The concept and forms of completing a preliminary investigation

The procedure for investigating a criminal case consists of three key stages that are relevant for any crime - from murder to tax evasion.

1. Pre-investigation check. At this stage, the presence of elements of a crime is established and a decision is made to initiate a criminal case or to refuse one.
2. Consequence. The main phase of the criminal investigation. Interviewing witnesses, conducting examinations, collecting evidence and filing charges. At this stage, it is established who committed the crime, in what way, what damage was caused, etc.
3. Court. If the case is successfully (for the investigative authorities, of course) investigated, evidence is collected and charges are brought, it is transferred to the court, where it is decided whether the person accused by the investigation is guilty of committing a crime or not.

One of the most dangerous mistakes of most defendants in criminal cases is the belief that they can go to a lawyer at the trial stage.

No no and one more time no! The sooner a lawyer learns about all the nuances of your case, the sooner he can begin his defense and the more effective it will be. Most professionals spend the bulk of their work during the investigation - seeking to terminate or reclassify (in case of obvious guilt) a criminal case, or laying the groundwork for an active defense in court. If a lawyer only comes to court, then it is much more difficult for him to defend your interests.

At the investigation stage, the following participants can be distinguished:

• Suspect (accused). Everything is clear and understandable - this is a person suspected or accused of committing a crime.
• Victim. Everything is also clear - a person (individual or legal) who has been harmed by a crime.
• Witness. According to the Code of Criminal Procedure, this is a person who can provide any information relevant to the case or has information relevant to the investigation. But in practice, this may well be a potential suspect...

Witnesses should be especially careful. Based on recent practice, the investigation is delaying filing charges for economic crimes until the last minute. For what? They just put their guard down! The investigation can delay the prosecution until the last month of the investigation time limit - 1 year (i.e. 11 months without bringing charges).

Example: The manager or founder is called in for questioning 1-2 times a month. They've been calling me for six months now. He’s already used to it, he doesn’t go with a lawyer, he’s relaxed and may well blurt out something unnecessary. Two months ago I mentioned that I had signed documents. Last month, I mentioned that the accountant had reported problems with taxes. And in this he said that he guessed about a “tax optimization scheme”...

As soon as the investigator collects the necessary evidence and carries out all the examinations, yesterday’s witness is charged. Moreover, unexpectedly and abruptly - during the next call for questioning as a witness.

What to do if called as a witness?

The situation is classic - you have been called in for questioning and during the conversation you understand that the investigator is clearly leading you to something. Bad and dangerous. You have the right to use Art. 51 of the Constitution of the Russian Federation, which gives you the right not to testify against yourself and your close relatives (father and mother, grandfather and grandmother, wife and children).

It is better to come with a lawyer to all interrogations while you are being summoned. Savings or connivance may ultimately backfire, and it will be more difficult for a lawyer to protect you.

If you were summoned for interrogation, but you did not have time to invite a lawyer, were unable to, or decided “I’ll break through,” then be sure to ask for a copy of the interrogation protocol. If the investigator does not give it to you, you have every right to rewrite the protocol completely by hand.

Rewrite all questions, even if you used Art. 51 of the Constitution and did not answer them! It is important and necessary to do this so that the lawyer can evaluate the questions asked of you and draw conclusions about what you are accused of, what dangers you face and what defense tactics to choose. To have material for analysis.

Note: It is better to take notes on everything that is happening yourself and from the first minutes. No one can prohibit you from doing this, and besides, you will be able to clearly remember what exactly you answered to a specific question and compare it with what the investigator wrote down in the interrogation report.

Article 162 of the Code of Criminal Procedure of the Russian Federation. Term of preliminary investigation (current version)

1. The preliminary investigation in a criminal case must be completed within a period not exceeding 2 months from the date of initiation of the criminal case.

2. The period of preliminary investigation includes the time from the date of initiation of a criminal case until the day it is sent to the prosecutor with an indictment or a resolution to transfer the criminal case to the court to consider the issue of applying compulsory medical measures or until the day a decision is made to terminate the criminal proceedings .

3. The period of preliminary investigation does not include the time for the investigator to appeal the prosecutor’s decision in the case provided for in paragraph 2 of part one of Article 221 of this Code, as well as the time during which the preliminary investigation was suspended on the grounds provided for by this Code.

4. The period of preliminary investigation established by part one of this article may be extended up to 3 months by the head of the relevant investigative body.

5. In a criminal case, the investigation of which is particularly difficult, the period of preliminary investigation may be extended by the head of the investigative body of the constituent entity of the Russian Federation and another equivalent head of the investigative body, as well as their deputies, up to 12 months. Further extension of the period of preliminary investigation can be carried out only in exceptional cases by the Chairman of the Investigative Committee of the Russian Federation, the head of the investigative body of the relevant federal executive body (under the federal executive body) and their deputies.

6. When resuming proceedings on a suspended or terminated criminal case, as well as when returning a criminal case for additional investigation, the head of the investigative body in charge of the criminal case has the right to set a period for preliminary investigation within one month from the date of receipt of the criminal case by the investigator outside depending on how many times it had previously been resumed, terminated or returned for additional investigation, and regardless of the total duration of the preliminary investigation. Further extension of the period of preliminary investigation is carried out on a general basis in the manner established by parts four, five and seven of this article.

6.1. If the prosecutor returns the criminal case to the investigator in connection with the court's identification of the circumstances specified in parts one and one.2 of Article 237 of this Code, the period for conducting investigative and other procedural actions cannot exceed one month from the date the criminal case was received by the investigator. Further extension of the period of preliminary investigation is carried out on a general basis in the manner established by parts four, five and seven of this article.

6.2. If the court returns a criminal case to the head of the investigative body in connection with the cancellation of the decision to terminate the criminal case or criminal prosecution in the manner established by Article 446.5 of this Code, the period for conducting investigative and other procedural actions cannot exceed one month from the date the criminal case was received by the investigator. Further extension of the period of preliminary investigation is carried out on a general basis in the manner established by parts four, five and seven of this article.

7. If it is necessary to extend the period of the preliminary investigation, the investigator shall issue a corresponding resolution and submit it to the head of the investigative body no later than 5 days before the expiration of the period of the preliminary investigation.

8. The investigator notifies the accused and his defense attorney, as well as the victim and his representative in writing about the extension of the preliminary investigation period.

What happens after being questioned as a witness?

When the evidence is insufficient to change the status of a witness to a suspect or to bring charges, the investigation begins active work to confirm the guilt of a potential suspect (and legally, still a witness).

These activities include:

• Carrying out examinations.
• Request for information and documents.
• Additional operational activities (surveillance, wiretapping, inspection of correspondence...).
• Removal of documents.
• Interviewing other witnesses.

Based on the results of collecting all the evidence, the investigator brings charges, which can be presented in the future with adjustments and in new “editions”. As new circumstances become clear, new articles are added and other not-so-pleasant “surprises” identified by the investigation.

After the final version of the accusation is presented, the stage of familiarization with the case materials begins. During working hours, with the right to make extracts on the case.

The familiarization procedure can last several days or even months, depending on the volume of the criminal case. The investigator cannot limit your familiarization time without compelling reasons, unless there is a clear delay in the familiarization time.

The concept and forms of completing a preliminary investigation

Criminal prosecution is a procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime (clause 55 of Article 5 of the Code of Criminal Procedure).

The normative regulation of the grounds and procedure for terminating a criminal case and (or) criminal prosecution is contained in Chapter. 4 (vv. 24-28) and ch. 29 (Articles 212-214) of the Code of Criminal Procedure, which establishes the corresponding order (procedure).

The grounds for termination of a criminal case and (or) criminal prosecution are factual circumstances provided for by the criminal and criminal procedural law that entail the impossibility of further proceedings in a criminal case or indicate that there is no need to continue it.

Grounds for termination of a criminal case and (or) criminal prosecution:

1. absence of crime event;

absence of corpus delicti in the act;

2. expiration of the statute of limitations for criminal prosecution;
3. death of a suspect or accused, with the exception of cases of rehabilitation of the deceased;
4. absence of a statement from the victim, if a criminal case can only be initiated based on his statement;
5. the absence of a court conclusion on the presence of signs of a crime in the actions of one of the persons specified in paragraphs 2 and 2.1 of part one of Article 448 of this Code, or the absence of consent, respectively, of the Federation Council, the State Duma, the Constitutional Court of the Russian Federation, the qualification board of judges to initiate a criminal case or attract as an accused one of the persons specified in paragraphs 1 and 3 - 5 of part one of Article 448 of this Code;
6. reconciliation of the parties.

Grounds for termination of criminal prosecution:

1. non-involvement of the suspect or accused in the commission of a crime;

termination of a criminal case on the grounds indicated above;

Read also:  Concept, meaning and types of jurisdiction. Transfer of a criminal case to jurisdiction
2. as a result of the amnesty act;
3. the presence in relation to the suspect or accused of a sentence on the same charge that has entered into legal force, or a court ruling or a judge's decision to terminate the criminal case on the same charge;
4. the presence in relation to the suspect or accused of an unrescinded resolution of the body of inquiry, investigator or prosecutor to terminate the criminal case on the same charge or to refuse to initiate a criminal case;
5. refusal of the State Duma of the Federal Assembly of the Russian Federation to give consent to the deprivation of immunity of the President of the Russian Federation who has ceased to exercise his powers, and (or) refusal of the Federation Council to deprive the immunity of this person;
6. Article 28. Termination of criminal prosecution due to active repentance;
7. Article 28.1. Termination of criminal prosecution in cases of crimes in the sphere of economic activity.

Termination of a criminal case and (or) criminal prosecution is permitted at all stages of the criminal process. However, the preliminary investigation stage is the first stage of the criminal process, where it becomes possible to make a decision to terminate the criminal case and (or) criminal prosecution.

The grounds and procedure for terminating a criminal case and (or) criminal prosecution are the same regardless of the form in which the preliminary investigation is carried out - in the form of a preliminary investigation or inquiry. After the termination of the criminal case, no investigative actions or procedural decisions are allowed. Based on this, terminated criminal cases are not subject to moving to subsequent stages. Therefore, the termination of a criminal case is the only procedural form of ending the preliminary investigation, allowing the criminal proceedings to be completely completed out of court and a final decision on the case to be made by the investigator (in some cases with the consent of the head of the investigative body) or the interrogating officer (in some cases with the consent of the prosecutor).

It is necessary to distinguish between the concepts of “termination of a criminal case” and “termination of criminal prosecution”. Termination of a criminal case always entails termination of criminal prosecution (Part 3 of Article 24 of the Code of Criminal Procedure). This is due to the fact that criminal prosecution is an integral part of criminal proceedings. Therefore, the termination of a criminal case also excludes the possibility of continuing criminal prosecution within the framework of this criminal case from the moment of its termination. Whereas when criminal prosecution is terminated, the criminal case as a whole does not end. Only the criminal prosecution of a specific person is terminated due to the presence of certain circumstances, and the criminal proceedings continue (Part 4 of Article 27 of the Code of Criminal Procedure).

In addition, the termination of criminal prosecution is always personalized, i.e. criminal proceedings against a specific person or group of persons are terminated. Whereas the termination of a criminal case is not always personalized, because it is possible to terminate criminal procedural activities due to the absence of the crime itself (clause 1, part 1, article 24 of the Code of Criminal Procedure).

In what cases is a preliminary investigation required?

The answer to this question should be sought in Article 150 of the Code of Criminal Procedure of the Russian Federation, which states that preliminary investigation is mandatory in all criminal cases, with the exception of criminal cases of crimes specified in Part 3 of Article 150 of the Code of Criminal Procedure of the Russian Federation.

If we look at Part 3 of Art. 150 of the Code of Criminal Procedure of the Russian Federation, we will see that it lists all the articles of the Criminal Code under which an investigation is carried out in the form of an inquiry. Accordingly, all other articles that are not included in Part 3 of Art. 150 of the Code of Criminal Procedure of the Russian Federation, must be investigated in the form of a preliminary investigation.

Thus, determining the list of criminal cases for which preliminary investigation is mandatory should not cause any difficulties.

For example, let’s take paragraph “a” of Part 3 of Article 158 of the Criminal Code of the Russian Federation (theft committed with illegal entry into a home). Let's see if this norm is included in Part 3 of Art. 150 of the Code of Criminal Procedure of the Russian Federation and if it is not there, then a preliminary investigation is required under this article.

Also, in some cases, criminal cases for which an investigation is not necessary can be transferred to the investigative body by the prosecutor if for some reason he considers this necessary.

Jurisdiction

As for the jurisdiction of criminal cases between different departments, this distinction is defined by Art. 151 of the Code of Criminal Procedure of the Russian Federation, which specifically states which crimes should be investigated by investigators of the Investigative Committee, which by investigators of the Ministry of Internal Affairs, and which by state security agencies.

By the way, on many sites on the Internet, including those that position themselves as legal resources, it is stated that a preliminary investigation is mandatory in all criminal cases against minors. This is an erroneous and unclearly based statement. Criminal cases against minors can be investigated both in the form of investigation and in the form of inquiry, depending on the qualifications of the act committed. For example, under Part 1 of Art. 158 of the Criminal Code of the Russian Federation (theft), criminal cases against minors are investigated by investigators.