecutor's supervision over the legality of the investigation: boundaries and opportunities // Criminal law. 2000 No. 8, p. 22.
4. Lazareva V. A. Theory and practice of judicial protection in the criminal process Samara, 2000. P 37-58.
5 Kovtun NN Judicial control in criminal proceedings in Russia. Nizhny Novgorod Nizhniy Novgorod Law Academy, 2002
6. Kolokolov NA Judicial control at the stage of preliminary investigation reality, prospects // State and Law 1998 M "11. S. 31-39.
7 Chebzhemov Z.T. The role of the court in ensuring the rights and freedoms of citizens in pre-trial proceedings but the Criminal Procedure Code of the Russian Federation Avtoref lis kand juridical sciences M., 2003.
8. Maslennikova LN Judicial control over the legality of the procedural activities of the body of inquiry and preliminary investigation M., 1994. S. 6.
9. Tsikhotsky AV, Chernenko AK Judicial power in the conditions of the new Constitution of the Russian Federation Novosibirsk, 1885 P 152.
10. Sheifer S. A. Yablokov V. A. The concept of the judiciary and its functions // Problems of judicial reform in Russia, history and modernity. Sat. works. Samara, 1999.S. 198
11. Foinitskiy I.Ya. Criminal Justice Course. T. 1.SPb: Alfa, 1996.S. 8-9.
12 Yakimovich Yu.K. The concept of justice and the principles of its definition // Selected articles (1985-1996) Tomsk: Publishing house of TSU. 1997.S. 25.
13. Decisions of the ECtHR "Delta v. France", "Vidal v. Belgium", "Ludi v. Switzerland" And European Judicial Journal M., 2001. P.20-24
14 Yurkevich NA. Implementation of the law-providing function at the stage of bringing the accused to trial. Tomsk: TSU Publishing House, 1991 pp. 12-43.
15. Martynchik E.G., Radkov V.P., Yurchenko V.E. Protection of the rights and legal interests of the individual in legal proceedings Chisinau: Shtnnitsa, 1981. P. 34.
16. Trubnikov TV. Theoretical foundations of simplified court proceedings Tomsk: TSU Publishing House, 1999. pp. 88-90.
17. Trubnikova TV Types of special proceedings in the criminal process of Russia // Legal problems of strengthening Russian statehood Part 6. Tomsk TSU Publishing House, 2000. P. 133-138
18. Sviridov MK Correlation between the functions of resolving criminal cases and judicial control in the activities of the court // Legal problems of strengthening Russian statehood. 7. Tomsk: Publishing house of TSU. 2001, S. 3-6.
19. Bagautdinov F. State and prospects of judicial control // Russian justice 2000 № 3. С 24-26
20 Demidov I. F. The problem of human rights in the Russian criminal process (Conceptual provisions) M., 1996. S, 75-79.
The article was presented by the Department of Criminal Procedure of the Law Institute of Tomsk State University, entered the scientific editorial office "Legal Sciences" on April 25, 2003.
The concept of prosecutor's supervision is closely related to the concept of "legality", since legality is ensured through the implementation of supervision by the prosecutor's office over the observance of current legislation in various spheres of society and the state. The essence of legality lies in the strict and unswerving observance and execution by all subjects of the current legislation. Prosecutorial supervision ensures this unswerving and strict adherence to and enforcement of the law. Throughout the territory of Russia, the unity of legality, its equal understanding and implementation is necessary, and the only organ of the state capable of ensuring this unity is the prosecutor's office, for which it was created, and this is its main task.
Guarantees of compliance with the principle of legality in criminal prosecution activities presuppose the existence of functionally different in content, but common in terms of the purpose of prosecutorial supervision, judicial and departmental control.
Basically, this system is multistage, multi-subject, it is characterized by the specifics of the tasks solved in the order of prosecutor's supervision, judicial and departmental control, and, accordingly, a variety of procedural forms and methods of their solution. At the same time, in legislative and law enforcement practice, a clear distinction has not yet been made between the concepts of "supervision" and "control", which are close in their semantic meaning, but still not synonyms and have certain differences.
Departmental control is customary to call the activities of the head of the investigative body, the head of the inquiry body for organizational and procedural control and management of subordinate investigators, interrogators. Some authors believe that most of their powers go beyond procedural control and can be recognized, in essence, as procedural guidance of subordinate employees.
Judicial control, carried out at the stages of initiating a criminal case and preliminary investigation, being, in essence, an additional function of the judicial system, designed, according to the Constitution of the Russian Federation, to administer justice, some authors define as a criminal procedural function of the court to verify the legality and validity of certain decisions , others - as the implementation by the court of a system of verification measures, which are of a preventive and legal nature, in order to ensure the legality and validity of decisions and actions of bodies of inquiry and preliminary investigation that restrict constitutional or other rights and freedoms of citizens.
The increase in the number of violations of the law detected and eliminated by prosecutors during the supervision of the procedural activities of the preliminary investigation bodies, as well as the frequency of satisfaction of complaints received by the prosecutors indicate both the intensification of the supervisory activities of the latter and the insufficient effectiveness of departmental mechanisms for monitoring the procedural activities, primarily of investigators and interrogators. ...
The results of prosecutorial inspections of materials on the refusal to initiate a criminal case, as well as criminal cases in which violations were revealed, show that violations, among other things, were facilitated by deficiencies in departmental control exercised by the heads of the investigative bodies and the heads of the bodies of inquiry. First of all, this refers to ensuring the constitutional rights of citizens involved in criminal proceedings.
It should be noted that prosecutorial supervision, departmental control over the activities to resolve reports of crimes actually perform a common role for the entire system of criminal justice bodies, which is to ensure the legality and validity of actions and procedural decisions taken on reports of crimes.
Some authors divide departmental control into two forms: procedural and organizational. Organizational control in relation to an inquiry officer, an inquiry body, an investigator, a head of an investigative body obliged to accept and verify a crime report is carried out in administrative and managerial forms determined by sectoral federal laws, departmental organizational and administrative documents and instructions on the organization of work, and consists in organizational - methodological guidance, verification of compliance with the procedure for resolving reports of crimes, taking measures of influence against violators, giving instructions, assigning responsibilities, etc. Procedural control is implemented in the procedural powers of these officials, determined by criminal procedural legislation.
It should be noted that, in essence, in relation to the head of the inquiry body and the head of the investigative body, the criminal procedure law does not detail the means of exercising procedural control, which "dilutes" its appointment and reduces the responsibility of these officials both for the result and directly for a process for resolving crime reports.
In the current situation, the effectiveness of departmental control in such a parameter as the timely detection of violations of the law in the activities of investigators and interrogators to resolve reports of crimes seems to be low.
A survey of investigators and interrogators on this issue indicates that most of them (and prosecutors completely) consider departmental control at the stage of initiation of a criminal case less effective than prosecutorial supervision. Moreover, it should be said that there is a practice of "direct contact" - "prosecutor - investigator" or "prosecutor - interrogator", when the heads of the bodies of inquiry and the heads of the investigative divisions have due participation in the implementation of the functions assigned to them to exercise procedural control over the activities of investigators and they do not carry out investigators for the resolution of reports of crimes, materials on reports of crimes and the legality of procedural decisions are not checked, or they refer to this work formally.
Complaints about actions (inaction) and procedural decisions of investigators and interrogators at the stage of initiating a criminal case, whose actions are being appealed, coming to the heads of the investigative bodies and the heads of the bodies of inquiry, are often resolved by the latter; reporting the crime.
The analysis shows that direct, more effective control over the procedural activities of investigators and interrogators when resolving reports of crimes, as well as during the preliminary investigation, can be effectively carried out by the heads of the investigative bodies and the heads of the inquiry bodies, the legal status of which will be regulated in detail by the criminal law. -procedural law. Thus, it is advisable to supplement Art. 39 of the Code of Criminal Procedure of the Russian Federation with the provisions on the right of the head of the investigative body to monitor the legality and timeliness of the investigator's permission to report crimes, to give instructions to the investigator in connection with the resolution of reports of crimes, to remove the investigator from resolving reports of crimes. Additions similar in content should be made to Art. 40.1 of the CCP.
The legislative consolidation of these rights does not mean mixing the functions of departmental control and prosecutorial supervision. With the existing legislative structure of the CPC, the annual significant number of procedural decisions canceled by prosecutors on reports of crimes, complaints about actions (inaction) and procedural decisions of investigators and interrogators received by prosecutors suggests that prosecutorial supervision over the fulfillment of the requirements of the federal law during admission, registration and the resolution of reports of crimes is a more complete and really effective guarantee of ensuring the rule of law at the stage of initiation of a criminal case. Prosecutors significantly restrain the growth in the number of violations of the law at the initial stage of the criminal process.
Supervising the implementation of laws in the field of criminal registration of crimes, the prosecutor has a significantly greater scope of procedural powers than officials exercising departmental control, including supervisory powers in relation to the heads of the investigative bodies themselves and the heads of the bodies of inquiry. Moreover, the prosecutor's supervision has a super-departmental character, which significantly increases its effectiveness. At the same time, the prosecutor should not replace the head of the investigative body, the head of the inquiry body in terms of the implementation of procedural guidance. When the need for the latter is identified, the prosecutor demands that the necessary measures be taken directly by the indicated departmental leaders. The intervention of the prosecutor in this regard can be justified only in exceptional cases due to their inactivity.
The advantages of prosecutorial supervision over judicial control lie in its close proximity to the investigating authorities, which provides an opportunity to respond promptly to violations of the criminal procedure law, especially after the return of some of the previous powers to the prosecutor by Federal Law No. 404-FZ of December 28, 2010.
Prosecutorial supervision is able to more quickly resolve conflict situations that do not require court intervention, related to the activity of resolving reports of crimes, thereby significantly relieving the burden on the judicial system to perform its main function - the administration of justice, not without the temptation to be uncontrolled.
When exercising supervision over activities to resolve reports of crimes, the prosecutor not only assesses it from the point of view of its compliance with the law, but also has the right, through the powers granted to him, to direct it in the interests of ensuring legality, to cancel the procedural acts of the body of inquiry and preliminary investigation.
The supervisory activity of the prosecutor at this stage is focused primarily on preventing possible violations of the law when resolving reports of crimes, which is also evidenced by the exclusive right of the prosecutor to make submissions to eliminate the violations identified, which is of great positive importance not only for the restoration of the violated right of a particular applicant, but also ensuring in the future the rights of an unlimited number of persons.
The supervision of the prosecutor operates continuously and continuously, is comprehensive and regular. The prosecutor, unlike the judge, does not have to wait for applications from interested parties to start checking.
The comparison shows that the control exercised by the courts, due to the objectively inherent laws of their functioning, cannot and should not replace prosecutorial supervision. Each of these systems occupies its own niche in the mechanism of government. In terms of the scale and focus, judicial control at the pre-trial stages is not only not identical to the prosecutor's supervision, but also does not duplicate it. The transfer, in accordance with the Constitution of the Russian Federation, to the jurisdiction of the court of powers to authorize the production of the most important procedural actions, as well as the introduction of a judicial procedure for appealing against the actions and decisions of the preliminary investigation bodies and the prosecutor himself relating to the constitutional rights and freedoms of participants in criminal proceedings, of course in this part limited the competence of the prosecutor, but this does not give grounds to talk about a change in the procedural status of the prosecutor in the pre-trial stages of criminal proceedings, as some authors argue.
Thus, we believe that the strengthening of the rule of law at the stage of initiation of a criminal case and an increase within its framework of the guarantee of human and civil rights and freedoms is facilitated not by the transfer of control and supervisory powers from the prosecutor to the judge or by the establishment of an unshakable monopoly in this matter of any one body, but a clear distribution of the "area of responsibility" of each element of the guarantee system, where there is a place for the departmental chief, the prosecutor, and the judge, the creation of a unified system of guarantees with the possibility and real availability of the choice of means and methods of protection by the applicant of the violated right.
Due to the universality of his competence and the constant focus on accepting the entire arsenal of powers granted in all spheres of legal relations, the prosecutor today is the most authoritative representative of the state, on the timeliness of the intervention and the firmness of whose position often depends on the receipt of wages by citizens, and the flow of hot water into the water supply system, and heating of residential houses, and the protection of entrepreneurs from the arbitrariness of officials, and the protection of citizens - buyers of goods (works, services) from violations of their rights by entrepreneurs, and even the timeliness of cleaning in the spring the ice hanging from the roofs of houses (because the head of the housing and communal services enterprise - the budget recipient knows that if the ice from the roofs are not removed in time, the prosecutor will check the implementation of not only housing, but also budgetary legislation at his enterprise).
At the same time, I believe that, to a large extent, the prosecutor's office at the present stage is doing the work that other state bodies are called upon to do.