The preliminary investigation is a form of criminal procedure, within the framework of which the bulk of criminal cases are investigated. It has its own characteristics: from completion to completion. The prosecutor's office plays a role in the process.
What is the difference
According to the Code of Criminal Procedure, a preliminary investigation is one of the forms of a preliminary investigation. Besides him, there is an inquiry (in general and abbreviated form). The differences between them lie in the procedures, timelines for the investigation, and the degree of freedom of the police officer.
The investigator has more time to investigate, and he needs to obtain permission from the prosecutor for a smaller list of actions. The CCP lists cases that relate to the investigation, and which relate to the inquiry. The law allows the prosecutor to transfer the case from the interrogating officer to the investigator because of special significance. For example, when it comes to socially vulnerable citizens. Although the law does not say anything about this.
Investigative bodies
The preliminary investigation is the activities of investigators of the FSB, the police and the UK. The inquest is conducted by the police, fire control, FSSP and investigators of the UK. If for some reason the case falls under the competence of the two bodies, then the decision on who gets the case is the responsibility of the prosecutor.
The distribution of cases is regulated by the norms of the Code of Criminal Procedure: it clearly describes what authorities investigate what cases.
The essence of the investigation
The preliminary investigation is a procedural activity. First of all, the investigator’s task is to collect papers and document information about the crime and then transfer them to the prosecutor. Almost all the work of the investigator consists of paperwork. And he works on the basis of materials prepared by operational services on their initiative or by the investigator.
The order of the preliminary investigation provides for the commission of certain actions, an algorithm. All of them are recorded in decisions and protocols. The decision reflects what the investigator is undertaking, and the procedure is described in the protocol.
Opening of the proceedings
Having in his hands operational materials, reports of police officers and other services, the investigator initiates proceedings against a specific person or without it. With the relevant decision, the preliminary investigation in the criminal process begins.
Note that informal rules oblige you to bring the case to court, otherwise the investigator will have problems. Therefore, the risk of not finding a guilty person or a sufficient amount of evidence leads to refusals to open cases on reasonable allegations.
Investigator Powers
According to the law, the preliminary investigation is carried out by a series of actions. Some of them are mandatory, while others are made by decision of the investigator. The participants in the process have the right to ask for investigative actions; the investigator makes a decision on such requests.
The investigator's arsenal includes:
- inspection of the scene;
- interrogation;
- conducting a search;
- direction of requests;
- appointment of examination and interrogation of an expert, if necessary.
At the same time, the permission of a judge is required to carry out certain actions, in particular a search or inspection of housing, if there is no consent of the people living in it. If there were urgent circumstances, the search is carried out without a court decision, and within 24 hours the materials are transferred to the court.
The investigator has the right to detain a person, but no more than 48 hours, for further detention, it is necessary to obtain a court order. If for some reason it is not received, the detained person is released.
Head of Investigation Department
His task is to implement departmental control. Without his permission, no material is sent to the prosecutor for verification. On the resolution of the investigator, a place is always allocated for the resolution of not only the prosecutor, but also the head of the investigation department. The competence of the head also includes the consideration of complaints by participants in the investigation.
Thus, an additional filter is formed in the “preliminary investigation - prosecutorial supervision” system. In addition, more experienced investigators are able to provide additional assistance to these posts.
Who is responsible for legality in the investigating authorities
The investigator is not a fully independent official. There are several levels of control. In addition to the immediate superior, supervision of the preliminary investigation bodies is carried out by the prosecutor and the judge. They consider complaints from participants in the process.
There is a difference in how the supervision of the preliminary investigation and inquiry is carried out. Those tasks that the head of the department performs in the investigation are transferred to the prosecutor. He gives mandatory instructions, directs the course of affairs and gives permission for certain actions, which is not in the investigation system.
What is the work of the prosecutor
The prosecutor's office has a distribution of responsibilities: some of the employees are engaged in supervisory activities, the rest provide state prosecution in court.
At the first stage, consent or refusal to initiate proceedings is given. It is rare that a prosecutor does not agree with the opinion of the investigator or another person who issued the decision (the investigators and district inspectors often decide not to initiate proceedings themselves). Along with the decision, other materials are sent to the department; on their basis, the prosecutor formally makes a decision.
If there is a need for a court permit, the materials are first of all transferred to the prosecutor. The employee of the supervisory authority is obliged in the trial to express his opinion on the request of the investigator. Most often it is supported. This is especially noticeable in applications for the placement of citizens in custody.
What does the prosecutor pay attention to
Termination and suspension of proceedings are also carried out with the consent of the prosecutor. The decision shall be signed and marked on the consent of the prosecutor with the actions of the investigator. Materials for this are not transferred to the court, unless the interested participant appealed the actions of the investigator.
Handling complaints
The prosecutor is one of the instances with the right to control the actions or inaction of the investigator. A complaint may be lodged against any action deemed unlawful. This includes the procedure for initiating proceedings, the order of investigative actions, the commission of illegal actions, in particular the use of torture, blackmail, etc.
They complain about the refusal to interrogate an additional witness, appoint an examination, ensure participation in her appointment (raise questions, which they will then send to the expert). No less significant complaints: unjustified use of force, torture, etc.
The prosecutor makes a decision in which he points out the violations that he has identified and the measures that, in his opinion, should be taken by the investigator or the head of the investigation department. The investigator and his boss have the right to disagree with the request of the prosecutor. In this case, the dispute is resolved by a higher prosecutor, the Chairman of the UK and the Prosecutor General. The opinion of the latter is final.
At the same time, the prosecutor has the right to take the case from the investigator and transfer it to another member of the investigating authority.
Thus, the activities of the preliminary investigation authorities and their supervision closely overlap.
Algorithm of actions after the end of the investigation
After the investigation is completed, the case is referred to the prosecutor's office, and two possible decisions are made:
- return the case to eliminate deficiencies;
- send the case to court with an approved indictment.
If the prosecutor chooses the first option, he indicates what the violations are, and gives the time to correct them. They relate to the correct qualification of the actions of the accused, the scope of the charges (the number of episodes of criminal activity), the direction of the investigation (version of the crime committed), etc. The prosecutor, having discovered violations during the verification of the case materials, has the right to take measures to eliminate them without complaints from the participant in the process.
Judicial control
We note an important point: the control of the court is ensured at the stage of the pre-trial investigation, when complaints are submitted, and after the case is transferred to the court.
The peculiarity of the first option is that the judge does not have the right to initiate consideration of the actions or inaction of the investigator without a complaint from the participant in the case. However, a judge has a large amount of powers at the stage of judicial investigation. In particular, he is obliged to check whether the accused or the defendant is limited in his right to defense.
At the preliminary hearing stage, the court has the right to send the case back to the prosecutor so that he takes measures to eliminate the errors. The judge does not prejudge the issue of guilt or innocence of the accused.
Unlike the prosecutor’s instructions, the court’s order is binding on the prosecutor, investigator or the head of the investigation department, however, they can again make a decision similar to the canceled one.
Prosecutors, in fact, rewriting a court order, transfer cases back to investigators. Such a procedure takes place in case of serious violations that cannot be hidden for some reason. As a result, most often the proceedings are terminated.
If the investigation revealed significant violations
The prosecutor and the judge, having discovered violations, have the right to send materials for the decision on bringing the investigator to justice. It is possible both to conduct an internal audit ending in a reprimand, and to initiate proceedings against the police officer.
By decision of the prosecutor or judge, the materials are transferred to the Investigative Committee, which is engaged in official crimes. Formally, neither the prosecutor nor the judge initiates the case, and the final decision is made by the investigator who received the material for consideration.