Article 38 of the Code of Criminal Procedure of the Russian Federation: powers of the investigator in criminal proceedings

Crimes are committed every day in the country.
It is up to the investigator to find the culprit and restore justice. A representative of the law must have a set of qualities and skills that allow him to find the culprit of the incident and find out the motive for the crime. All of them are regulated by law (Article 38 of the Code of Criminal Procedure). Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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What is Article 38 of the Code of Criminal Procedure about?

The concept of the position of “investigator” is disclosed in Art. 38 Code of Criminal Procedure of the Russian Federation. According to the Code of Criminal Procedure in the latest edition, an investigator is an official empowered to conduct investigative actions within the framework of his competence provided for by the Code of Criminal Procedure.

The main powers of the investigator in criminal proceedings are described in Art. 38 code.

The investigator has the right:

Initiate a criminal case.
Conduct a criminal case and resolve all issues related to the case, take appropriate measures.
Determine the course of the investigation individually and decide on investigative actions. The exception is cases when it is necessary to obtain the consent of the court or higher management.
Issue a written instruction to the inquiry authorities to carry out a set of investigative measures.
Take part in court hearings.
Issue a decision to detain, prosecute, arrest, or conduct procedural actions.
Appeal the prosecutor's decision, cancel the decision to initiate a criminal case, return the criminal case for further investigation, change the charged article or reclassify the defendant's actions, eliminate shortcomings identified during the investigation.
Send your objections in writing to the head of the investigative department regarding any disagreements with the actions of the prosecutor that are contrary to current legislation.

The investigator’s actions are aimed at ensuring law and order in society and eliminating the threat to the country’s population.

Personal qualities of an investigator include:

Analytical mind;
logical thinking;
the ability to correctly and accurately present facts;
ability to think quickly in stressful situations;
the ability to defend one’s point of view and present arguments.

Knowledge of the law and the ability to build a logical chain of events is a distinctive feature of a qualified law enforcement officer.

Features of the tap

In order for a recusal application to be satisfied, it must contain true and factually accurate information that directly indicates the investigator’s personal interest in the outcome of the case or his family ties with interested citizens.
Versions about the interest of a government representative that are not supported by compelling arguments cannot be considered as a basis for disqualifying an investigator in a criminal case. This is also due to the fact that the accused person who has committed illegal actions will try to undermine confidence in the investigator in order to be removed from the investigation.

The legislation deliberately complicates the legal norms containing the grounds for disqualifying an official. Thanks to this, the possibility of groundless removal of the investigator is eliminated, which creates a potential threat of exposing and bringing to justice a criminal person.

This is of great importance for the investigation of offenses related to corruption, many episodic criminal cases, as well as crimes in which a large number of defendants take part.

To justify the removal of an investigator, information about the actions of the official himself may be used. For example, he voiced a demand to a suspect to confess to an atrocity committed by another person, and the official knew about it.

Such actions of the investigator must be supported by objective evidence:

voice recordings;
testimony;
entry in the protocol, etc.

Of interest are cases where the head of the investigative committee, prosecutor or judge recognized the illegality of the measures taken by the investigator. It follows from this that the basis for disqualifying an investigator in an ongoing criminal case will be the illegality of the official’s actions. Here it is necessary to distinguish between concepts such as “deliberate violation of the law” and “investigative error”.

Even professionals make mistakes. The investigator's mistake is corrected by the actions of the court, prosecutor or head of the investigative agency.

However, only a deliberate and severe violation of the law can be considered as a personal interest of an official in the outcome of the case.

During the investigation of such a crime, biased actions of a witness who could have obtained basic information from the materials of the investigative audit may be perceived.

The investigator is required to recuse himself if he is also an eyewitness to the crime.

Comment on the article

Let's briefly look at the main points:

All requests, orders and resolutions issued by the investigator within the framework of the current legislation must be unquestioningly carried out by enterprises, companies, budgetary institutions, and officials to whom they are addressed (Article 21 part 4 of the Code of Criminal Procedure).
The commented article describes the responsibilities assigned to the investigator when identifying actions that violate the law. In the event of an offense, the investigator must take measures to eliminate the fact of the crime, identify those responsible for the crime, receive and verify information about the impending offense (terrorist attack, conspiracy) within his competence, make a decision regarding its prevention, make a decision regarding the termination of criminal prosecution, or otherwise decision regarding the action that took place.
Unlike the bodies of inquiry, the investigator does not have the right to take operational investigative measures (Article 40 of the Code), but he has powers that are not within the competence of the investigator.
The investigator has the right to express his disagreement with the prosecutor regarding his comments regarding errors identified during the preliminary investigation or his removal from the case. He may submit his objections in writing to the head of the investigative department, who will inform the prosecutor about the objections raised by the investigator. The head of the investigative department studies all the demands and objections put forward, and makes a decision on the implementation (non-execution) of them. At the same time, informing the investigator and the prosecutor about his decision.
The sledak (colloquial version of the job title) must unquestioningly follow all orders and instructions from senior management. But if the investigator has a different opinion regarding the conduct of the investigation, he has the right to defend it.
The investigator may, without waiting for the necessary actions to be carried out by the investigative bodies (Article 157 of the Code of Criminal Procedure), begin a preliminary investigation into an offense (in cases where a preliminary investigation is a prerequisite);
Has the right to give instructions to the investigator regarding the conduct of the investigation or operational-search activities.
An order is a written request to carry out certain actions (operational or investigative). The instruction acts as an addition to the order and provides an explanation of what needs to be done to fulfill the order.
The order indicates the deadline for its execution, and it cannot be violated, since there are situations when it is necessary to simultaneously carry out investigative actions (searches). Delay in execution of an order may disrupt the entire course of the investigation.
If the order does not indicate the period for carrying out investigative measures, in accordance with paragraph 1 of Art. 152 of the Code of Criminal Procedure, all necessary measures must be carried out within 10 days.
For each order of the investigator, he must be sent a written response from the responsible person.

All orders and instructions are given by the investigator in writing and must have a response from an authorized person about the measures taken to implement them.

The investigator's orders can be of several types:

Conducting operational search activities by the investigator.
Involvement of the inquiry authorities in carrying out certain investigative actions.
Taking additional measures to conduct the investigation (environment and its security).
Detention of the defendant if such a decision is made by the court.
Resolution on arrest, detention or other procedural actions.

The investigator's instructions may be of a different nature, but must be followed strictly as prescribed.

The order (instruction) must contain the following information:

the name of the inquiry body to which the order was sent;
details of the person (name, surname, position) who gave the order;
grounds for issuing an order (link to an article of the procedural code);
the essence of the order (issues that require detail);
sequence of execution of instructions;
advice on how to behave in order to obtain certain information;
deadline for execution of the instruction;
information about where to obtain supporting clarification regarding the assigned tasks.

If the order does not indicate the time for its execution, then it must be executed within ten days.

The investigator in criminal proceedings is guided by the Code of Action and other legal acts.
He must solve crimes in the ways and means described by the Code of Criminal Procedure. The law states that the investigator must find out all actions and facts that require proof, ensure a comprehensive and objective investigation and get to the truth. According to the changes of 2007, the possibility of influence of the prosecutor on the investigator is significantly limited. In turn, the capabilities of the investigative department have been expanded. During the investigation, the investigator can serve as the head of the investigation team and give instructions to the investigative bodies.

Another task of the investigator is to warn against committing a crime. This means explaining all negative consequences to all citizens involved in the investigation. It also restores the rights of persons undeservedly brought to justice.

Review and resolution of communications by special bodies

In criminal proceedings, the powers of investigators of each specialized prosecutor's office to initiate cases of criminal offenses are exercised on the basis of Order of the prosecutor's office at the federal level No. 54 of September 9, 2002, delimiting the competence of territorial, military and other specialized prosecutor's offices.

The responsibility of investigators belonging to the military prosecutor's office includes the initiation of criminal cases of crimes committed by the following categories of people:

Military personnel.
Persons undergoing military training.
Civilian personnel belonging to the Armed Forces of the Russian Federation.
People belonging to other troops or military-type formations and bodies that are created in accordance with federal laws.
Persons whose activities are related to work on the territory of military units, formations or institutions.

The powers in criminal proceedings of investigators assigned to the closed territorial units of Mezhgorye and the Baikonur complex extend to all crimes that were committed within these territorial units, excluding crimes of military personnel and other persons falling under the jurisdiction of military investigators.

The functions and powers in criminal proceedings of investigators of territorial and transport authorities involved in internal affairs are determined by the joint Directive of the General Prosecutor's Office, the Ministry of Railways and the Ministry of Internal Affairs, which regulates the procedure for responding to detected signs of criminal offenses and the procedure for considering messages and statements regarding the theft of goods.

Cases from judicial practice

Let us consider cases of judicial practice under this article.

Lawyer B. filed a complaint with the court against the investigator’s decision to put citizen K. on the wanted list. The applicant claims that the decision made is unfounded, since the investigator has no evidence that citizen K. is hiding from the investigation. The suspect and her lawyer were not properly notified of the investigative measures. There are no documents confirming the summons to the investigative committee. There is also no confirmation that the investigator tried to establish the whereabouts of citizen K. In this totality, the investigator had no reason to put citizen K on the wanted list. The suspect did not hide from the investigation, but was treated in a hospital, which is supported by certificates. After studying all the documents, the judge dismissed the complaint. The court found that all the necessary measures to establish the whereabouts of citizen K. were taken, but the arrest order was not executed, since the latter was absent from her place of registration, which was qualified as evasion of the investigation. The decision made was recognized as legal, since, according to Art. 38 of the Code of Criminal Procedure, it was issued by an authorized person in compliance with all legislative norms, falls within his competence and has all the grounds.

Citizen Ivanov was sentenced by court decision No.* to 2 years under Part 1 of Art. 109 of the Criminal Code with the following restrictions: undertaking not to leave the republic, impossibility of changing place of work or residence without the consent of regulatory authorities, he cannot attend cultural events, he must report to a specialized government agency once a month. The accused also paid victim B. a fine for moral damage in the amount of... rubles.

Victim B., with the support of her lawyer, filed a complaint with several additions against court decision No.*. The victim considers the court decision illegal and demands its cancellation. Since in the conclusion of the expert commission the question of the presence/absence of criminal intent in committing a crime was not raised, which, in turn, does not allow us to draw a conclusion about the negligence of citizen Ivanov’s actions. The investigator deliberately reclassified the defendant's case to Part 1 of Art. 109 of the Criminal Code of the Russian Federation. The case clearly states that Ivanov deliberately struck the son of citizen B. in the face, which resulted in death. During the preliminary investigation, the investigator did not conduct an investigative experiment with Ivanov to establish all the circumstances: the force of the blow, the distance between the conflicting parties, the location of witnesses. According to eyewitnesses, Ivanov was drunk, but there is not a single expert report confirming this fact.

When the identity of the guilty person was established, the police officers were negligent in their duties and did not go to arrest him. Before turning himself in to the police station, Ivanov had time to come up with a new version of everything that happened. The suspect claims that citizen M. attacked him, and witnesses claim the opposite.

After beating Gr.M., Ivanov did not call an ambulance and did not examine the victim, but left him to die, leaving the crime scene in his car. The defendant should have foreseen the consequences of his blow. These facts were not taken into account by either the investigator or the court of first instance. Ivanov’s actions provoked the death of victim B’s son. This fact was also not taken into account by the court. During the trial, from the words of witness P., it was established that all the witnesses were brought to the investigative committee by Ivanov’s relatives, this indicates that the necessary conversation was held with them. In turn, witness N. denies this fact. Citizen B. claims that the investigation itself was carried out with violations: the time of the blow, its strength, and the area of impact were not established.

The prosecutor was initially opposed to citizen B. and defended Ivanov. The questions asked of the witnesses at the first hearing were vague, imprecisely worded and contained an answer in their wording. The prosecutor supported all the defendant's motions, for which he received a reprimand from the judge leading the case. He did not support his clients’ requests to return the case for further investigation and reclassify the article. I did not agree with the judge’s verdict on compensation for material damage, although there were all the receipts indicating the date and cost of the services provided.

Having studied all the materials of the case, the court decided that all evidence of Ivanov’s guilt was collected in compliance with all requirements. All necessary circumstances of significance have been identified in the case. The conclusions of the examinations coincide in time and circumstances with the data indicated by the defendant and witnesses.

Regarding the arguments of the complaint that the investigator did not conduct an investigative experiment, it is indicated that in accordance with paragraph 3 of Part 2 of Art. 38, the investigator has the right to independently determine the course of the investigation and make a decision on whether or not to carry out investigative actions. The court denies the bias of the investigation, since, according to the Code of Criminal Procedure, the time and place of the incident, the method and other necessary information about the crime committed were established.

When determining the punishment, the nature and degree of threat to society and all aggravating and mitigating circumstances were taken into account. Violations of the Code of Criminal Procedure or the law that would contribute to the reversal of the sentence by a lower court are not allowed. The court decided to dismiss the complaint and leave the sentence unchanged.

What to do if you receive a refusal

If the applicant was denied access to the investigator's office, he must submit an application to the prosecutor's office.
The application must describe the current situation as accurately and in detail as possible and attach supporting documents to it. The application must contain a compelling and reasonable reason why the case needs to be transferred to another investigator.

If there is no result, the application is submitted:

to the regional prosecutor's office;
then to the Deputy Prosecutor General of a specific federal district.

Situations in which an investigator is removed from criminal proceedings due to violations committed by him occur in practice. On the contrary, the satisfaction of a defense request to remove an official is the exception rather than the rule. Thus, the rules of the Code of Criminal Procedure governing the challenge procedure should not be abused.

What the law says

The procedure for challenging an investigator is described in Articles 61, 62, 67 of Chapter 8 of the Code of Criminal Procedure in the new edition (previously, the Code of Criminal Procedure of the RSFSR was in force as amended on December 29, 2001, which contained a similar procedure for challenge).

In Art. 67 of the new Code of Criminal Procedure says:

The investigator may be removed from the case by order of the leadership of the investigative committee. The decision regarding the investigator is made by the prosecutor.
The second paragraph of this article states that past participation in the preliminary investigation in a specific case cannot become a reason for the removal of this person.

However, in reality, these norms are implemented infrequently, since the legislator did not describe the procedure itself clearly enough. In this regard, considerable problems often arise.

The text of the Code of Criminal Procedure provides a list of situations that may lead to removal:

The investigator appears in the case as a victim, applicant or defendant.
The government representative is related to the injured citizen, applicant or respondent.
In situations where, as a result of a lengthy investigation or lengthy trial, an investigator within the same case is appointed to a different position or becomes a defendant in a different category. For example, he moves into the category of witnesses, becomes a judge, lawyer, expert, etc.
The investigator (prosecutor) or members of their families have a personal interest in the outcome of a particular criminal case or there is other irrefutable evidence of the impartial conduct of the criminal case.

The last point allows one to operate with rather free interpretations for stating the reasons for recusal. This is explained by the fact that it is impossible to accurately describe in one document every case previously encountered in criminal and judicial practice.

The last paragraph allows you to use the right of challenge in any situation not described in the Code of Criminal Procedure.

Most often, the fourth point refers to cases in which the supervisory authority or the injured party may have doubts about the fairness of the investigator and his disinterest in the final result of the investigation. For example, if the suspect and the official previously had a conflict, or there is personal hostility, or the investigator is an acquaintance of the accused.

Criticism

Prosecutor General of the Russian Federation Yuri Chaika is a well-known critic of the investigation[2], so in 2022, he, having expressed his solidarity with Putin in criticizing the “investigative authorities” in general[3], said the following about investigators in particular[4]:

“Unfortunately, for many of our investigators, criminal procedural legislation and substantive law are space. If 20-25 years ago an investigator and a criminal were a battle of intellects and who would outplay whom, now everything is very simple - a pre-trial detention center and a special procedure for consideration. Today, up to 70% of cases are considered in a special manner. And the investigator degrades; he believes that he can react in the same way to the legitimate demands of prosecutors, unfortunately,” said Chaika.”

— Prosecutor General of the Russian Federation Yuri Chaika, TASS dated February 21, 2022.

Earlier, at the expanded board of the General Prosecutor's Office, Russian President Putin, drawing attention to the low professional level of Russian investigators[5], said that “investigators and interrogators in cases considered in a special order, as is known, simplify their work to the limit.”