When conducting a criminal case, the investigator plays one of the most important roles. The timeliness of bringing the guilty person to criminal responsibility and the usefulness of the evidence base in the trial depends on his work. The concept of “Investigator’s powers in criminal proceedings” is not expressly enshrined in the Code, but is implied based on the content of the article.
The powers of the investigator under the Code of Criminal Procedure
The criminal procedure legislation fully discloses the powers of the investigator in criminal proceedings in Article 38. According to the article, the investigator belongs to the category of officials who carry out the investigation process at the preliminary stage in criminal cases within the framework of the powers established by law.
Within the framework of the powers granted to him, the investigator has the right to carry out the following actions:
- Decide to initiate criminal proceedings in the manner prescribed by law.
- Accept criminal cases for production or transfer cases to the head of the investigation department for transfer under jurisdiction.
- Carry out independent management of the direction of the investigation, the adoption of decisions on the implementation of investigative and procedural actions, except in cases where the authorization of the court or the consent of the head of the investigating authority is required to carry out these actions.
- In writing, instruct the employees of the bodies of inquiry to carry out activities of an operational-investigative nature, to carry out certain investigative actions, to execute decisions on the drive, detention, arrest, implementation of other procedural actions or the joint execution of these actions.
- Submit a complaint, agreed with the head of the investigating authority, on the decision of the representative of the prosecutor’s office to annul the decision allowing the initiation of a criminal case, to investigate by returning the case to the investigator, to change the categories or classifications of the charges, to draw up a new conclusion of an indictment nature or to eliminate shortcomings in the documents already drawn up .
If the investigator does not agree with the decision of the prosecutor, he has the right to file a complaint through his immediate superior - the head of the investigating authority, who brings the thesis of the complaint to the prosecutor.
Definition of authority
Article 38 of the Code of Criminal Procedure of the Russian Federation does not limit the powers of the investigator in criminal proceedings. To a varying degree, they appear in other articles.
At the beginning of the Code (Article 41, paragraph 41), it is indicated that the investigator conducts all stages of the preliminary investigation of the case, and also exercises other powers that are provided for by the legislation of the criminal procedure sphere.
All powers represent a system of procedural duties and rights of an investigator, which are necessary and sufficient for the implementation of procedural actions:
- making the right decision on crime reports;
- establishing the absence or presence of circumstances that are subject to proof in a criminal case;
- providing appropriate conditions for legal review and judicial settlement of the merits;
- exemption from criminal liability for a person who has committed a minor crime or a crime of moderate severity;
- rehabilitating a person found not guilty.
Some concepts of the investigator’s authority in a criminal process of a procedural nature are defined by other legislative acts, including federal laws. Organizational powers are reflected in the regulatory documents of the General Prosecutor's Office, the Ministry of Internal Affairs and the FSB of the Russian Federation, which reveal the features of the process of organizing the preliminary investigation stage. Some points are disclosed in the acts of these departments together with the heads of other committees, services and ministries.
Authorization Classification
An analysis of the provisions of the articles reflecting the content of criminal procedural norms allows the classification of the powers of the investigator in criminal proceedings. All powers are divided into the following types:
- consideration and resolution of reports of crimes committed, committed or planned;
- the establishment of circumstances that are part of the process of evidence in criminal cases;
- criminal prosecution of suspected or accused of criminal offenses;
- protection under the law of the rights, freedoms and interests of persons who are involved in criminal proceedings;
- giving instructions to inquiry bodies.
You can also classify the powers of the investigator in criminal proceedings, dividing them into two types:
- Protective.
- Imperious.
Examination and resolution of messages by investigators
Features of the powers of the investigator in criminal proceedings are enshrined in Articles 148, 38, 146 and 147 of the Code of Criminal Procedure. They are implemented within the framework of jurisdiction in criminal cases, in accordance with article 151 of the Code of Criminal Procedure.
During the period of clarification of the subject to whom the case is to be transferred under jurisdiction, interested parties can destroy the traces of a crime, falsify evidence or take other actions that direct the investigation on a false trace.
In order to exclude this possibility, the investigator who accepted the message is obliged to consider it, initiate a case and conduct priority investigative measures to clarify the circumstances of the case, and then transfer the case under jurisdiction, based on subsection 15 (5).
Examination and resolution of communications by special authorities
In the criminal process, the powers of investigators of each specialized prosecutor's office to initiate criminal cases are exercised on the basis of the Order of the prosecutor at the federal level No. 54 of September 9, 2002, delimiting the competence of territorial, military and other specialized prosecutors.
The jurisdiction of investigators belonging to the military prosecutor's offices includes the initiation of criminal cases of crimes committed by the following categories of people:
- Military personnel.
- Persons who undergo military training.
- Civilian personnel belonging to the Armed Forces of the Russian Federation.
- People related to other troops or military units and bodies that are created in accordance with the laws of the federal level.
- Persons whose activities are associated with work on the territory of military units, formations or institutions.
The powers in the criminal process of investigators attached to the closed territorial entities of the city of Mizhhiria and the Baikonur complex extend to all crimes committed within these territorial entities, excluding the crimes of military personnel and other persons belonging to military investigators.
The functions and powers in the criminal process of investigators of territorial and transport bodies involved in internal affairs are determined by the Instruction of the General Prosecutor's Office, the Ministry of Railways and the Ministry of the Interior, which regulates the procedure for responding to detected signs of criminal offenses and the procedure for considering communications and statements regarding the theft of goods.
Establishment of circumstances of the subject of evidence
The powers of the investigator in the criminal procedure under the Code of Criminal Procedure of the Russian Federation are determined by Article 85. They include the collection, verification and assessment of evidence. According to Part 1 of Art. 86 of the Code, the investigator collects evidence in the process of carrying out procedural and investigative actions. In most cases, only evidence is collected, since the Code of Criminal Procedure implements other procedural actions that can be used to obtain information that meets the requirements of the law (part 1 of article 74 of the Code of Criminal Procedure of the Russian Federation), except for sending a request for legal assistance character to foreign departments of law enforcement agencies (Article 453 of the Code of Criminal Procedure of the Russian Federation).
One way is to gather evidence. This is the receipt of written documents and items that are presented as material for inclusion in the case as evidence by the accused, suspect, civil plaintiffs, victims, civil defendants and representatives of the parties (Article 86, para. 2). But the legislation does not define the procedure for obtaining these items and documents.
The powers of the investigator in criminal proceedings, under Article 38 of the Code of Criminal Procedure, also include the ability to give instructions to carry out investigative actions. If the data and information obtained as a result of this will correspond to the parameters of reliability, admissibility and relevance, they will be accepted as evidence.
Criminal prosecution
The functions and powers of the investigator in criminal proceedings in relation to criminal prosecutions are enshrined in Article 21 of the Code of Criminal Procedure. According to the law, the duty of the investigator is to prosecute public-private and private charges on behalf of the state.
The procedural powers of the investigator in criminal proceedings during the criminal prosecution are as follows:
- The initiation of a criminal case against a specific person.
- The detention of a specific person recognized as a suspect.
- Attracting a person as an accused.
- Search for hiding suspects or accused.
- Application of a preventive measure against the accused.
- Drawing up a conclusion of an indictable nature and referring the case to the prosecutor for further transfer, according to the jurisdiction.
Protection of the rights, freedoms and legitimate interests of the parties
According to the classification derived from the criminal procedure legislation, the functions and powers of the investigator in the criminal process, which relate to protecting the interests of all persons involved in the criminal process, are reduced to ensuring that all those involved in the criminal process are maximally protected and free as a participant in the process.
The investigator’s human rights powers are as follows:
- Clarification by suspects, accused, victims, civil plaintiffs, civil defendants and other participants in criminal proceedings of their rights, duties and responsibilities.
- Providing the parties with the opportunity to exercise their rights, duties and responsibilities.
- Taking protective measures against all participants in the criminal case, including the victim, witnesses and other persons, as well as to their relatives and relatives, if there is a threat to their safety. It can be expressed in the threat of murder, violence, destruction or damage to property, etc.
All powers of the investigator in criminal proceedings and the procedure for their implementation are enshrined in Articles 42, 44, 46-48, 53-54 of the Code of Procedure.
Securing the rights of defense to suspects and accused
The concept and powers of the investigator in criminal proceedings in the sphere of protection of the accused are reflected in clause 4 of part 2 of article 38 of the Code of Criminal Procedure. Based on the procedural legislation, the investigator may give the employees of the inquiry body instructions to carry out operational-search actions and other investigative measures, including the execution of decisions on bringing, arrest or detention, and other procedural actions. In addition, the investigator has the right to independently exercise the specified powers to receive assistance from the inquiry in the implementation of all activities.
An order as the investigator’s authority in the criminal procedure under the Criminal Procedure Code is a written request from the investigator to the inquiry department to carry out certain procedural types of actions or activities of an operational-search nature. The order includes information about the guarantor, addressee, the content of the case, the regulatory framework and the specific necessary actions. An order may include an explanation of the process of its implementation.
To order an inquiry, certain requirements must be met, in particular:
- It is possible to give instructions only if there are objective reasons for the impossibility of carrying out the necessary investigative actions by the investigator himself.
- It is impossible to commission an inquiry to make independent decisions requiring an assessment of the totality of evidence that is available in the case and the implementation of the necessary actions. Such actions include the presentation of charges, interrogation, the election of a preventive measure, the recognition of a person as a victim or another participant in the criminal process, the appointment of an examination, etc.
- It is impossible to entrust the inquiry with the implementation of the most important actions for a criminal case and actions that require special skills and qualifications (for example, to inspect the scene of an incident, present a person for identification, conduct investigative experiments).
The compiled order is sent to the head of the inquiry department, who appoints the necessary employee for its execution. According to the procedural articles, the powers of the investigator in the criminal process allow him to send an order to a specific officer of the inquiry department, if he is part of the investigative-operational group. A copy of the order, together with the minutes of the actions taken, is attached to the case. If this procedural action is not performed, the results of the investigative measures may be considered unlawful.
According to part 7 of Article 164 of the Code of Criminal Procedure, the powers of the investigator in criminal proceedings include the possibility of involving in the investigative actions an official of the body that carries out operational-search activities, which is reflected in the protocol.
The scope for exercising powers of an investigator is quite wide. He has the right to independently ask the direction of the investigation, to decide on the production of any actions of a procedural or investigative nature. The only exceptions are cases where the performance of certain actions requires judicial or prosecutorial sanction.
The list of restrictions on the exercise of the powers of an investigator in criminal proceedings is exhaustive. In the procedural plan, the investigator is independent with respect to making decisions on referral of the case, in determining the tactics of conducting investigative actions and the sequence of their conduct.
In general, the procedural independence and independence of the investigator conducting the case consists in the fact that, except for the prosecutor and the head of the investigating authority, no one has the right to demand materials related to the criminal case, on which a decision was made to refuse to open a criminal case, the case materials themselves for implementation checking the progress of the investigation. In addition, outsiders are not entitled to study ongoing criminal cases and give instructions on them, determine the qualification of crimes, or otherwise intervene in the procedural actions of the investigator.
The powers of the investigator in the criminal process, according to Articles 38 and 39 of the Code, are ensured by legislative restriction of the prosecutor's powers and the powers of the head of the investigation department regarding the implementation of the procedural management of the investigation process at the preliminary stage.
The power of authority
The power component of the powers of the investigator in criminal proceedings is as follows:
- The investigator has the right to demand from each citizen, from all private or state organizations, enterprises or institutions, their managers and other persons, the failure to carry out or carry out the legal and legal actions specified by the investigator (to provide the requested documents or objects, not to change the place of a permanent or temporary without the permission of the leading investigator residence, to participate in the implementation of investigative measures or actions as witnesses, translators, specialists, etc.).
- In the event of the establishment of pre-trial circumstances that contributed to the commission of a criminal offense, the investigator may submit to the appropriate official or organization a statement on the immediate elimination of such circumstances or other violations of the law.
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