Legal science

d. yu.n. Melnikov V. Yu.

 Southern Federal University, Russia

 

 

HISTORICAL ISSUES OF THE INQUIRY

 

        Today, it requires no further argument to the conclusion that on the facts, without exception, all criminal offenses to the preliminary investigation form is difficult and impractical. At the same time, in cases where the offence is committed in terms of evidence concerning the circumstances of the Commission of crimes is not difficult, but a crime in itself does not represent big public danger, the need for a lengthy process of preliminary investigation in the inquiry form there.

      The reasons for the decision on the investigation was previously disclosed in the art. 253 the Charter of criminal proceedings (1864): "when the crime or offence is doubtful, or when an incident with a police guard by ear (popular rumor), or even from the source is not completely reliable, but in any case, before the assertion, it must verify using the inquiry: whether the incident happened and whether there are signs of a crime or misdemeanor." From the investigation, the police were obliged to convey to the coroner, he was subsequently obliged to report and all additional information collected by her on the same matter (article 255 of the Constitution).

      Analysis of the investigation of this period allows to make a conclusion about its proximity to the modern procedure of the preliminary investigation of a crime report. The objective of the investigation is, in fact, was to check the validity of the incident and to install, or are there signs of a crime or has committed a criminal offence. The purpose of the police investigation was to collect and bring to the judiciary about the need for a judicial inquiry and consideration of criminal cases.

      At the end of the XIX century B. Brazol  said that only the most serious crimes, remain in the competence of the forensic investigators. In all cases other crimes, the preliminary investigation can be replaced by a police investigation. Forensic investigators were at the police report and inquiry only on such crimes that have suspects[1, p. 98].

      Describing the order and manner of the police inquiry, I. Y. Foinitsky wrote that "the law avoids to regulate with precision ... for him, not to hamper the police in these activities, in fact, require quick and appropriate, accordingly to changing circumstances" [2, p. 379-380].

      Preliminary investigation, inquiry becomes in the USSR in 1924, when the decision on registration in art 108 of the criminal procedure code of the Russian Federation of changes, in accordance with which they share jurisdiction of criminal cases between the bodies of preliminary investigation and inquiry. For bodies of inquiry remained a function of the production turndown of the investigation, but the list is limited to inspection, search and examination.

     The Prosecutor's office in accordance with article 59 of the Regulations on the judicial system of the RSFSR of 1926 was appointed only "General supervision over the activities of inquiry in the field of search and investigation." Only after the ruling on the supervision of the Prosecutor's office of the USSR, approved by decree of the Presidium of the Supreme Soviet of the USSR from 24.05.1955 G. supervision over activities of inquiry submitted to the Prosecutor.

       From 01.03.1985 was submitted to the Protocol of the trial preparation materials [3]. This form of investigation has received an overall positive assessment, both scientists and practitioners [4, p. 39-40, 21-24]. According to Protocol form of pre-trial preparation of materials by the investigative bodies for just 10 days was sent to the court each year from 1992 to 2001, from 255 to 374 thousand criminal cases.

 Although the overall efficiency, according to the author, the Protocol form of pre-trial preparation of materials of the criminal procedural code were excluded for reasons of actual absence during the period of the investigation, the participants in the process: the suspect, accused, victim and other persons of procedural rights that appear at the end of the investigator, body of inquiry to investigate the circumstances of the crime.

 Contributed to the development of legal solutions and provisions of the concept of judicial reform in the Russian Federation about necessity of elimination of inquiries as a special form of the investigation and the proposal to hold the bodies of inquiry, only the production of urgent investigative actions in the shortest possible time the stage of preliminary investigation. Code of criminal procedure, giving the body of inquiry the right to conduct a preliminary investigation in the inquiry form for a specific category of criminal cases, made even more confusion in the relations of the parties of criminal proceedings (article 150 of the criminal procedure code of the Russian Federation).

      The number of criminal cases under investigation, is sufficiently large. Thus, according to the interior Ministry, in the first half of 2016, the investigation in the form of inquiry was conducted 624,7 thousand criminal cases, which accounted for 47% of the total. It was revealed 424,7 thousand crimes, for which a preliminary investigation is optional (+6,3%) [5].

       Federal law of June 6, 2007 ¹ 90-FZ the number of participants in criminal proceedings the prosecution introduced the figure of the chief of division of inquiry, article 5 of the code of criminal procedure supplemented by paragraph 17.1, which establishes the concept of appropriate and Chapter 6 of the criminal procedure code supplemented by article 40.1 of the "chief inquiry". The Federal law from December 30, 2015 No. 440-ÔÇ2 in Code introduced article 40.2 "chief of body of inquiry", which defines the procedural status.

      The Federal law of 04.03.2013 ¹ 23-FZ "On amending articles 62 and 303 of the Criminal code and the Criminal procedure code of the Russian Federation" established short-term production inquiry (Chapter 321, code of criminal procedure). The law obliges to produce only those investigative and other procedural actions, not the production which may entail an irreparable loss of evidence or other evidence. Taking into account the specific circumstances of the criminal case the investigator has the right to test the evidence if they were not challenged by the suspect, its defender, the victim or his representative (although this may be due to a temporary tactic of protecting them).

       The investigator cannot perform any other investigative and procedural actions aimed at establishing the actual circumstances, details of which are contained in materials of check of the message on a crime if such data meet the requirements of the code of criminal procedure evidence. The investigator, being a man of independent judiciary (part 3 of article 41 of the code of criminal procedure), you should not rely on the position of the suspect, his counsel, the victim or his representative.

 

        

                                                   Bibliography

                                     

1  B. Brazol  Investigative unit. – SPb., 1914. – T. 2. – S. 98.

2 Foinitsky I. Y. Course of criminal proceedings. – SPb.; Alpha, 1996. – T. 2. – S. 379-380.

3 the Decree of the Presidium of the Supreme Soviet of the RSFSR on 24.01.1985 of the year "On introducing amendments and addenda to the Criminal procedural and Civil procedural codes of RSFSR" // Vedomosti of the Supreme Soviet of the RSFSR. – 1985. – ¹. 5. – St. 163.

4 Bagautdinov F. N. Mukhamedzyanov, I. S. Protocol form of pre-trial preparation of materials // Legality. – 2000. –¹ 8. S. 21-24.

5. Official website of the Ministry of internal Affairs of the Russian Federation https://mvd.rf/upload/site1/document_news/008/306/504/sb_1607.pdf. Date of access 21.11.2016.