Protocols are one of the most common evidence in criminal cases. They are the most popular means of fixing the process of investigative actions and their results. However, they can be accepted as evidence only if they comply with the requirements established by law, specified, in particular, in Art. 166 Code of Criminal Procedure. The latest amendments to this criminal procedure rule, its contents and comments can be found further in the article.
General information
The minutes of the court session, as well as the investigative action, shall recognize a written act in which the authorized person (interrogating officer, investigator, court), in accordance with the procedure established by the legislator, based on direct perception and observation, records information about the circumstances that are subject to proof in the criminal case or have to its meaning. As evidence, they can be used only subject to strict observance of the requirements of the law, namely - Art. 164-167 and 259 of the Code of Criminal Procedure.
What protocols can be evidence?
Independent evidence may be the protocols of such investigative actions as all types of inspection, investigative experiment, search, survey; seizure of items (postal and telegraphic), seizure, recording and monitoring of negotiations, on-site verification of evidence, presentation for identification. The list is exhaustive. Protocols of other actions (investigative) are not evidence. Although they must also comply with Art. 166 Code of Criminal Procedure. For example, confrontation protocols, interrogations. This fact is due to several reasons.
The first category of protocols (inspection, examination, etc.) reflects the process and the results of the investigation by the prosecutor, the investigating authority, or the court of the phenomena, deeds, environment, experiment, in other words, of a certain experienced action. In fact, only those information that is observed by the official carrying out the proceedings in the criminal case, as well as the participants in the process, are recorded in the acts.
The minutes of confrontations and interrogations, on the contrary, are only technical means of recording the testimony of the interrogated person and in connection with this evidence are not.
Part 1, 2 166 Art. Code of Criminal Procedure: time and method of compiling the protocol
Drawing up this type of protocol is a mandatory procedure for each investigative action. It is drawn up directly in the process or immediately after its completion. A protocol is drawn up in writing in one of the ways specified in part 2 of article 166 Code of Criminal Procedure, namely: by hand or using technical means. In addition, when conducting investigative actions, photographing, shorthanding, audio recording and video recording, filming may be used. At the same time, photographic pictures and negatives, a shorthand record and a transcript, audio and video materials are stored together with the criminal case.
According to Part 8 of Art. 166 of the Code of Criminal Procedure, the protocol should include the results of the use of video, photo, film or audio equipment, if they were really used during the investigative action. They are an illustration of the content of a written act and its component, therefore, do not have the status of independent evidence. Drawings, drawings, diagrams, plans and shorthand records drawn up during the investigative action may also be attached to the protocol.
Part 3 of the article 166 Code of Criminal Procedure: introductory part
According to the text of the norm, the introductory part of the protocol must certainly contain the following data:
- date and place of its production, time (accurate to the minute) of its beginning and end;
- data of the person who executed the protocol (surname with initials, position);
- data of all who participated in the investigative action (surname with initials, and, if necessary, other data about the person, including the address).
Commentary to Part 3 of Art. 166 Code of Criminal Procedure
In accordance with the comments to Art. 166 of the Code of Criminal Procedure, at the very beginning of the introductory block of the protocol it is necessary to indicate its name (seizure, search, site inspection, etc.). The following is the name of the locality in which the investigative action is carried out. The date in the protocol is indicated in the format day, month and year. For example, July 11, 2017 An abbreviated entry is not allowed. Similar requirements apply to the time taken to complete the action. It is indicated after the date, but before the information about the person who made the protocol.
The introductory part should also reflect the procedural grounds by which the authorized person is guided in the conduct of the relevant action (investigative), with reference to specific rules of the CPC.
Part 4 of article 166 of the CPC: substantive or descriptive part of the protocol
In the new edition of Art. 166 of the Code of Criminal Procedure (currently relevant) requires that all ongoing procedural actions are subject to a detailed description in the protocol. They need to be fixed in the order in which they were actually carried out. Along the way, circumstances that are significant when considering a specific criminal case in court, and statements by persons who took part in the investigative action are reflected.
The protocol shall indicate the names of the items and documents found with a detailed description of their individual characteristics, as well as their location and quantity. So, during a search they reflect information about discovered caches, their contents, damage caused during investigative actions, as well as attempts by a searched person to destroy or hide them. If documents and items to be seized are found, they must indicate in the protocol whether they were issued voluntarily or by force.
Use of technical means during logging
As mentioned above, in the preparation of the protocol allowed the use of technical means (computer). According to part 5 of the analyzed article, they must be listed in the protocol. In addition, the conditions of their application and the order, the objects in relation to which they were used, and the results obtained are indicated. The protocol should include information that those involved in the investigative actions were aware in advance about the use of technical means.
Part 6 of the Art. 166 Code of Criminal Procedure: familiarization with the protocol
The third part of the protocol structure is called “final”. She sums up the peculiar result of the work done. It indicates all items that were seized, how they are packed and where they will be stored. Signatures of all participants in the process are affixed.
According to Part 6 of Art. 166 of the Code of Criminal Procedure, the protocol should be presented for review to all those who participated in the investigative action. At the same time, the authorized person must clarify that they have the right to comment on the act (specifying or supplementing its content) to be entered into it. All additional comments must also be certified by the signatures of the participants who gave them.
If participants refuse to sign the protocol
Art. 166, 167 of the Code of Criminal Procedure are closely interconnected. Cases of refusal of participants in a certain investigative action (suspect, victim, accused and other person) to sign the protocol in practice often occur. The rules for this stage are described in Article 167 of the Code of Criminal Procedure. So, if the indicated persons refuse to sign the protocol, the investigator makes an appropriate entry in it and certifies it with his signature. At the same time, the guilty, the accused, the victim and other participants are given the opportunity to give explanations about their refusal.
If the above persons cannot sign the protocol due to certain physical defects they have, or due to health reasons, they are introduced to the act in the presence of a legal representative, witnesses or defense counsel. The latter confirm the content of the document, as well as the impossibility of signing it with personal signatures.
Protocol signing
The final part of the act should also contain information about the applications (photographs, negatives, phonograms, plans, schemes, prints of tracks, casts, etc.), provided that they were performed precisely during the execution of this investigative operation. In conclusion, in accordance with the requirements of Clause 7, Article 166 of the CPC, the protocol is signed by all participants and the investigator. In individual cases stipulated by law, all persons participating in the investigative action receive a copy of the act, as a corresponding note is made in the original document. For example, during a search, seizure of property, seizure.
Part 9, Art. 166 Code of Criminal Procedure: safety of the injured person
Part 9, Art. 166 of the Code of Criminal Procedure of the Russian Federation allows not to indicate to the inquiry officer, investigator in the protocol data on the identity of the victim, as well as his representative or witness. This is permitted if it is required to ensure the safety of these persons or their close people and relatives.
The investigator or investigator, with the consent of the superior persons (the head of the body of inquiry or the head of the investigation department), makes a decision. In it, he sets out in detail the reasons for the decision to keep the data confidential. In addition, a pseudonym is indicated, under which the victim or witness will appear in the documents in the future, as well as a sample of their signature, which they will use to draw up a protocol of the actions taken with their participation.
Further, the decision is sealed in an envelope, which is sealed and attached to the criminal case. It should be stored in conditions that exclude the possibility for other participants in the process to familiarize themselves with it.
If the case is urgent, the specified action is allowed to be carried out on the basis of the decision of the inquiry officer or investigator without obtaining the consent of a higher official. However, as soon as the opportunity arises, the document is transmitted to the heads of the investigating authority or inquiry.
Part nine of the article under review introduced a new measure in the domestic criminal procedure legislation aimed at protecting witnesses and victims. She is in close contact with the possibility of these persons to testify in court under conditions that exclude visual contact with other participants in the proceedings (in accordance with the comments). Art. 166 Code of Criminal Procedure in 2016 was changed in this part. Previously, only the investigator had authority to make a decision. The amendments that entered into force in 2016 allowed this action to be carried out by the inquiry bodies.