In accordance with Art. 39 Code of Criminal Procedure of 06.06.2015. Under the leadership of the investigating authority you need to understand the official who heads this or that investigative unit. It is important to note that this includes his deputy. What are the functions of the leadership of the investigating authority? What rights does he have? How serious are the responsibilities? This article discusses in detail Art. 39 Code of Criminal Procedure with comments (2016).
The powers of the leadership of the investigating authority
To begin with, it would be advisable to consider the powers of the leadership of the investigating authority. So, strictly according to the current Art. 39 of the Code of Criminal Procedure of the Russian Federation as amended, he is authorized:
- To give instructions for the preliminary investigation to several or one investigator. In addition, he has the right to seize from one and transfer this or that case to another investigator. In this case, it is very important that certain conditions of transfer exist that are binding. You need to know that the leadership of the investigating authority is endowed with the absolute right to form an investigative group, change its composition or accept a criminal case for its own production.
- To verify the materials of the criminal case or the verification data of the notice regarding the crime. In accordance with Art. 39 of the Code of Criminal Procedure, the leadership of the investigating authority is empowered to revoke unreasonable or illegal decisions of the investigator.
- Provide the investigator with instructions regarding the direction of the investigation, the performance of certain investigative operations, the involvement of a certain person as the accused, the election of a preventive measure against the accused or suspect, the scope of the charge, and the qualification of the crime. You need to know that the leadership of the investigating authority can personally study the messages related to the crime, as well as take part in their verification.
Additional authority
In addition to the above powers of the leadership of the investigative body, it would be advisable to submit the following items, formed strictly according Art. 38, 39 Code of Criminal Procedure:
- The leadership of the investigating authority has the right to give consent to initiate, before the consideration of the case by the judicial authorities, an application for extension, election, some change or absolute cancellation of the preventive measure or for the execution of another procedural operation, which is permissible in accordance with the court decision. In addition, it is vested with the full right to conduct personal interrogation in respect of the accused or suspect, with the exception of taking the case to his own proceedings during the consideration of the issue related to giving consent to the investigator regarding the initiation of the said petition before the case is opened in court.
- In accordance with Art. 39 Code of Criminal Procedure with the latest changes the leadership of the investigating authority is empowered to give permission for recusals that are considered declared to the investigator, as well as for his recusals.
- It can completely remove the investigator in terms of continuing his investigation when the second is in violation of the rules and requirements of the current Code.
- The head has the right to cancel unreasonable or completely illegal decisions of a lower person in the manner established by the current Code.
- In accordance with Art. 39 Code of Criminal Procedure he may extend the period of the preliminary investigation in relation to a crime.
- The leadership of the investigating authority is empowered to approve the investigator’s resolution regarding the termination of proceedings related to a particular criminal case, as well as in terms of the protection of the state.
What other powers does the head have?
In accordance with Art. 39 Code of Criminal Procedure The leadership of the investigating authority is vested with the following powers:
- Confirmation of his own consent to the investigator who conducted the preliminary investigation in relation to a specific criminal case against the appeal of the prosecutor’s decision made under paragraph 2 of the first part of Article 221 of the current Code in the manner established by the fourth part of Article 221 of the current Code.
- The return of a case to the investigator with his own instructions regarding the production of an investigation of an additional nature.
- By Art. 39 Code of Criminal Procedure the leadership of the investigating authority must exercise other powers that are provided for by this Code.
Paragraphs 2 and 3 of Article 39 of the Code of Criminal Procedure
At the present stage of the development of law, the leadership of the investigating authority is vested with the absolute right to initiate a new case in the manner prescribed by the current Code, to accept a criminal case to its own proceedings, as well as to conduct a preliminary investigation in full. Moreover, he has the authority of the head of the investigative group or investigator, as provided for in Art. 39 Code of Criminal Procedure.
It is worth noting that the instructions of the official in question relating to the criminal case are given in writing. They are binding on the investigator. It is interesting to know that these instructions can be appealed directly to the head of a higher investigative structure. However, this appeal does not suspend the implementation of the directions. The exception is cases where they relate to the seizure and further transfer of the criminal case to another investigator, the involvement of the person as the accused, the scope of the charge, qualification of the crime, the choice of a measure of restraint, the conduct of investigative operations (allowed only by decision of the judicial authorities), as well as the direction of the case to the judiciary or its termination. In this case, the investigator is vested with the absolute right to submit criminal case materials and a written objection to the instructions of his immediate supervisor to the leadership of the higher investigating authority in accordance with Art. 39 Code of Criminal Procedure.
Examination of prosecutorial requirements
You need to know that the leadership of the investigating authority can consider the requirements of the prosecutor related to the cancellation of an unreasonable or illegal resolution of the investigator, as well as to the elimination of other violations of federal legislative acts committed during the trial, for a period not exceeding five days. By the way, the investigator’s written objections to certain requirements are examined in the same way.
You need to know that in accordance with h. 2 tbsp. 39 Code of Criminal Procedure The powers of the leadership of the investigative body are exercised by the Chairman of the RF Committee, the leadership of the investigative bodies of the RF Investigative Committee for regions, constituent entities of the country, cities, as well as their deputies and the leadership of the investigative bodies of certain federal executive authorities and so on.
Actual comments
In this chapter it would be appropriate to consider Art. 39 Code of Criminal Procedure with comments. In accordance with the definition, the leading person of the investigative body today is the official who heads this or that investigative unit. In addition, in the fifth part of the current topic, the article contains a basic list of officials who have the procedural powers of a listed participant in pre-trial proceedings related to criminal cases.So, in its final part contains a wording that refers to the leaders of the three systems formed in accordance with the vertical principle. Among them are the following items:
- Federal Security Agencies.
- The internal affairs bodies.
- Bodies controlling the circulation of psychotropic substances and narcotic drugs.
Wording flaw
If you rely on the wording given in h. 1 tbsp. 39 Code of Criminal Procedure, you can notice a significant logical flaw. It consists in the fact that in the definition of the concept of "division" and "organ" are fully identified. But the body is nothing more than an independent element of the system of the investigative department. It is important to note that under the jurisdiction of the latter there is a strictly identified territory, a section of a water, air or railway track, or an object that is under special protection. Under the unit should be understood the structural part of such an element, relatively isolated inside the body in accordance with a functional or some other sign.
The flaw presented became the predestination of a situation in which control in investigative bodies, which is of a procedural nature, is exercised by the leadership, whose members are each other in relations of subordination and power. It is precisely because of this provision that control is likened to managing a large motorized rifle brigade. And this is completely alien to the real features of justice, where the terms "management" and "boss" have no place at all.
Art. 39 Code of Criminal Procedure with comments
It would be advisable to note that the norm, enshrined by clause 2.1 of the first part of the article under consideration, to which the Code of Criminal Procedure was supplemented only at the end of 2010, in terms of the theoretical meaning of constitutional criminal procedure relations in the field of law seems to have no legal meaning. When a criminal case is adopted on the basis of legislation for its own proceedings, the investigator of absolutely any agency, as a rule, assumes all procedural duties, responsibilities, and rights. This also includes the part that is predetermined by the decisions of its predecessor investigators in accordance with part 1 tbsp. 39 Code of Criminal Procedure. Finding any decision of a procedural nature, acting on unreasonable and illegal grounds in this case so far, the investigator has the right and even undertakes to make a decision regarding its cancellation personally. Moreover, he does not need to reckon with the departmental affiliation of a “not his” investigator (he is also the author of the corresponding decision, which is of a procedural nature) or with a rank. As a rule, in this case, the investigator includes the relevant previously defined procedure of the Code of Criminal Procedure, for example, the abolition of the measure of procedural coercion, the change of the charge, the presentation of a new charge (and thereby the abolition of the former), the absolute termination of the criminal prosecution (even with full rehabilitation) , satisfaction of the petition of the defense on the appointment of an examination or other investigative operations, and so on.
In accordance with Art. 39 Code of Criminal Procedure (2016), when a given investigator does not have such powerful authority under the law, he needs to raise a question related to the cancellation of a decision of a predecessor by the authorities of the current authorities of the investigating authority, prosecutor or court, whose jurisdiction is somehow related to these legal relations.
Contradiction!
The provision, which is contained in the fifth part of the article under review, suggests that the chairman of the Investigative Committee, as well as senior management of investigative departmental apparatuses, determine the "scope of the procedural nature of authority" of the leadership of investigative bodies subordinate to him.This provision, one way or another, is in obvious contradiction with the fundamental principle of criminal law (part 1 of article 1 of the CPC), according to which "the procedure for criminal proceedings in the Russian Federation is determined by the current Code, which is based on the Constitution of the Russian Federation."
It is important to know that the scope of powers involved in criminal activity that is of a procedural nature (in other words, a procedural provision) is nothing but the most important component of this order. This amount may be established solely by the Code of Criminal Procedure. Thus, individual heads of investigative bodies (and their position is unambiguous in accordance with this Code) are endowed with some differences only in terms of legal jurisdiction (under article 151 of the Code of Criminal Procedure of the Russian Federation). By the way, there are no participants in the criminal process who are unambiguously named in the law (investigator, prosecutor, expert, interrogator, witness, etc.) and are endowed with different procedural provisions, by definition, and cannot be.
Comments on paragraphs 5 and 6 of the current article
In accordance with the content of the commented article of the Code of Criminal Procedure, the procedural powers of the leadership of the investigative body are comprehensive and enormous. It is important to note that in such an unimaginable volume they were formed due to the reform of the prosecutor's office of the Russian Federation, which took place on the basis of the above Federal Law related to the additions and amendments to the Code of Criminal Procedure of the Russian Federation and the Federal Law “On the Prosecutor's Office of the Russian Federation”. So, these reforms included very broad opportunities for the leadership of the investigating authority to participate in the preliminary investigation; management related to criminal cases that are in the proceedings of investigators who are subordinates; supervision of the proper execution of federal laws in pre-trial proceedings.
It is important to know that the figure of a separate head of the investigative departmental unit, in the criminal procedure sense, defined as subject, refers to purely Russian phenomena. So, in the classical theory relating to criminal procedural relations, in a legal democratic state, it fits very unsuccessfully. This means that the supervision of the criminal process (in other words, justice in accordance with its genetic nature) is carried out by an official who belongs to the state executive power, or an official who is in the same state militarized extrajudicial service as the supervised one; dressed in the same uniform; connected with the relations of officer subordination and authority directly with the supervised one; receiving the appropriate monetary content (the same cash register takes place here). It is necessary to add that their personal files are in the same personnel department.
One such leader is an officer of the paramilitary police department, which is independent in nature. The second leader is the counterintelligence. The role of the third chief is played by an official holding the rank of officer of justice, but only in the case of the detective department (MIA). The fourth is the "drug police." It should be noted that the assessment of the presented phenomenon has to be given to practical activities that are relevant during the various periods of existence of the category in question, as well as to the historical process in which time is estimated not only for decades, but also for centuries, which today plays an important role.