Article 150 of the Code of Criminal Procedure stipulates that the essential elements of a preliminary investigation are investigation and inquiry. The choice of one of them in the framework of open criminal proceedings has a significant impact on the legality of subsequent procedural measures. Let us further consider in detail the forms of the preliminary investigation, the ratio of the investigation and the inquiry, as well as a brief description of the judicial investigation.
Preliminary investigation
The rules governing its implementation are enshrined in Chapter 22 of the Code of Criminal Procedure.
Preliminary investigation - a mandatory form of preliminary investigation in cases of all crimes, except those specified in 3 parts 150 of the article of the CPC. In the framework of these industries an inquiry is carried out.
As the main form of the preliminary investigation, the preliminary investigation is considered as a system of procedural measures and decisions of the investigator. Their essence boils down to the adoption of case materials in production, the implementation of procedural actions, the indictment, the application of coercive measures enshrined in law, the suspension, completion of an investigation, the execution of decisions on the case.
Authorized persons
The preliminary investigation as a form of preliminary investigation has a number of specific features. Features are primarily manifested in the subjective composition of persons authorized to conduct it.
The legislation indicates the specific authorities conducting the preliminary investigation. In the investigation of cases of acts listed in:
- Clause 1 of Part 2 of Article 151 of the Code of Criminal Procedure - investigators of the RF IC.
- P. 2 2 parts of Art. 151 - FSB investigators. These same persons are authorized to conduct a preliminary investigation in the cases enshrined in part 4 of Art. 151.
- Clause 3 of Part 2 of Article 151 - ATS investigator.
- P. 5 2 parts of Art. 151 - employees of bodies that implement the functions of controlling the circulation of psychotropic and narcotic substances.
The legislation allows for a preliminary investigation or investigation by the authorities that have identified the acts under Part 5 of Art. 151 Code of Criminal Procedure. In the cases specified in part 6 of the same norm, procedural activity is carried out by employees of that state structure, the jurisdiction of which includes acts in which criminal proceedings are opened.
General rules
The procedure for conducting a preliminary investigation as a form of preliminary investigation is regulated by a set of norms enshrined in Articles 162-170 of the Code of Criminal Procedure.
The basis for the commencement of procedural activity is the decision to initiate proceedings or to accept materials for production. The latter takes place when the case is initiated by the body of inquiry.
The investigation in the preliminary investigation ends with the termination of the case (a special ruling is issued on this), execution of a bill of indictment, or referral of production materials to a court to make a decision on the use of compulsory medical measures.
Time spending
For the preliminary investigation as a form of preliminary investigation, certain periods are provided. In accordance with the provisions of Article 162 of the Code of Criminal Procedure, authorized employees are required to complete the procedural activity within 2 months from the date of initiation of the case. This period includes the time from the day the production was opened until the day the materials were transferred to the prosecutor’s office with the indictment / ruling on the transfer of materials to the court for medical measures or until the day the decision to terminate the proceedings is made.
The period of the investigation does not include the time allotted for the investigator to challenge the decision of the prosecutor to return the case to carry out an additional investigation, to adjust the amount of the charge (qualification of the act) or to re-establish the opinion and eliminate the discovered shortcomings. The time during which the production was suspended on the grounds provided for in Article 208 of the Code of Criminal Procedure is not taken into account .
Period extension
The investigation may be extended to 3 months; the decision must be made by the head of the relevant body. For cases, the investigation of which is fraught with special difficulties, the period of the procedural measures may be extended to 12 months. The corresponding decision is made by the head of the investigative unit in the constituent entity of the Russian Federation or by another head equivalent to it, or their deputies.
A subsequent extension of the investigation period is carried out in exceptional cases. The basis for this is the decision of the chairman of the UK, the head of the investigative unit of the relevant federal executive body or their deputies.
Upon returning the case materials from the prosecutor's office in accordance with parts 1.1 of Article 211, 1 tbsp. 214 and clause 2 1 of part 221 of the article of the Code of Criminal Procedure, the deadline for fulfilling the instructions of the prosecutor is determined by the head of the investigating authority that accepted the case for its proceedings. Moreover, it cannot be more than 1 month from the date of receipt of materials.
In the case of the resumption of a terminated or suspended case or its return for an additional investigation, the investigation shall not exceed 1 month. from the date of its adoption by the investigator. A subsequent extension of the term is made according to the general rules enshrined in Article 162 of the Code of Criminal Procedure (parts 4, 5, 7).
Features of the implementation of procedural measures
According to general rules, within the framework of the preliminary investigation carried out by the investigator, the preliminary investigation is carried out by the employee alone. Moreover, the legislation allows the execution of procedural actions to the investigative group. Such a need arises in the investigation of particularly complex cases or with a large amount of procedural measures.
The head of the investigation unit makes a decision on attracting a group of specialists and on adjusting its composition. The relevant resolution provides a list of all employees who are involved in procedural activities. The person supervising and coordinating their actions is obligatory indicated. Employees of bodies conducting operational investigative work may be involved in the work of the group.
Suspects, accused, their representatives get acquainted with the list of employees authorized to conduct a pre-trial investigation in the form of a preliminary investigation.
Final stage
A preliminary investigation as a form of a preliminary investigation may result in a bill of indictment if all procedural steps have been taken and the evidence gathered is sufficient to bring an indictment. In this case, there must be no reason to dismiss the case.
Before an authorized employee proceeds to draw up a conclusion, he must perform a number of mandatory procedural actions. Among them:
- Notifying the accused and explaining to him the right to familiarize himself with the materials of the case on his own or with the help of a defense attorney (representative). The corresponding action is recorded in the protocol.
- Notification of the representative (defense counsel), the victim, civil defendant and plaintiff or their representatives.
The preliminary investigation, as the main form of the preliminary investigation, thus includes many procedural actions. All of them must be recorded in the relevant protocols and decrees.
Having drawn up the indictment, the investigator immediately sends the materials to the prosecutor. Further decisions and actions in the case are governed by the norms of chapter 31 of the CPC.
Inquiry
As part of a preliminary investigation, a preliminary investigation is not always mandatory. In cases stipulated by law, an inquiry is carried out instead.
From a legislative point of view, an inquiry officer is not the only entity authorized to conduct an inquiry. An investigator may also participate in the execution of procedural actions . Meanwhile, according to some authors, the mention of this official seems rather doubtful. This is due to the following.
Investigation and inquiry as a form of preliminary investigation have much in common, but at the same time they are distinguished by some specific features. So, the investigator cannot be guided by the procedural rules provided for the interrogating officer about the shortened time period for the investigation, drawing up an indictment, approving it with the head of the body of inquiry, etc.
In the theory of criminal law, the opinion that the preliminary investigation is carried out by some entities and the inquiry by others is considered traditional. Each of them is endowed with appropriate authority. The investigation is conducted by the investigator, and the inquiry is carried out by the inquiry officer. These and some other features of these forms of investigation delimited.
For proceedings under investigation by the interrogator, the investigator has the right to conduct an investigation, but exclusively in the manner of a preliminary investigation. According to part 4 of article 150 of the Code of Criminal Procedure, according to the written order of the prosecutor, the cases indicated in paragraph 1 of part 3 of the same norm can be referred for preliminary investigative measures. In practice, there have not yet been cases when an investigator made an inquiry.
Specificity of application of standards
The rules for the production of inquiries in general are enshrined in parts 1 and 2,223 of the Code of Criminal Procedure. It is carried out in the order defined by chapters 21, 22, 24-29 with some exceptions indicated in chap. 32 of the Code. It follows that the inquiry applies to absolutely all provisions relating to the conduct of a preliminary investigation, the implementation of procedural actions, suspension, resumption of the investigation and termination of proceedings. If the rules established for inquiry are not consistent with the order of preliminary investigation, special rules governing this particular form of investigation are subject to application.
General Provisions
The inquiry is carried out in cases of acts of medium and light gravity listed in clause 1, paragraph 3 of part 150 of the article of the CPC, for which an investigation is not necessary. Also, this form of investigation can be used in the framework of proceedings for other crimes, but by written order of the prosecutor.
In accordance with Article 223 of the Code of Criminal Procedure, 30 days from the date of opening of a case are allotted for inquiry. If there are reasons, it can be extended by no more than 30 days. The relevant decision is made by the prosecutor. If necessary, including for the examination, the period may be increased up to 6 months. The relevant decision is authorized to take the prosecutor of the district, city, the military prosecutor equated to him or their deputies. If there are exceptional circumstances related to the fulfillment of the request for legal assistance, formed and sent in accordance with the rules of article 453 of the Code of Criminal Procedure, the period of inquiry may be extended to 12 months. The decision on this is made by the prosecutor of the subject of the Russian Federation or the military prosecutor, equated to him.
Notification direction
In the event that a case has been initiated upon the commission of a criminal offense and sufficient information has been received as part of the inquiry, which gives grounds to suspect a citizen of involvement in this assault, the law provides for the duty of the investigator to draw up a special procedural document. It is a notice of suspicion of a person committing a crime.
According to the rules, secured by part 2 of article 223.1 of the Code of Criminal Procedure, this document should indicate:
- Place and date of compilation.
- F. I. O. employee.
- F. I. O. of the suspected citizen, date of birth.
- Description of the signs of the action, indicating the time and place of the commission, other circumstances to be proved in accordance with paragraphs 1 and 4.1 of part 73 of the article of the CPC.
- The specific norm of the Criminal Code, its part, paragraph, providing for punishment for a crime.
conclusions
Taking into account the above information, you can clearly determine the difference between the preliminary investigation and the investigation. The latter concept is more general. It covers two types of procedural activity - an inquiry carried out mainly by interrogators, and a preliminary investigation.
The differences between the preliminary investigation and other types of procedural activities are obvious. The legislation clearly establishes the composition of the entities authorized to carry it out, the procedure for carrying out the necessary actions, including the collection and recording of evidence.
What features distinguish a judicial investigation from a preliminary investigation?
Court proceedings aimed at examining the evidence and establishing the factual circumstances of the act are considered the central link in the proceedings. A judicial investigation allows you to create the foundation on which the further procedures prescribed by law are based. It is, in particular, the debate of the parties and the sentencing. The legality and validity of the final judgment in the case is largely determined by the quality of the judicial investigation.
This procedural activity differs from the preliminary investigation in a number of essential features. First of all, the investigation of evidence collected in the case in court is carried out orally, publicly, directly and continuously. This allows you to most reliably recreate events.
A judicial investigation cannot be considered a repeat of the preliminary investigation. It acts as an independent procedure. Investigation of evidence by the court is carried out regardless of the materials collected in the investigation.
A judicial investigation is carried out by another person - a judge. At the same time, the parties to production take a direct and active part in it. At the same time, the process provides for the simultaneous study and analysis of collected evidence from various perspectives.
During the trial, any possible versions of what happened are subject to verification. The court will follow the one reflected in the indictment. He must make a decision based on the evidence studied and analyzed at the hearing.
Process
Before starting the study of materials, the court announces the contents of the documents reflecting the prosecution. Further, the procedure for studying evidence is discussed and established.
The announcement of the indictment is aimed at publicly reporting the subject of the proceedings.
If an inquiry or investigation into the case has not been carried out, the meeting begins with the announcement of the victim’s statement. If there is a civil claim in the case file, its content is also communicated to the participants in the hearing.
After the prosecution is announced, the court must find out the defendant’s attitude towards him. For this, the presiding officer interrogates him. The survey establishes whether the citizen pleads guilty to the crime. After that, the rules for examining evidence are discussed and established.
It is worth saying that, despite a fairly detailed regulation of the procedural procedure for the execution of each judicial action, the legislation does not fix a predetermined sequence of their implementation. This is due to the specifics of the evidence in each case.
The law provides the court with the right to independently determine at the beginning of the investigation the most appropriate procedure for studying evidence. To this end, the proposals of the prosecutor, the defense attorney, the defendant, the civil defendant and the plaintiff, the victim, their representatives on the sequence of interrogations of the persons involved in the proceedings (including experts and specialists) are heard. Based on the results of their study, the court makes a decision, which reflects the procedure for studying the submitted materials. At any time, at the same time, he can change the rules established earlier, about which he makes an appropriate determination.
Conclusion
The preliminary investigation is considered the longest part of the criminal procedure. During it, a fairly large number of documents are compiled. - .
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