On the powers of the prosecutor's office to control investigative bodies

On the powers of the prosecutor's office to control investigative bodies

De facto proof occurs at the pre-trial stage. It is a common opinion that the prosecutor and lawyer (defender) are representatives of two opposite parties in criminal proceedings, and adversarial criminal proceedings by their nature do not imply any effective interaction between them.

Complete or partial refusals of prosecutors from charges in judicial practice are rare due to the staged criminal process adopted in our country, in which proof de facto occurs primarily in the pre-trial stage. The judicial stage often comes down to, so to speak, a public verification of the evidence collected by the investigation and the classification of the act given by the investigation, while providing the defense with the opportunity to challenge basically an already decided case.

Hence the judicial statistics on acquittals, the critics of which do not take into account the obvious fact that if before the judge the case was handled by three more equally qualified lawyers - the investigator, the head of the investigative body and the prosecutor - and if the latter acted in good faith, then the likelihood of the judge having an excellent As a general rule, the prosecution's view of a criminal case cannot be high.

Moreover, at the judicial stage, the prosecutor is bound by the very fact of approving the indictment, which presupposes a conscientious examination of the criminal case by him before it is sent to court.

Once, by the will of fate, while defending a judge, I well remembered his phrase that the case could be effectively resolved positively for the defense only during the investigation. Having worked in the judicial system for many years, he knew this well.

Finally, who among the lawyers did not hear a simple question from a representative of the state prosecution during the trial: why did you not present evidence for the defense during the investigation? It just seems formal and seemingly meaningless. The meaning in it is enormous: the prosecutor draws our attention to the above structure of the process, hinting that we, the defense, brought him problems, since if he had studied this evidence before transferring the case to court, he would have returned the case for additional investigation, perhaps , without the prospect of bringing it to court, but at the judicial stage he is already bound by the fact that he approved the indictment.

Under the slogan of increasing the independence of the investigator Do we today, at the stage of preliminary investigation, have a sufficiently authorized procedural subject capable of resolving the dispute between the defense and the investigator? Of course have. Only this is not the prosecutor, but the head of the investigative body - the one with whom the investigator directly coordinates his main actions and decisions in the case. And lawyers know that sometimes preparing a decision on a complaint in accordance with Art. 124 of the Code of Criminal Procedure of the Russian Federation, the heads of the investigative bodies entrust the investigator, whose actions are appealed by the applicant. In my practice, quite recently there was a case when, right up to the deputy chairman of the Investigative Committee, all the heads of the investigative body, responding to a complaint filed in accordance with Art. 124 of the Code of Criminal Procedure of the Russian Federation, indicated that at the pre-trial stage it is not necessary to terminate criminal prosecution for episodes with expired statutes of limitations: this may affect the completeness and comprehensiveness of the investigation of the case. What else can I add here? This example is not unique.

Let me remind you that at one time, when the Investigative Committee of the Russian Federation was being formed, investigation officials achieved a significant reduction in the powers of the prosecutor to supervise the investigation of criminal cases. And this idea was promoted under the slogan of increasing the independence of the investigator.

Years earlier, some authors called for the revival of the institution of forensic investigators, saying that the ideal would be to have an investigator who would conscientiously and independently investigate criminal cases, guided by the law and his own conscience. But nothing of the kind happened due to the fact that the tasks of the preliminary investigation are solved not by individual investigators, but by the investigative apparatus, which forms the procedural and other investigative practices, including in specific criminal cases. The investigator in this apparatus is an ordinary employee working under the full control of the head of the investigative body. That is why talk about the formation of an independent and effective investigator is inappropriate.

There is no one to appeal to. In such a system of relations, the practical relevance is not the degree of control and supervision on the part of an individual prosecutor over an individual investigator in a specific case - the investigator will always be controlled, if not by the prosecutor, then by his supervisor, but by the question of the powers of the prosecutor's office to control the investigative bodies. And the powers of the prosecutor to supervise the investigation of the case depend on the solution of this general, and primary, issue.

Now, when the powers of the prosecutor in the sphere of supervision over the investigation are extremely reduced, the defense at the stage of preliminary investigation simply does not have a properly authorized procedural subject to whom it could effectively appeal with its arguments, with the exception of the stage provided for in Chapter. 31 of the Code of Criminal Procedure of the Russian Federation, where minimum terms are established. And this despite the well-known position of the Supreme Court of the Russian Federation on the need to reduce (under the guise of specifying) the scope of application of Art. 125 of the Code of Criminal Procedure of the Russian Federation and existing judicial statistics on cases of judicial control in the pre-trial stage of criminal proceedings (30% of complaints are considered, 5% are satisfied by the courts). Moreover, the courts always appeal to Art. 38 of the Code of Criminal Procedure of the Russian Federation that the investigator independently directs the progress of the investigation in a criminal case, being the only and independent subject of the proceedings in the case at the pre-trial stage.

I am competing not so much with the prosecutor, but with the judge. I would like to remind you that the Code of Criminal Procedure of the Russian Federation, with its detailed rules and stages of the process, is rooted in the Soviet Code of Criminal Procedure. And, probably, not everyone remembers how serious the demands were placed on investigators in Soviet times - this is known to those lawyers who managed to work as investigators in those already distant years. The judicial stage in the ideology of that time, not least of all, had the task of publicly proving and showing the guilt of the accused. Hence, the Code of Criminal Procedure of the RSFSR, instead of the principle of adversarial parties, contained the principle of completeness, comprehensiveness and objectivity of the investigation. Hence, the Code of Criminal Procedure of the RSFSR provided for the powers of the prosecutor to supervise the investigation, incomparable with the existing ones, and the preliminary investigation procedure was maximally detailed in the rules.

And then an adversarial process happened with a radical change in the basic, general provisions of procedural law. However, the true essence of the adversarial process presupposes that the main procedure of proof is carried out in court. In our case, the case goes to court with all the collected and procedurally documented evidence and its detailed assessment in the indictment in favor of the prosecution’s version. The judge, guided by the rules of Ch. 33 of the Code of Criminal Procedure of the Russian Federation, must study all this even before scheduling a court hearing in the case.

This situation is fundamentally different from the one when the parties present evidence to the judge directly during the judicial investigation, and can give their assessment of the evidence, and only those admitted by the court, only in the debate between the parties.

The defense side is not deprived of the opportunity, at the end of the investigation, to make its statement with an assessment of the evidence, which the judge will also read before the start of the hearing, but this opportunity is rarely realized, and an indictment is always drawn up.

When defending myself in court, I sometimes catch myself thinking that I am competing not so much with the prosecutor, but with the judge, who, even before the start of the trial, formed his attitude to the question of the defendant’s guilt. Sometimes you hear from fellow lawyers: we challenged the judge because he is clearly convinced of the defendant’s guilt. But if you look at it: what’s surprising here? This is the rule of our Code of Criminal Procedure. If you have already studied the case before the hearing with the participation of the parties, your task will only be to hide your already formed conviction from the participants in the hearing or begin to fight this conviction. But you can’t escape your conviction - it is formed independently of you when you first study the case materials. The results of your study are influenced by the interpretation of the materials given in the indictment.

The rules of our trial provide the defense with the opportunity not to convince, but to convince the court of the defendant’s guilt. And these are different things. And this is another reason to strengthen the role of the prosecutor in supervising the investigation at the pre-trial stage.

The role of the prosecutor at the preliminary investigation stage

 This article analyzes the change in the powers of the prosecutor during the preliminary investigation, taking into account historical experience and changes in regulatory legal acts of the Russian Federation. Reforms of the preliminary investigation entailed a transformation of the criminal procedural status of the participants on the prosecution side, which led to an ambivalent interpretation of some of the rights of the prosecutor.

Key words: prosecutor, preliminary investigation, preliminary investigation reform, head of the investigative body

At this stage of legislative development, the modern Criminal Procedure Code has undergone more than five hundred changes. A large number of changes also affected the preliminary investigation stage. The preliminary investigation itself was separated into an independent stage of consideration of a criminal case back in the 19th century. In my opinion, this was due to the fact that the trial and preliminary investigation stages pursue different goals. The preliminary investigation is aimed at identifying the absence or presence of a crime, the persons involved in it, the circumstances that contributed to the commission of the crime, and so on. The trial, in turn, resolves the criminal case on its merits. Initially, the idea of ​​separating pre-trial and judicial proceedings was aimed at avoiding the influence of preliminary conclusions, and with them the direct influence of the state, on justice [1, pp. 53–54, 97–101]. At the present stage of development of criminal procedural legislation, such division serves as a guarantor of independent and fair justice, thereby ensuring compliance with the principles of criminal proceedings.

Along with fundamental changes in the field of preliminary investigation, many changes were made in terms of establishing the powers of participants at this stage. In particular, Federal Law No. 83 of June 5, 2007 introduced amendments regarding the establishment of the rights and responsibilities of the prosecutor, which gave rise to a considerable number of different points of view on this matter. According to the current Criminal Procedure Code, the prosecutor continues to be an official who, on behalf of the state, carries out criminal prosecution, as well as supervision over the legality of procedural actions of the inquiry and preliminary investigation bodies.

If we take into account the Criminal Procedure Code of the RSFRS or other pre-revolutionary legal acts in the field of criminal proceedings, we can see that the powers of the prosecutor have been significantly reduced. For example, in the “Basic Provisions of Criminal Proceedings” dated September 29, 1862, it is stated that the accusatory power belongs to prosecutors. V. A. Lazareva states that even now the prosecutor is the head of the prosecutorial power [2, pp. 9, 11]. I consider her point of view to be correct, since the prosecutor is currently supervising the legality of the procedural actions of the investigator and interrogating officer. After all, without the prosecutor's approval of the indictment, indictment or indictment, the criminal case cannot be brought to court. While, in the above-mentioned legislative act, the indictment was drawn up by the prosecutor himself, which serves as an important argument in favor of diminishing his powers in the field of preliminary investigation.

Already in the 20th century, criminal procedural legislation significantly expanded the powers of the prosecutor. This is due to the fact that the issue of terminating the case belonged entirely to the investigator and the prosecutor, while the instructions of the prosecutor were mandatory for the investigator. M.A. Cheltsov calls the prosecutor of that time “the owner of the case” [3, pp. 228, 234, 235]. He was also assigned the right to establish and extend terms of detention, monitor the legality of initiating a criminal case and other administrative powers. All this significantly expanded the functions of the prosecutor and his role at the stage of the preliminary investigation.

With the adoption of the new Criminal Procedure Code, as well as the previously mentioned Federal Law No. 83 of June 5, 2007, the powers of the prosecutor were somewhat reduced. Some lawyers believe that such changes have entailed greater independence of the investigator in the production of procedural actions, which has a positive effect on the effectiveness of prosecutorial supervision, while others believe that this has significantly reduced the role of the prosecutor at the stage of preliminary investigation.

Thus, I.B. Mikhailovskaya in her monograph says that the prosecutor is an “additional filter” that contributes to the validity of the accusation [4, p. 19]. Thus, the author of this monograph means that the prosecutor only performs an auxiliary function in the preliminary investigation. In my opinion, she understates the role of this member of the prosecution. On the one hand, this point of view is correct because the prosecutor supervises the legality, but on the other hand, he has a greater range of powers than the investigator or interrogator. As a result, I am inclined to the latter point of view, since I believe that the prosecutor is a fairly important procedural figure, reinforced by the fact that in the event of disagreement between the preliminary investigation or inquiry bodies, the Prosecutor General of the Russian Federation makes a final decision, which is indisputable. This means that a parallel can be drawn between the functions of prosecutorial supervision and the preliminary investigation or inquiry, designating them as equally important for the preliminary investigation.

From the above, it should be noted that the prosecutor is the most important and integral subject of the function of criminal prosecution. This point of view is confirmed, in particular, by V. A. Lazareva and A. A. Tarasov, saying that the prosecutor is the bearer of accusatory power, who is called upon to actively identify crimes, expose the perpetrators and bring them to trial [5, C 224]. Also, this is confirmed legislatively, specifically, in the regulations mentioned earlier.

Analyzing the 2007 reform, the prosecutor still did not have a leadership role in the preliminary investigation, but only performed supervision over the legality of procedural actions and other executive and administrative functions. Basically, all powers relating to supervision of the preliminary investigation belonged to the head of the investigative body.

But Federal Law No. 83 was replaced by Federal Law No. 404-FZ of December 28, 2010. This regulatory act made significant changes to the scope of the prosecutor’s powers, which expanded his procedural status.

For example, the prosecutor was given back the authority to give instructions to the investigator to clarify any specific circumstances of the criminal case. In my opinion, this change entailed strengthening prosecutorial control over the activities of the investigator and the restoration of a leadership role.

But at the same time, with the introduction of such changes, a contradiction arises between the powers of the prosecutor and the head of the investigative body. Criminal procedural legislation gives them similar powers during the preliminary investigation. This leads to numerous disputes about the need to “improve the existing mechanism of interaction between the prosecutor and the head of the investigative body in order to provide the prosecutor with a real opportunity to exercise supervisory powers over the legality during the preliminary investigation and ensure the real elimination of the shortcomings of the investigation” [6, pp. 25–29].

The reason for this may be the fact that, for example, the prosecutor may return the case for additional investigation, while the head of the investigative agency may reject such a request. At first glance, the legislation protects the actions of the prosecutor, guaranteeing that he can cancel the decisions of the head of the investigative body, but on the other hand, part 4 of Article 39 of the Criminal Procedure Code comes into conflict, which states that the head of the investigative body can issue a reasoned refusal to the actions of the prosecutor. But, apparently, the prosecutor’s ability to overrule the decisions of the head of the investigative body applies when the latter performs his duties as an investigator.

Thus, when analyzing the past and present legislation of the Russian Federation, it is important to note that there is an urgent need to specify the functions of the prosecutor at the stage of preliminary investigation. After all, his powers are closely intertwined with the powers of the head of the investigative agency, which indicates the imperfection of criminal procedural legislation, which means there is the possibility of a dual interpretation of such norms. This weakens the role of the prosecutor at the preliminary investigation stage.

From the beginning of the criminal procedure legislation of the Russian Federation until now, many reforms of the preliminary investigation have been carried out. In the course of such adjustments, the powers of the prosecutor changed each time, thereby expanding them, which led to a strengthening of his role at the stage of preliminary investigation. This serves as a kind of “turn to the past,” that is, some rights are being returned to the prosecutor, but still not to the full extent. I hope that in the course of the upcoming reforms, this procedural figure will acquire a more specific status and strengthen its position in the role of a “preliminary investigation body.”

Literature:

1. Golovko L.V. Inquiry and preliminary investigation in the criminal process of France. M., 1995. - 130 p.
2. Lazareva V. A. Prosecutor in criminal proceedings: textbook. allowance. M.: Yurayt Publishing House, 2014. - 295 p.
3. Cheltsov M.A. Criminal process. M.: Legal. Publishing house of the Ministry of Justice of the USSR, 1948. - 624 p.
4. Mikhailovskaya I. B. Changes in the legislative model of Russian criminal proceedings. Monograph. // Prospekt Publishing House. 2015. 80 p.
5. V. A. Lazareva, A. A. Tarasov. Criminal procedural law. Current problems of theory and practice: a textbook for masters. // Publishing house "Urayt". 2012. 476 p.
6. Dzhatiev V. Why does Russia need a prosecutor's office? // Legality. 2008. No. 8. pp. 25–29.

Powers of the prosecutor in pre-trial proceedings.

The prosecutor is an official authorized, within the limits of his competence, to carry out criminal prosecution on behalf of the state during criminal proceedings, as well as supervision over the procedural activities of inquiry bodies and preliminary investigation bodies (Article 37 of the Code of Criminal Procedure of the Russian Federation).

During pre-trial proceedings in a criminal case, the prosecutor is authorized to:

1. verify compliance with the requirements of federal law when receiving, registering and resolving reports of crimes;

2. initiate a criminal case and entrust its investigation to an inquiry officer, investigator, subordinate prosecutor, or accept it for his own proceedings;

3. participate in the preliminary investigation and, if necessary, give written instructions on the direction of the investigation, investigative and procedural actions;

4. give consent to the inquiry officer or investigator to initiate a criminal case;

5. give consent to the inquiry officer or investigator to initiate a petition before the court to select, cancel or change a preventive measure or to perform another procedural action that is permitted on the basis of a court decision;

6. allow challenges filed to a lower-ranking prosecutor, investigator, interrogating officer, as well as their self-challenges;

7. remove the inquirer or investigator from further investigation if they committed a violation during the preliminary investigation;

8. withdraw any criminal case from the investigative body and transfer it to the investigator, transfer a criminal case from one investigator of the prosecutor’s office to another with the obligatory indication of the grounds for such transfer;

9. transfer a criminal case from one preliminary investigation body to another;

10. entrust the body of inquiry with carrying out investigative actions, as well as give it instructions on carrying out operational investigative activities;

11. extend the period of preliminary investigation;

12. approve the decision of the inquiry officer or investigator to terminate the criminal proceedings;

13. approve the indictment or indictment and send the criminal case to court;

14. return the criminal case to the inquiry officer or investigator with his instructions to conduct an additional investigation;

15. suspend or terminate criminal proceedings. Written instructions from the prosecutor to the body of inquiry, the inquiry officer, or the investigator are mandatory, and if they are appealed, this does not suspend their execution. These powers are exercised by district and city prosecutors, their deputies, equivalent prosecutors and superior prosecutors.

Process of proof. Elements of the process of proof. Burden of proof. Methods of collecting evidence. The concept and meaning of evaluating evidence. Rules for evaluating evidence.

The process of proof is an activity carried out on the basis of the criminal procedural law to establish and cognition with the help of evidence of facts of objective reality necessary for the correct resolution of a criminal case.

Elements: Collection of evidence - the commission by the inquirer, investigator, prosecutor, court, suspect, accused, victim, civil plaintiff, civil defendant, their representatives and defense counsel, within the limits of their powers, of certain actions aimed at discovering, requesting, obtaining and securing in the manner prescribed by law evidence.

Evidence is collected by:

— detection and procedural registration of evidence carried out by investigative and procedural actions;

— demands from various individuals, legal entities and officials of all kinds of documents;

-requirements for auditing and restoring accounting records

Onus of proof:1. Each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. The obligation to prove the circumstances that served as the basis for the adoption by state bodies, local self-government bodies, other bodies, officials of contested acts, decisions, actions (inaction) is assigned to the relevant body or official.

2. Circumstances relevant for the correct consideration of the case are determined by the arbitration court on the basis of the demands and objections of the persons participating in the case, in accordance with the applicable rules of substantive law.

3. Each person participating in the case must disclose the evidence to which he refers as the basis for his claims and objections to other persons participating in the case before the start of the court hearing or within the period established by the court, unless otherwise established by this Code.

4. Persons participating in the case have the right to refer only to that evidence with which other persons participating in the case were familiarized in advance.

5. If evidence is presented in violation of the procedure for presenting evidence established by this Code, including in violation of the deadline for the presentation of evidence established by the court, the arbitration court has the right to assign legal costs to the person participating in the case and who committed such a violation, regardless of the results consideration of the case.

Main ways of collecting evidence:

• representation by the parties, other persons involved in the case and their representatives;

• reclaiming them by the court from persons and organizations that have them;

• issuing requests for the right to receive and present them to the court to persons applying for written or material evidence;

• summons to court as a witness;

• appointment of an examination;

• sending letters rogatory to collect evidence to other courts;

• providing evidence

Evaluation of evidence is a mental, logical activity of the inquirer, investigator, prosecutor and judge, aimed at determining the admissibility, relevance, reliability, significance (strength) of each evidence and the sufficiency of their totality to establish the circumstances included in the subject of proof. The main assessment of evidence is based on such an industry principle as the free assessment of evidence (Article 17 of the Code of Criminal Procedure). This assessment of evidence is made up of the internal conviction of the inquirer, investigator, juror and court in a criminal case, which is formed on the basis of internal conviction based on the law and conscience of these participants in criminal proceedings. The criminal procedure law requires consideration of evidence from the point of view of its relevance, admissibility, reliability, and in the totality of all collected evidence - sufficiency to resolve a criminal case.

Rules for assessing evidence . 1 . Each evidence is subject to assessment from the point of view of relevance, admissibility, reliability, and all collected evidence in the aggregate - sufficiency to resolve the criminal case. 2 . In the cases specified in part two of Article 75 of this Code, the court, prosecutor, investigator, inquirer recognizes the evidence as inadmissible. 3 . The prosecutor, investigator, or interrogating officer has the right to declare evidence inadmissible at the request of the suspect, accused, or on his own initiative. Evidence declared inadmissible shall not be included in the indictment or indictment. 4 . The court has the right to declare evidence inadmissible at the request of the parties or on its own initiative in the manner established by Articles 234 and 235 of this Code.

In Russian criminal procedural law, evidence obtained in violation of the requirements of the Criminal Procedure Code is recognized as inadmissible

Inadmissible evidence includes:

· testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense attorney, including cases of refusal of a defense attorney, and not confirmed by the suspect, accused in court;

· testimony of a victim, a witness, based on a hunch, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge;

· other evidence obtained in violation of the requirements of the Criminal Procedure Code.

Verification of evidence is a verification of evidence carried out by an inquirer, investigator, prosecutor, or court by comparing it with other evidence available in a criminal case, as well as identifying its sources, obtaining other evidence that confirms or refutes the evidence being verified.

In the process of verifying evidence you must:

- compare the evidence with other evidence in the criminal case;

— establish the sources of obtaining this evidence;

confirm or refute the evidence being verified. Comparability of evidence with other evidence in a criminal case means that each evidence must be correlated with other evidence and verified in conjunction with the materials in the case. No piece of evidence is superior to any other piece of evidence. When contradictions are discovered in evidence, it is necessary to examine each evidence and clarify these contradictions. Any evidence used in a criminal case must have its source. Checking the evidence just boils down to identifying this source. When checking individual evidence, its completeness is established. This evidence is correlated with other evidence and, thus, it is confirmed or refuted.

The Code of Criminal Procedure names the following as methods for verifying evidence:

a) comparing them with other evidence already available in the case;

b) establishing sources of evidence;

c) obtaining other evidence confirming or refuting the evidence being verified.

The main way to verify evidence is to obtain other evidence, expanding its totality, since it ensures both the establishment of the sources of the evidence being verified and the possibility of comparing the evidence with each other. Each new evidence in this sense serves as a means of verifying existing evidence and is itself verified by them. A synonym for testing evidence is the term “research” used in theory.

Evidence is any factual data on the basis of which, in the manner prescribed by law, the body of inquiry, investigator, prosecutor and court establish: - the presence or absence of a socially dangerous act; - the guilt of the person who committed the act; - other circumstances relevant for the correct resolution of the case. The importance of evidence is expressed in the fact that with the help of the procedural form, factual data acquires high reliability, sufficient for reasonable conclusions about the guilt or innocence of a person in committing a crime. The law establishes that any court verdict or decision of an investigative body or official must be based on evidence.