The concept and significance of the stage of initiating a criminal case
The Constitution of the Russian Federation allows for the possibility of implementing the norms of criminal proceedings only in cases where there are signs of a crime.
The legislator has determined that the investigation of a crime begins at the stage of initiating a criminal case.
The stage of initiating a criminal case is the first stage of the criminal process.
At this stage, the authorized bodies of the state and officials, having received information about a crime committed or being prepared, establish the presence or absence of grounds for criminal proceedings and make a decision to initiate a criminal case or to refuse to initiate a criminal case.
Like any other stage of the criminal process, the initiation of a criminal case is characterized by its immediate tasks, a special circle of subjects, its own procedural form, terms of production, special final decisions and procedural stages.
The task of the stage of initiating a criminal case. The task of the stage of initiating a criminal case is to begin a timely investigation into a crime committed or being prepared, since a late response to information about a crime can lead to the loss of evidence, which can seriously complicate the investigation or even doom it to failure.
The essence of the stage of initiating a criminal case. The essence of this stage is that the body of inquiry, the inquirer and the investigator, having established signs of a crime in the event about which they have become aware, are obliged to make a procedural decision to initiate a criminal case and begin criminal proceedings. In other words, at the stage of initiating a criminal case, a decision is made to begin compulsory procedural activities, the results of which will serve as material for the trial (Articles 146, 147 of the Code of Criminal Procedure of the Russian Federation).
If there are no sufficient grounds for signs of a crime, or circumstances are identified that exclude proceedings in the case, then the preliminary investigation body makes a decision to refuse to initiate a criminal case (Part 1 of Article 148 of the Code of Criminal Procedure of the Russian Federation). These two types of decisions complete the stage of initiating a criminal case.
The importance of the stage of initiating a criminal case. The significance of this stage of the criminal process lies in the fact that the timely and justified initiation of criminal cases has great preventive and educational significance, since it helps strengthen the population’s conviction in the inevitability of punishment, the fairness of the legislation, the appropriate level of crime control, and the reliability of law enforcement agencies protecting the interests of citizens and the state from criminal attacks. Proceedings based on statements and reports of crimes is a kind of filter that allows authorized government bodies to separate a crime from a misdemeanor, decide on the need to conduct an investigation or refuse to initiate a criminal case. Therefore, the initiation of a criminal case without sufficient grounds, as well as the unreasonable refusal to initiate a criminal case, are not only gross violations of the law, but also lead to a waste of efforts and resources of law enforcement agencies and to the creation of excessive burden in their work.
Reasons and grounds for initiating a criminal case
To initiate a criminal case, the simultaneous presence of two components is necessary: a legal reason and sufficient grounds.
Reason for initiating a criminal case. The grounds for initiating a criminal case should be understood as a message about a crime received from a source provided for by procedural law, the receipt of which obliges the preliminary investigation authorities (and in cases of private prosecution, the judge) to begin procedural activities (Clause 43, Article 5, Art. Art. 140-143 Code of Criminal Procedure of the Russian Federation).
In Part 1 of Art. 140 of the Code of Criminal Procedure of the Russian Federation provides for four reasons for initiating a criminal case.
The first reason for initiating a criminal case in accordance with paragraph 1 of Part 1 of Art. 140 of the Code of Criminal Procedure of the Russian Federation is a statement of a crime. A statement about a crime is an official message addressed to the competent authorities or a court about a crime committed or being prepared, certified in a certain way.
Reporting a crime is the most common reason addressed to the competent authorities.
An allegation of a crime can come from either a private person or an official. For example, an appeal by the head of a commercial organization with a request to bring to criminal liability for a crime against the interests of a service in a commercial organization is regarded as a statement of crime.
An anonymous statement cannot serve as a basis for initiating a criminal case. Anonymous statements are verified through operational investigative measures or other non-procedural means.
In accordance with Part 1 of Art. 141 of the Code of Criminal Procedure of the Russian Federation, a statement of a crime can be reported orally or in writing. The written application must be signed by the applicant. An oral statement must be entered into the minutes. The protocol must contain information about the applicant and documents identifying the applicant. In accordance with Part 6 of Art. 141 of the Code of Criminal Procedure of the Russian Federation, the applicant must be warned of criminal liability for knowingly false denunciation in accordance with Art. 306 of the Criminal Code of the Russian Federation, about which a note is made in the protocol, which is certified by his signature. At the same time, the applicant is also explained the provisions of Article 51 of the Constitution of the Russian Federation that he is not obliged to testify against himself, his spouse and close relatives.
The statement reflects information about the crime, at the end of the protocol a note is made about whether it was read personally or aloud by the person who accepted the statement, whether the applicant’s words were correctly recorded, the content of the comments or an indication of their absence. The protocol is also signed by the person who accepted the application.
If a report of a crime is made during an investigative action or during a trial, it is entered, respectively, in the protocol of the investigative action or the protocol of the court session. In this case, a separate protocol for accepting the oral statement is not drawn up. As a general rule, reporting a crime committed or being prepared is a right and not a duty of citizens, however, under certain circumstances, the legislator provides for the obligation of citizens, under pain of criminal liability, to inform the preliminary investigation authorities about particularly serious crimes being prepared or committed that they know of (Article 316 of the Criminal Code RF).
Due to the principle of publicity of the criminal process, the competent authorities of the state and authorized officials in each case of detection of signs of a crime are obliged to initiate a criminal case, regardless of the will of the victim. The only exceptions are cases of private and private-public prosecution.
A type of statement about a crime in accordance with clause 1-1 of Part 1 of Article 140 of the Code of Criminal Procedure of the Russian Federation is the sending by officials of the Central Bank of the Russian Federation or bankruptcy trustees (liquidators) of financial organizations of materials to the preliminary investigation body to resolve the issue of initiating a criminal case for crimes , provided for in Article 172.1 of the Criminal Code of the Russian Federation.
The second reason for initiating a criminal case is a confession, provided for in paragraph 2 of part 1 of Art. 140, art. 142 of the Code of Criminal Procedure of the Russian Federation. It is a voluntary report of a person who has applied to the body of inquiry or preliminary investigation about the crime he has committed.
Confession is one of the types of positive behavior of a person who has committed a crime. The received message is subject to careful verification and critical evaluation, in order to exclude unlawful pressure on the person who has announced his confession.
A statement of confession can be made either orally or in writing. The written application is signed by the applicant. An oral statement is accepted and entered into the protocol by an authorized official in the manner established by Part 3 of Article 141 of the Code of Criminal Procedure of the Russian Federation. At the end of the protocol, it is noted whether it was read personally or aloud by the person who accepted the confession, whether it was recorded correctly or incorrectly from the applicant’s words, and comments to the protocol are noted (the content of the comments or an indication of their absence). The protocol is signed by the person who confessed and the person who accepted the statement.
The third reason for initiating a criminal case is a message about a committed or impending crime received from other sources, which is provided for in paragraph 3 of Part 1 of Art. 140 Code of Criminal Procedure of the Russian Federation. Due to the fact that a statement of crime and a confession are identified by law as independent reasons, we can conclude that the third reason for initiating a criminal case is any information about a committed or impending crime, procedurally documented in a report on the discovery of signs of a crime.
Other sources may be any sources of information, except for those specified in Art. Art. 141 and 142 of the Code of Criminal Procedure of the Russian Federation. This is the direct detection of signs of a crime by the inquiry body, the inquiry officer, the head of the inquiry unit, the investigator, the head of the investigative body, the prosecutor or the court. These signs can be detected during investigative actions in a criminal case (for example, during an inspection of the scene of an incident, a search, interrogation of a victim, a witness, etc.), when identifying the fact of knowingly giving false testimony by participants in legal proceedings during the consideration of cases in court, during operational investigative activities by the investigative body, and during the performance of official duties by law enforcement officers.
Government decrees, orders, and instructions of a number of ministries and departments define the obligation of heads of institutions, organizations, and enterprises to report the presence, identification, and detection of signs of a crime. Thus, medical institutions are obliged to immediately report to the police about cases of persons being brought to them with bodily injuries, when there is reason to believe that these injuries are of a violent nature.
One of the types of other sources of information should be considered materials (reports, explanations, acts) that document the results of personal observation of a crime by law enforcement officers who happened to be random witnesses to this crime.
The fact of obtaining information about a crime committed or being prepared from the specified sources is documented in a report on the discovery of signs of a crime (Article 143 of the Code of Criminal Procedure of the Russian Federation). This report, as follows from the literal interpretation of the law, is drawn up at the time of receipt of primary information. In some cases, such information, being the result of a specially undertaken check (within the framework of administrative, operational-search, prosecutorial and supervisory activities), contains sufficient data to make a final procedural decision.
The report on the discovery of signs of a crime shall reflect the name of the head of the investigative body or the head of the inquiry body to whom the report is addressed; procedural basis of the report; established circumstances of the committed act and the source of information about it; position, rank, surname and initials of the person who received the message; date, month and year of the report; signature of the official who compiled the report.
In order to exclude cases of concealment of crimes from registration, as well as to correctly calculate the deadlines for making a decision, the compiled report is subject to registration in the book of registration of statements and reports of crimes. In internal affairs bodies, this book is kept in the duty station. After registration, the report is transferred to the head of the preliminary investigation or inquiry body.
The fourth reason for initiating a criminal case is the prosecutor’s decision to send materials to the preliminary investigation body to resolve the issue of criminal prosecution. The prosecutor makes this decision as a result of supervising compliance with the law or considering citizens’ appeals (Article 10 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”).
Merely having a reason to initiate a criminal case is not enough.
To ensure the validity of the investigation, further grounds are required.
Grounds for initiating a criminal case. The basis for initiating a criminal case is the presence of factual data indicating signs of a crime.
In accordance with Part 2 of Art. 140 of the Code of Criminal Procedure of the Russian Federation, a case can be initiated when there is sufficient data indicating signs of a crime.
To detect signs of a crime (that is, grounds for initiating a criminal case), an application or report of a crime is checked.
It is carried out in a non-procedural (including operational) way.
In some cases, a criminal case may be initiated even in the absence of information about these circumstances. Usually it is enough to establish the object and objective side of the crime. In these cases, a criminal case is initiated based on the fact of the crime (in rem), and not against a specific person (in personam), which, however, under certain conditions does not exclude the possibility of initiating a criminal case against a specific person, for example, when a criminal is detained at the scene of a crime , or due to the specifics of the crime (knowingly giving false testimony). In this case, the person against whom a criminal case has been initiated must receive the procedural status of a suspect or accused in the prescribed manner.
The clarification of the act itself and the establishment of elements of a crime in it is undertaken on the basis of the data obtained. It is necessary that there are enough of them for a valid conclusion. Sufficiency of data is achieved by establishing logical connections between them, eliminating contradictions, and supporting circumstances with a set of sources. In each specific case, the sufficiency of data for a reasonable conclusion about the presence of signs of a crime is determined by the authorized official according to his inner conviction. Therefore, each report of a crime must be carefully considered, primary materials carefully studied, analyzed and evaluated, if necessary, explanations are obtained, and additional materials are required.
At the same time, obtaining the necessary data should be limited to the tasks of the stage of initiating a criminal case. The conclusion that a crime has occurred, although it must be based on sufficient evidence, is usually presumptive in nature and prompts a full investigation at the next stage of the process. On the other hand, an unjustified expansion of the limits of verification of a crime report delays the decision to initiate a criminal case and creates conditions for the destruction of traces and concealment of the crime.
Therefore, in order to prevent this stage from being replaced by a preliminary investigation, the legislator limits the possibility of carrying out investigative actions aimed at collecting and verifying evidence and their sources before the initiation of a case, but provides for the possibility of a fairly widespread use of other procedural actions with the help of which it is possible to procedurally consolidate and verify what has been received statement or report of a crime.
Checking a Crime Report: In Search of Lost Time
The provisions of a regulatory legal act are sometimes formulated in such a way that some situations resulting from a certain combination of actions of participants in a legal relationship can no longer be adequately regulated by the original rules, and there are no special rules for such cases. An example is an additional pre-investigation check, the problematic aspects of which we propose to discuss.
The procedure for considering a report of a crime, as well as the types of decisions made based on its results, are determined by Art. 144 and 145 of the Code of Criminal Procedure of the Russian Federation. The Code sets a deadline for conducting a pre-investigation check - 30 days, after which the official is obliged to make a procedural decision. At the same time, the Code of Criminal Procedure provides for the possibility of canceling such a decision, which entails additional verification. However, there are no special provisions devoted to its regulation - in particular, establishing the number of possible cancellations of the decision made, as well as the timing of additional verification - in the law.
This leads to the fact that the provisions of Art. 144 of the Code of Criminal Procedure, and officials of the bodies of inquiry, investigation and prosecutor's office interpret them literally, believing that the period of additional verification is also limited to 30 days, and decisions to cancel the decision to refuse to initiate a criminal case can be made countless times, since restrictions on this matter of the Code of Criminal Procedure not directly installed. With this approach, a crime report can be verified indefinitely.
However, the use of systematic, teleological and historical methods of interpretation of Art. 144 of the Code gives grounds for other conclusions. It is obvious that, by limiting the pre-investigation check to a certain period, the legislator tried to protect the rights of persons against whom a crime was committed from red tape, and even illegal inaction of persons authorized to check reports of crimes. We must not forget about the statute of limitations, which for minor crimes is only two years. In this regard, the presence of a rule establishing a deadline for extending the period of pre-investigation checks indicates that the Code of Criminal Procedure does not imply its “non-time-bound” nature.
Let us note that, regardless of the way the Code of Criminal Procedure is interpreted in terms of the timing of the pre-investigation check, the current provisions of the Code do not allow ensuring the proper quality of the check, as well as a balance of interests of interested parties.
Thus, when deciding whether to initiate a criminal case (refusal to initiate it), the interests of law enforcement officials conducting an inspection and authorized to make the appropriate decision often collide with the victims. The desire of the latter is understandable - for the perpetrators to be brought to criminal responsibility, which is inevitably preceded by a decision to initiate criminal proceedings. However, the attitude of law enforcement officers does not always correspond to this desire, which is often due to the potential difficulties of proving the guilt of persons who committed a crime, and, as a consequence, subsequent problems when sending the case to court. At the same time, the Code of Criminal Procedure does not provide for such a basis for refusal to initiate a criminal case as “problematic nature of the investigation,” therefore, an unfounded refusal to initiate a case in the presence of a reason and grounds, predetermined by such motivation, grossly violates both the criminal procedural and constitutional rights of victims.
In this “conflict of interest”, the applicant is in a “weak position”, since “on the other side of the barricades” there is a representative of the state with his inherent powers of power. It is quite clear that the lack of intention to initiate a criminal case and the presence in the law of a “loophole” for the potentially endless issuance of “refusal” decisions can lead (and do) to serious abuse of law: it comes to the point that the detective, without conducting a substantive check, formally directs requests to various organizations and waits for responses to them in order to then send new requests, thereby creating the appearance of a process of establishing the circumstances of what happened. Such a “pre-investigation check” is accompanied by the systematic issuance of unfounded (not containing an analysis of known (established) factual circumstances) decisions to refuse to initiate a criminal case, which are canceled by the supervisory authority if there is a complaint from the applicant. This situation can last for years. There are also cases when, in the intervals between the cancellation of the decision to refuse to initiate a case and the issuance of a new one, verification activities are not carried out at all. As a result, the person who is the victim of a crime does not receive a legal and substantiated decision based on the results of verification of the arguments of his application.
Establishing a balance of interests and ensuring legality when conducting an additional pre-investigation check in the context of regulating the procedure for its conduct by the rules dictated by established law enforcement practice could be facilitated by effective judicial control. However (at least in a number of constituent entities of the Russian Federation) an appeal against the inaction of officials conducting a pre-investigation check in accordance with Art. 125 of the Code of Criminal Procedure does not allow achieving these goals.
It appears that this is due to a number of interrelated circumstances.
Firstly, the courts’ broad interpretation of paragraph. 4 clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009 No. 1 “On the practice of courts considering complaints in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation”, according to which “when checking the legality and validity of decisions and actions (inaction) of the investigator , investigator <...> the judge should not prejudge issues that may subsequently become the subject of trial on the merits of the criminal case. In particular, the judge does not have the right to draw conclusions about the factual circumstances of the case, about the assessment of evidence and the qualifications of the act.”
Secondly, the court’s focus on formal criteria when assessing the legality of the actions (inactions) being appealed, to the detriment of their substantive analysis.
Thirdly, the reluctance of the courts to give a negative assessment of the activities of officials of the bodies that verify reports of a crime and the prosecutor's office (recognizing inaction during a pre-investigation check as illegal indicates the presence of shortcomings in the activities of the prosecutor's office as a supervisory body) without urgent need.
Practice shows that courts often do not evaluate the verification activities carried out in terms of their volume in the context of the total period of verification of a crime report, as well as their necessity and expediency to establish sufficient data indicating signs of a crime. It is sufficient to refuse to recognize the inaction of officials as illegal if any measures are taken as part of an additional pre-investigation check (for example, sending requests, receiving repeated explanations) and timely making decisions based on its results (within 30 days), and it does not matter how many months (or years) have passed since the crime was reported. Obviously, such judicial control actually legitimizes a formal approach to verifying a crime report. The result of this approach is the systematic issuance of unfounded decisions to refuse to initiate criminal proceedings in cases where this is beneficial to law enforcement agencies.
The current situation, in our opinion, is due to the fact that the model of pre-investigation check established in the Code of Criminal Procedure, in terms of timing, is not entirely adequate to reality. Practice shows that within 30 days it is not always possible to make a reliable conclusion about the presence of elements of a crime in an act. In particular, in order to establish the circumstances of what happened, it is often necessary to send requests to government agencies or organizations, and responses to them sometimes arrive later than 30 days from the moment the victim filed a statement about the crime. In addition, in a number of cases it is impossible to draw a conclusion about the presence of signs of a crime without a forensic examination or other research, the possibility of which is provided for in Part 1 of Art. 144 of the Code of Criminal Procedure (for example, to establish the fact of harm to health). At the same time, the law states that the official checking a report of a crime has the right to obtain an expert’s opinion within a reasonable time.
The use of an evaluative concept to determine the period before the expiration of which an expert’s opinion can be obtained implies that the examination may exceed 30 days, which makes it impossible to make a legal and informed decision based on the results of a pre-investigation check within the period established by the Code of Criminal Procedure. Under such circumstances, it is inevitable to issue a decision to refuse to initiate a criminal case in conditions where all the verification measures necessary to formulate a conclusion about the presence (absence) of signs of a crime in the act have not been carried out. Such a resolution is doomed to be repealed.
The identified legislative flaw and the practice of premature refusals to initiate criminal proceedings dictated by it negatively affect the domestic pre-investigation check as a whole. The presence of cases of issuing premature “refusal” decisions not provided for by law leads to a transformation of the legal consciousness of the law enforcement officer: since in certain situations the issuance of refusal decisions, which are obviously subject to cancellation, is inevitable (which entails the conclusion that the issuance of such decisions is objectively possible), and the list of such situations is not normatively fixed, those conducting the pre-investigation check consider it acceptable to issue relevant decisions even without extreme necessity. This leads to abuse of law on the part of the law enforcement officer - up to the issuance of obviously illegal and unfounded decisions to refuse to initiate a criminal case for many years, that is, it determines the established practice when verification of a crime report does not have specific deadlines.
The problem, in our opinion, can only be solved by amending the Code of Criminal Procedure. At the same time, we can talk about two fundamentally different approaches to changing procedural legislation. The first involves a radical reform of the institution of pre-investigation verification. In this context, the experience of states with similar legal systems seems useful. For example, in France, in connection with receiving information about a crime, the police conduct an inquiry, which, compared to the Russian pre-investigation check, has a slightly different legal nature: the goals of the inquiry are to quickly solve the crime, search for suspects and carry out urgent investigative actions; in its production, the police have broad powers, including the use of procedural coercive measures if there are legal grounds1.
The German model of criminal proceedings is characterized by the absence of a stage of initiating a criminal case: if there are reasons (statements from private individuals, police reports, etc.) and the so-called simple suspicion of committing a crime, investigative actions are carried out, which means the start of criminal proceedings2.
This approach involves introducing significant changes to the Code of Criminal Procedure and reworking many criminal procedural institutions due to the systemic nature of the provisions of the law. In this regard, we will consider in more detail the second approach, which involves solving the problem of determining the deadlines for conducting a pre-investigation check through “targeted” changes to the norms of the Code. Thus, based on the fact that 30 days is often not enough to carry out all verification activities, as well as obtain an expert opinion, in the scientific literature some authors propose to increase the deadline for pre-investigation verification. At the same time, there is no consensus on what this period should be.
For example, there is a point of view according to which the terms of the pre-investigation check can be extended indefinitely3. This position, in our opinion, seems controversial, since with this approach the line between verification of a crime report and the preliminary investigation is blurred. However, according to the law, at the stage of preliminary verification it is required to establish only sufficient data indicating signs of a crime, and not all the circumstances included in the subject of proof in a criminal case.
Some authors see a solution to the problem in limiting the inspection to a “reasonable period”4. Such a proposal, in our opinion, is also not without its shortcomings, since the rejection of clear deadlines for verification will place victims in a position most vulnerable to abuse by law enforcement agencies, and will not help solve the problem of illegal refusal to initiate a criminal case.
A more balanced position seems to be the possibility of extending the period of pre-investigation check to 90 days5. However, when formulating this proposal, only the problematic nature of making a legal and informed decision based on the results of considering a report of a crime within 30 days is taken into account, and, as in the case of limiting the preliminary check to a “reasonable period”, it does not take into account that decisions to refuse to initiate criminal proceedings Cases can also be issued due to the reluctance of law enforcement officers to initiate criminal proceedings in principle.
Thus, we believe that simply increasing the deadline for the pre-investigation check will not solve the problem, since after its expiration a deliberately illegal and unfounded decision to refuse to initiate a case may still be made. And what will follow: a potentially unlimited number of additional checks? Consequently, the task is to not only provide in the Code of Criminal Procedure adequate terms for verifying a report of a crime, but also to make it as difficult as possible to start the cycle of “issuing a knowingly illegal decision to refuse to initiate a criminal case - canceling the decision - conducting an additional check - issuing a obviously illegal decision about refusal to initiate criminal proceedings.”
To solve this problem, it is advisable to supplement the Code of Criminal Procedure with a number of provisions.
First: if it is necessary to receive answers to requests for documents and (or) information, to complete research and (or) forensic examinations, the period for checking a crime report may be extended by the head of the investigative body at the request of the investigator or by the prosecutor at the request of the investigator up to 60 days with mandatory an indication of the specific, factual circumstances that served as the basis for such an extension. “In exceptional cases, if it is necessary to conduct construction, accounting, financial analytical, computer, and other forensic examinations, the production of which requires a long time, the period for verifying a crime report may be extended by the prosecutor of a constituent entity of the Russian Federation and an equivalent military prosecutor and their substitutes for up to 90 days”6.
Second: after the decision to refuse to initiate a criminal case is canceled, the materials are sent for additional verification, the period of which cannot exceed 30 days.
Third: the second resolution to refuse to initiate a criminal case, issued following the consideration of a report of a crime, is approved by the head of the investigative body for the subject of the Russian Federation or the head of the inquiry body for the subject of the Federation; the third and subsequent ones - by the chairman of the Investigative Committee, the head of the investigative body of the relevant federal executive body (under the federal executive body) or the head of the corresponding federal investigative body.
Fourth: if a report of a crime was checked by the investigative body, and in connection with the discovery of signs of a crime, the material was transferred to the investigative body for making a decision to initiate a criminal case, further verification is carried out by investigators of the investigative body. In case of disagreement with the transfer of a report of a crime to the investigative body, its head sends the inspection material to the prosecutor to determine jurisdiction. A report of a crime can be transferred back to the investigative body only on the basis of a prosecutor’s decision to determine jurisdiction.
We think that in the overwhelming majority of cases, 90 days is enough to formulate a conclusion about the presence (absence) of data indicating signs of a crime. If the relevant data is established, a criminal case is initiated and investigated in accordance with the established procedure. Moreover, if during the investigation it turns out that there is no corpus delicti in the actions of persons involved in the event of a potential crime, the Code of Criminal Procedure provides for the possibility of terminating the case.
Cancellation of the decision to refuse to initiate a criminal case will be carried out in situations where the factual circumstances established during the preliminary check were given an incorrect legal assessment, or in extraordinary cases when, for some reason, all the necessary circumstances were not established within 90 days. The subsequent issuance of decisions to refuse to initiate a criminal case will be complicated by the need for their approval at the level of regional or federal leadership, which, we believe, will significantly reduce the number of obviously illegal and unfounded decisions to refuse to initiate a criminal case and, as a result, will contribute to the triumph of the rule of law at the stage initiation of a criminal case.
1 See: Criminal proceedings in Western states / Golovko L.V., Gutsenko K.F., Filimonov B.A.; Edited by: Gutsenko K.F. M.: Zertsalo-M, 2001. pp. 325–330.
2 See: Ibid. P. 441.
3 See: Kostenko K.A. The evolution of the stage of initiating a criminal case: the process is inevitable and not yet completed! // Russian investigator. 2022. No. 4. P. 26.
4 See: Ushakov A.Yu., Amenitskaya N.A. Problems of access to justice at the stage of initiating a criminal case // Problems of law enforcement. 2016. No. 3. P. 37.
5 See, for example: Kutuev E.K., Logunov O.V. Improving the stage of initiating a criminal case as a means of eliminating the causes and conditions conducive to the adoption of unreasonable procedural decisions // Russian Justice. 2022. No. 11. P. 35
6 Kutuev E.K., Logunov O.V. Right there.
Procedure for considering reports of a crime
The consideration of reports of crimes constitutes the content of the stage of initiating a case and includes the reception, registration, verification of primary information and making a decision on it (Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation).
The procedure for registering reports of a crime.
Reception and registration of reports of crimes is carried out by law enforcement agencies, most often at the duty station of a police department.
Officials are obliged to accept the message, regardless of the type of crime, the place and time of its commission, or the completeness of the information. Reception of a crime report ends with appropriate registration (in the book of records of reports of incidents in the internal affairs bodies and similar books in other preliminary investigation bodies). The registration procedure is established by departmental instructions.
The applicant is given a document confirming the acceptance of a crime report (notification coupon) indicating information about the person who received it, as well as the date and time of its acceptance. The refusal to accept a message can be appealed by the applicant to the prosecutor or to the court in accordance with Articles 124 and 125 of the Code of Criminal Procedure of the Russian Federation (Part 5 of Article 144 of the Code of Criminal Procedure of the Russian Federation).
Methods for checking crime reports.
Verification of a crime report is of a logical nature, carried out for each statement or message and only within the framework of the information that is available in the received material. It is carried out in the form of analysis and evaluation of information contained in documented statements or reports of a crime. Without such verification, it is highly doubtful that any legal, informed decision will be made. Essentially, in this case, the meaning of the received information is clarified, its content is logically determined, in order to give it a legal assessment and make a specific decision.
In cases where the received materials do not contain enough information to make a decision, verification actions are carried out, the essence of which is to collect additional information that confirms or refutes the initial information about the crime.
Verification means are non-coercive methods of collecting evidence. These include obtaining samples for comparative research, various certificates, conducting audits, documentary checks, inventory, and forensic examinations. A number of verification activities are initiated by issuing written instructions to the body of inquiry to carry out operational investigative activities. Carrying out such actions is provided for in Part 4 of Art. 21, art. 144 Code of Criminal Procedure of the Russian Federation.
Part 1-1 Art. 144 of the Code of Criminal Procedure of the Russian Federation determines the procedure for obtaining explanations from eyewitnesses and the applicant. It is explained to the respondents that when carrying out these procedural actions they may not testify against themselves, their spouse and other close relatives, the circle of whom is determined by Art. 5 of the Code of Criminal Procedure of the Russian Federation, that they can use the services of a lawyer, as well as file complaints against the actions (inaction) and decisions of the inquiry officer, the body of inquiry, the investigator, the head of the investigative body in the manner established by Chapter 16 of the Code of Criminal Procedure of the Russian Federation. Participants in the verification of a crime report may also be warned about the non-disclosure of data from pre-trial proceedings in the manner established by Art. 161 Code of Criminal Procedure of the Russian Federation. If necessary, the safety of a participant in pre-trial proceedings is ensured in the manner prescribed by Part 9 of Art. 166 of the Code of Criminal Procedure of the Russian Federation, including when receiving a report of a crime. So, in accordance with Part 2 of Art. 2 of the Federal Law “On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings,” the applicant, eyewitness or victim of a crime, or other persons who contributed to the prevention or detection of a crime may be subject to state protection before the initiation of a criminal case.
If information about a crime was received from the media, then the editorial board of the media must, at the request of the criminal prosecution authorities, transfer to them the materials at its disposal about the crime (Part 4 of Article 21 of the Code of Criminal Procedure of the Russian Federation). At the same time, the editors have the right not to report information about the person who provided the information if this person has set a condition of non-disclosure of his name.
In order to prevent the stage of initiating a criminal case from being replaced by the stage of preliminary investigation, the legislator limits the possibility of conducting investigative actions aimed at collecting and verifying evidence and their sources before initiating a case, but, compensating for its prohibition, allows for the possibility of a fairly wide use of other procedural actions, with the help of which You can procedurally consolidate and verify the received statement or report of a crime. In this regard, the possibilities of establishing the circumstances of the crime committed at this stage are much narrower than during the preliminary investigation.
Thus, according to the current legislation, procedural activities at this stage are carried out, with few exceptions, without investigative actions. As a general rule, the conduct of investigative actions (as having a compulsory nature) before a decision to initiate a criminal case is made, except for inspections of the scene of the incident, objects and documents, corpses (Part 2 of Article 176 of the Code of Criminal Procedure of the Russian Federation), examination and forensic examination (Part 1, Article 144 of the Code of Criminal Procedure of the Russian Federation).
Thus, we can conclude that an inspection is a speculative and practical activity of preliminary investigation officials, carried out in accordance with the norms of criminal procedure law and aimed at obtaining, recording and evaluating the factual data necessary to resolve statements and messages.
Time limits for conducting an investigation into a crime report.
The period for procedural verification of reports of crimes is up to 3 days from the date of receipt of the report of a crime. This period may be extended to 10 days at the request of the investigator or inquiry officer, respectively, by the head of the investigative body or the head of the inquiry body. If it is necessary to conduct documentary checks, audits, forensic examinations, studies of documents, objects, corpses, as well as operational investigative activities, this period can be extended to 30 days by the prosecutor at the request of the investigator or the head of the investigative body at the request of the investigator.
The deadline for making a decision established by the legislator - 30 days - is calculated from the moment the application or message is received by the relevant government body and until it is resolved, that is, until a decision is made to initiate a case or to refuse it. Under no circumstances can it be extended; this period is final; further verification activities at the stage of initiating a criminal case are not permitted by the legislator.
In accordance with the current Criminal Procedure Code of the Russian Federation (Articles 140-148 of the Code of Criminal Procedure of the Russian Federation), officials of internal affairs bodies (police) are obliged to consider applications from citizens and representatives of legal entities, as well as other reports of crimes being prepared or committed.
In addition, in accordance with the order of the Minister of Internal Affairs of Russia No. 140 dated March 1, 2013 “On approval of the administrative regulations of the Ministry of Internal Affairs of the Russian Federation for the provision of public services for the reception, registration and resolution of applications, messages and other information about crimes, administrative offenses in the territorial bodies of the Ministry of Internal Affairs of the Russian Federation , about incidents,” police officers are also required to accept reports of any administrative offense or incident and consider them within their competence.
Messages from citizens and legal entities can be received by telephone, telegraph, fax, e-mail, as well as when the applicant personally contacts the police department - in this case, the waiting time in line cannot exceed 30 minutes.
In accordance with Article 144 of the Code of Criminal Procedure of the Russian Federation, the period for verifying a crime report is 3 days; if it is necessary to carry out a set of verification measures, it can be extended to 10 days, and when conducting expert research, up to 30 days (with the consent of the prosecutor or the head of the investigative body).
Based on the results of consideration of a report of a crime, officials of these bodies, in accordance with Article 145 of the Code of Criminal Procedure of the Russian Federation and within their competence, are obliged to make one of the following decisions:
- to initiate a criminal case;
- refusal to initiate criminal proceedings;
- on the transfer of a message to jurisdiction (territorial or departmental) or to the court - in cases of private prosecution (Article 115 part 1, Article 116 part 1, Article 128.1 part 1 of the Criminal Code of the Russian Federation).
The applicant is sent a corresponding notification.
Reports of administrative offenses are considered in the manner established by the Code of Administrative Offenses of the Russian Federation.
The procedure for appealing actions (inaction) and decisions of officials at the pre-trial stage of criminal proceedings is established by Chapter 16 of the Code of Criminal Procedure of the Russian Federation.
Citizens and representatives of legal entities who do not agree with the actions (inaction) and decisions of officials of internal affairs bodies have the right to appeal them both to the immediate and superior managers of the official whose actions and decisions are being appealed, and to the supervising prosecutor or to the court at the place where the act was committed, which was the subject of a procedural review.
In relation to the Oktyabrsky district of Izhevsk, the following complaints can be filed:
- to the management of the police department No. 2 of the Directorate of the Ministry of Internal Affairs of Russia for Izhevsk at the address: Izhevsk, V. Sivkov St., 265 "b", tel.: 646-920, 613-033;
- management of the Department of the Ministry of Internal Affairs of Russia for Izhevsk at the address: Izhevsk, V. Shosse St., 9, tel.: 425-800, 948-226;
- the leadership of the Ministry of Internal Affairs of the Udmurt Republic at the address: Izhevsk, Sovetskaya St., 17, helpline: 934-373, 934-474, 934-575;
- to the prosecutor of the Oktyabrsky district of Izhevsk at the address: Izhevsk, K. Marks St., 393, tel.: 725-540;
- to the prosecutor of the Udmurt Republic at the address: Izhevsk, V. Sivkov St., 194, tel. duty officer:784-578;
- to the Oktyabrsky District Court of Izhevsk at the address: Izhevsk, Rodnikovaya St., 60, tel.: 721-428.
