Conclusion / Investigative actions carried out before the initiation of a criminal case
The work considered aspects of the legal regulation of the production of investigative actions carried out before the initiation of a criminal case.
The possibility of carrying out investigative actions provided for by the criminal procedure legislation at this stage is reduced to a minimum - only an inspection of the scene of the incident, examination and appointment of an expert examination are allowed (part 4 of article 146 of the Criminal Procedure Code). The results of procedural actions of this kind, of course, must be formalized according to the rules established in the CPC for their production and can acquire the value of evidence in the case.
Also, in the course of checking a crime report, operational-search measures can be carried out, audits and checks can be assigned, and specialists can be involved in consulting. The evidentiary value of the results of operational-search activities carried out before the initiation of a criminal case is the subject of heated debate. According to the author, the operational data obtained by the bodies carrying out operational-search activities, prior to the initiation of a criminal case and without an order, may be of a purely informative nature, serve as grounds for initiating a criminal case, and also serve as an informative basis for collecting evidence in the course of a preliminary investigation. But these results of operational-search activity, again in the opinion of the author, cannot in any way be evidence in a criminal case, which can be used as the basis for an accusation.
The results of audits and inspections of economic activities can serve as initial materials for the appointment of forensic accounting examinations in the future.
As for the conduct of investigative actions carried out before the initiation of a criminal case, it is necessary to strictly comply with the requirements of the Code of Criminal Procedure of the Russian Federation, which regulate the procedure for carrying out these investigative actions.
The list of investigative actions carried out before the initiation of a criminal case consists of the following investigative actions:
This list of investigative actions carried out before the initiation of a criminal case is indisputable and limited. Other investigative actions cannot be carried out prior to the initiation of a criminal case. This follows from the content of Part 4 of Art. 146 of the Criminal Procedure Code of the Russian Federation.
This list of investigative actions carried out before the initiation of a criminal case has been established by the legislator in order to provide an opportunity for law enforcement agencies involved in the disclosure and investigation of crimes, to consolidate and fix the traces of a crime.
However, there are certain limitations here as well. In particular, when conducting an investigative examination in a dwelling, in case of an objection of residents against carrying out this investigative action in their dwelling, compliance with the requirements of Art. 165 of the Code of Criminal Procedure of the Russian Federation on the judicial procedure for the production of an investigative action.
But at the same time, as practice often shows, some divisions of law enforcement agencies abuse their powers to conduct investigative actions, the production of which is possible before a criminal case is initiated.
So, in particular, the police in the field of combating economic crimes, and combating crimes in the field of business activities often carry out an investigative examination without special need, but only with the aim of intimidating business entities.
In this regard, the author of the work considers it expedient to amend the Code of Criminal Procedure of the Russian Federation, regulating in detail the management of the implementation of procedural actions when a crime is reported. In this case, the procedural status of the person authorized to issue instructions for the performance of investigative actions carried out prior to the initiation of a criminal case should be established. Such a situation is unacceptable when units of law enforcement agencies, at their discretion, carry out investigative actions when such a need arises in the course of operational-search activities. According to the author, the legislator should establish a direct prohibition on the conduct of investigative actions carried out before the initiation of a criminal case without a written order from a person authorized to carry out a preliminary investigation.
In this case, a guarantee of compliance with the law will be ensured in the conduct of investigative actions carried out before the initiation of a criminal case, and the possibility for unscrupulous law enforcement officers to abuse their powers will be excluded.
The main conclusion on the work will be as follows. When carrying out procedural activities prior to the initiation of a criminal case, law enforcement agencies must act within the framework of the law. Only in this case will the main goal of criminal proceedings be achieved - the protection of public interests from criminal encroachments and maximum protection of the rights and interests of respectable citizens - members of a civilized democratic society will be ensured.
2.1 Investigative actions carried out before the initiation of a criminal case
First of all, it is important to note that any investigative actions significantly affect the rights and freedoms of citizens. The investigator (in some cases, and the interrogator) must have certain grounds for carrying out investigative actions, guided by the provisions of the law, determining what investigative actions he is obliged to carry out or performs, considering them necessary. In the context of a rapidly changing investigative situation, it is tactically justified to choose as the first priority those investigative actions that make it possible to ensure the fixation of traces of the crime and the identification of the person who committed it.
Part 2 of the Code of Criminal Procedure of the Russian Federation is devoted to pre-trial proceedings, which includes two sections.
Section 7 of the Code of Criminal Procedure of the Russian Federation establishes the procedure for initiating a criminal case: if there is a reason and grounds provided for in Art. 140 of the Code of Criminal Procedure of the Russian Federation, the body of inquiry, the investigator, the head of the investigative body, the investigator within the competence established by the Code of Criminal Procedure of the Russian Federation, initiate a criminal case, and a corresponding resolution is issued (part 1 of Art. 146 of the Code of Criminal Procedure).
According to the Decree of the Constitutional Court of the Russian Federation of January 14, 2000 No. 1-P, “the act of initiating a criminal case creates the prerequisites for the implementation of criminal prosecution and legal grounds for subsequent procedural actions of the bodies of inquiry, preliminary investigation and the court. Accordingly, the rules on the procedure for initiating a criminal case precede the regulation of the investigation ”. It should be noted that the opinions of procedural scholars differ regarding the stage of initiation of a criminal case. From the point of view of some authors, the purpose of this stage is to draw up a decision to initiate a criminal case. Moreover, they also talk about the uselessness of this stage as such, considering the receipt of information about the crime and its registration as the moment of commencement of pre-trial proceedings. Other scientists (and most of them), including the author of this work, adhere to the position that the stage of initiating a criminal case is an independent part of the criminal process, legally defined in Ch. 20 of the Criminal Procedure Code of the Russian Federation.
Section 8 of the Code of Criminal Procedure of the Russian Federation establishes the procedure for conducting a preliminary investigation, which, according to Art. 156 of the Code of Criminal Procedure of the Russian Federation, begins from the moment a criminal case is initiated, about which the investigator, interrogating officer, and the body of inquiry shall issue an appropriate resolution, which must be agreed with the prosecutor, since “until a decision is made to initiate a criminal case, the law does not allow investigative actions and measures to be taken procedural coercion, which, as a rule, are associated with the restriction of the rights of citizens ”. However, in exceptional cases, in urgent cases, the investigative action may be carried out before the initiation of a criminal case. At the moment, in accordance with Art. 144 of the Code of Criminal Procedure of the Russian Federation, officials “... have the right to receive explanations, samples for comparative research, demand documents and items, seize them in the manner prescribed by this Code, appoint a forensic examination, take part in its proceedings and receive an expert opinion within a reasonable time, conduct an examination place of incident, documents, objects, corpses, examination, demand the production of documentary checks, audits, studies of documents, objects, corpses ... ".
Let's consider some of the indicated investigative actions.
Inspection of the scene. According to Part 1 of Art. 176 of the Code of Criminal Procedure of the Russian Federation, inspection of the scene of the incident, terrain, dwelling, other premises, objects and documents is carried out in order to detect traces of a crime, to clarify other circumstances that are important for a criminal case. In urgent cases, an inspection of the scene may be carried out prior to the initiation of a criminal case.
Inspection of the scene consists in direct observation, detection, perception, fixation and analysis by the investigator of various objects to establish their signs, properties, state, interposition and determine their significance as evidence in the case. The purpose of an investigative examination is to obtain evidence that will facilitate the disclosure and investigation of a crime.
The success of the entire investigation often depends on how criminally competently this investigative action is performed. Therefore, it is no coincidence that forensic experts emphasize the importance of inspecting the scene of the incident and the objects found there. Let us recall that the famous Russian lawyer of the 19th century V. Leontyev wrote back in 1887: “Inspections are the basis of the entire investigation, and there is no limit to the thoroughness with which they are. must be done. "
Inspection of the scene helps to solve the following important tasks of the investigation:
a thorough study of the situation at the scene of the incident, clarification of the course of events, the design of the criminal's actions;
identification and seizure of traces of the committed crime;
identification of possible sources of obtaining other evidence;
obtaining information for the advancement of investigative versions;
the decision of the issue of admission to the case of this or that subject as material evidence;
verification of other sources of evidence in the case.
The examination is carried out with the participation of attesting witnesses, with the exception of cases provided for in Part 3 of Art. 170 of the Criminal Procedure Code of the Russian Federation. In the case of an investigative action without the participation of attesting witnesses, technical means of recording its progress and results are used. If in the course of an investigative action the use of technical means is impossible, then the investigator makes an appropriate entry in the protocol.
Everything found and withdrawn during the inspection must be presented to the attesting witnesses, to other participants in the inspection.
Inspection of the dwelling is carried out only with the consent of the persons living in it or on the basis of a court decision. If the persons residing in the dwelling object to the inspection, the investigator shall file a petition with the court for the inspection in accordance with Art. 165 of the Criminal Procedure Code of the Russian Federation.
Inspection of the premises of the organization is carried out in the presence of a representative of the administration of the relevant organization. If it is impossible to ensure his participation in the inspection, an entry is made in the protocol.
Examination of the corpse. Inspection of the corpse at the place of its discovery is most often carried out during the inspection of the scene of the incident. In this case, the course and results of the examination of the corpse are recorded in the protocol of the inspection of the scene of the incident. Examination of the corpse outside the scene of the incident (for example, when the corpse is taken to the morgue before the arrival of the investigative-operational group at the scene of the incident, or is taken to the morgue from the surgical department of the hospital, or the corpse is removed from the burial place) is an independent investigative action, the course and results of which are recorded in the examination protocol corpse.
According to Part 1 of Art. 178 of the Criminal Procedure Code of the Russian Federation, the investigator examines the corpse with the participation of attesting witnesses, a forensic expert, and if his participation is impossible, a doctor. If necessary, other specialists may be involved to examine the corpse. When inviting a doctor who is not a specialist in the field of forensic medicine to participate in the examination of the corpse, the investigator explains to him the tasks, goals and procedure of the examination. According to Part 4 of Art. 178 of the Criminal Procedure Code of the Russian Federation, if necessary, the examination of the corpse can be carried out before the initiation of a criminal case.
Survey. According to Part 1 of Art. 179 of the Code of Criminal Procedure of the Russian Federation, in order to detect special signs on the human body, traces of a crime, bodily harm, to identify a state of intoxication or other properties and signs that are important for a criminal case, if this does not require a forensic examination, an examination of the suspect, the accused can be carried out, the victim, as well as a witness with his consent, except for cases when the examination is necessary to assess the reliability of his testimony. In urgent cases, the examination may be carried out before the initiation of a criminal case.
The investigator issues a resolution on the performance of the examination, which is mandatory for the person being examined.
The examination is carried out by the investigator. If necessary, the investigator shall involve a doctor or other specialist in the examination.
When examining a person of the opposite sex, the investigator is not present if the examination is accompanied by the nudity of this person. In this case, the examination is carried out by a doctor.
Under special signs within the meaning of Part 1 of Art. 179 of the Criminal Procedure Code of the Russian Federation, one should understand signs that have an artificial or natural origin, which differ in their appearance by a pronounced individuality and are inherent only to this person.
Bodily injury is a visible change on the human body that has arisen as a result of external influences and caused suffering either at the time of injury or after it. Examination is an external examination, it does not replace examination, and it cannot detect damage to human tissue that does not have visible signs. In such cases, a forensic medical examination is required.
The state of intoxication is the result of the use of alcoholic beverages or drugs, intoxicants. All types of intoxication lead to changes in the mental state of a person, his appearance, speech, movements and can be detected by examination. The degree of intoxication can be a legally significant phenomenon. The degree of alcoholic and non-alcoholic intoxication is established by medical control using appropriate devices. It is advisable to conduct an examination to determine the degree of intoxication with the participation of medical specialists.
The properties and characteristics that the law speaks of are related to each other. Through signs, properties are revealed, that is, the qualitative states of the object of observation, which are in dynamics or statics and show its differences from other objects or commonality with other objects. During the survey, you can establish both. Specific features of appearance, speech, gait, or other ordinary movements are revealed. In other cases, an identity may be found between the size of the injury and the size of the impact part of the object to which it was inflicted. The discovery of properties and signs is a general requirement for certification. The properties and signs discovered during the survey must be reflected in descriptions, measurements, sketches, photographs, if possible.
The problem of performing investigative actions before initiating a criminal case (Naumov A.M.)
Date of posting the article: 02.11.2016
If we look at the statistics for Russia, we will see that not all reports of crimes are prosecuted, since not everywhere there are grounds for initiating them. We have a huge amount of rejected materials.
And the main procedural purpose of the stage of initiation of a criminal case and pre-investigation check is to filter messages that do not contain signs of corpus delicti from those where these signs are present, to identify circumstances that impede the proceedings on the case, and to make a legal and reasonable procedural decision to initiate a criminal cases or refusal to initiate a criminal case.
Therefore, to refuse this stage and from the pre-investigation verification of reports of a crime seems to be erroneous.
Expanding the list of investigative actions permitted by law before the initiation of a criminal case is the legislator's response to the wishes of law enforcement officers. But it must be remembered that actions are different. There are actions that do not affect the constitutional rights of citizens and are neutral in nature (such as inspection of the scene of the incident, objects, documents, inspection of a corpse). At the same time, there are a number of investigative and procedural actions permitted before the initiation of a criminal case, which infringe upon the constitutional rights of citizens, and therefore they can be attributed to elements of criminal prosecution.
The latter, as we see it, include such actions as certification, obtaining samples for comparative research and the appointment of an expert examination. Of course, the search, seizure, personal search, as well as the seizure of postal and telegraphic items, their inspection and seizure should also be referred to the actions of criminal prosecution.
It seems deeply erroneous and dangerous to extend the scope of criminal prosecution to the stage of initiating a criminal case, while permitting the production of investigative and procedural actions that infringe upon the constitutional rights of citizens, even before the initiation of a criminal case.
Literature
criminal process
Konstantin Kalinovsky's website
Kalinovsky K.B. Seizure before the initiation of a criminal case violates the constitutional principle of proportionality of restrictions on the rights of citizens
// Criminal process. 2016. No. 3.
On the basis of the constitutional principle of proportionality, the article substantiates the inadmissibility of production prior to the initiation of a criminal case of seizures as investigative actions, and offers recommendations on assessing the admissibility of evidence obtained in violation of the law.
author - Konstantin Borisovich Kalinovsky, Head of the Department of Criminal Procedure Law of the North-West Branch of the Russian State University of Justice, Candidate of Legal Sciences, Associate Professor, member of the Scientific Advisory Council at the Supreme Court of the Russian Federation
Despite the fact that the admissibility of investigative actions before the initiation of a criminal case has long been the subject of heated scientific discussion, the ambiguous legislative and law enforcement practice testifies to the continued relevance of the development of theoretical recommendations for solving this problem.
Moreover, the most acute issue in law enforcement practice is the issue of production during the period of pre-investigation verification of searches and seizures. It was he who was first brought before the Constitutional Court of the Russian Federation in the complaint of citizen A., on which the Determination of the Constitutional Court of the Russian Federation of December 22, 2015 No. 2885-O was issued.
The applicant contested the constitutionality of the provision of part one of Article 144 "Procedure for considering a report of a crime" of the Code of Criminal Procedure of the Russian Federation (as amended by Federal Law No. 23-FZ of 4 March 2013), according to which when checking a crime report, an inquiry officer, body of inquiry, investigator, head of an investigative body have the right to demand documents and items, to seize them in the manner prescribed by this Code... This provision, the applicant believed, is unconstitutional, since, due to its uncertainty, it allowed the seizure of objects and documents in accordance with Articles 182 and 183 of the Code of Criminal Procedure of the Russian Federation before a decision was made to initiate a criminal case and to use the objects and documents obtained in this way as evidence.
By the verdict of the Maikop City Court of the Republic of Adygea of May 7, 2015, upheld by the higher courts, including the Supreme Court of the Russian Federation, citizen A. was convicted for the fact that she, being the head of vocational training of an educational institution of primary vocational education, committed 15 crimes in the form of receiving a bribe for the illegal issuance of false certificates to citizens about the qualification level of "excavator driver", "bulldozer driver", "loader driver" bypassing the procedure established by law for their training.
During the period of preliminary verification of the crime report by the detectives of the Department for Economic Security and Anti-Corruption of the Ministry of Internal Affairs in the Republic of Adygea, on the basis of the decisions they made on the production of seizures and with the preparation of appropriate protocols, documents were seized from citizens (certificates of qualification level, individual cards, certificates, temporary permits ), which were then examined, attached to the case as material evidence, examined by experts and used to substantiate the conviction.
The court of first instance rejected the defense's petition to declare inadmissible evidence of the said protocols of seizure, examinations, decisions on recognition as material evidence and conclusions of handwriting examinations, with which the higher courts also agreed. The position of the courts of general jurisdiction was based on a literal interpretation of Part 2 of Art. 144 and Art. 183 of the Criminal Procedure Code of the Russian Federation.
We believe that a systematic interpretation of criminal procedural norms allows us to assert that it is inadmissible to seize before a criminal case is initiated. Article 156 of the CCP explicitly states that the preliminary investigation begins from the moment a criminal case is initiated, and the content of the preliminary investigation includes the production of investigative actions (Chapter 25 of the CCP, which regulates the search and seizure, is located in Section VIII "Preliminary Investigation" of the Code; its article 157 only allows after the initiation of the case, carrying out even urgent investigative actions).
In the context of unstable legislation and changing judicial practice, for the correct understanding, application and improvement of the criminal procedural norms in question, the requirements of the Constitution of the Russian Federation are of fundamental importance, and above all, as enshrined in its article 55, part 3 proportionality requirement limitation of the rights of citizens to constitutionally enshrined goals and protected interests, as well as the nature of the committed act.
Due to the fact that criminal proceedings are a way of applying criminal law, which establishes measures of criminal responsibility adequate to the gravity of the crime committed, the criminal procedural legislation provides for the application of such restrictions on the rights of citizens that are absent in other types of legal proceedings. Such restrictions may arise, inter alia, in connection with the conduct of a search and seizure, associated with the compulsory seizure of property, entry into a dwelling, opening of premises, storage facilities, a prohibition to leave the place where these investigative actions are carried out, etc.
The proportionality of these restrictions is ensured, among other things, by the availability of sufficient data on the signs of a crime, which are the basis for issuing a decision to initiate a criminal case (part 2 of article 140 of the Code of Criminal Procedure of the Russian Federation). Without sufficient data on the signs of a crime, i.e. at the stage of preliminary verification of reports of an offense, a legal conclusion has not yet been made about what kind of offense is supposed to be: civil, administrative, or, nevertheless, criminal. The use of funds intended for compulsory investigation of crimes in administrative or civil cases leads to a clearly excessive restriction of the rights of citizens and a violation of the separation of types of legal proceedings provided for in Part 2 of Article 118 of the Constitution of the Russian Federation. Moreover, checks of reports of incidents often take a protracted nature and end with a decision to refuse to initiate a criminal case.
In other words, according to the current Russian criminal procedural legislation, the decision to initiate a criminal case is still the trigger that launches the mechanisms of criminal procedural coercion and at the same time ensures compliance with the constitutional and legal principle of proportionality of the application of this coercion.
Thus, both according to the sectoral interpretation of the Criminal Procedure Code, and from the point of view of constitutional and legal positions, seizure or any other investigative actions involving the use of procedural coercion measures are not allowed in cases where there is no sufficient data on the signs of a crime, i.e. during the period of preliminary verification of reports of crimes.
Doctrinal assessment of the admissibility of evidence
The constitutional and legal approach also allows us to offer a solution to another related issue, but no less important: how to legally assess the results of the seizure carried out before the initiation of a criminal case, i.e. Should such seizure reports and exhibits obtained be deemed inadmissible, or may they remain admissible?
It seems that the legal consequences of the seizure at the stage of pre-investigation verification (as well as the consequences of other violations of the law committed when obtaining evidence) should also be proportionate to the essence of the violation. As sanctions, the legislation provides for sufficiently differentiated measures: recognition of evidence inadmissible (Article 75 of the Code of Criminal Procedure of the Russian Federation), issuance of a private ruling (ruling) of the court (part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation), removal of an inquiry officer or investigator from further investigation if they are allowed violation of the requirements of the law (clause 10, part 2 of article 37; clause 6 of part 1 of article 39 of the Criminal Procedure Code of the Russian Federation), bringing the violator to disciplinary, civil and even criminal liability, etc. the violation or limitation of the right of the accused to defense is also guided by the Plenum of the Supreme Court of the Russian Federation.
Accordingly, the exclusion of evidence from the list of admissible evidence should be applied only to material violations that infringe on the constitutional rights of the parties to the proceedings, and above all - on the right to a fair judicial defense by an independent court.
From these positions, it is necessary to first determine whether the committed violation of the law casts doubt on the reliability of the evidence obtained. Irremovable doubts about the reliability of the evidence - by virtue of the requirement of the principle of the presumption of innocence - must be interpreted in favor of the accused (therefore, doubtful evidence of the prosecution, and even obtained in violation of the law, is certainly excluded). Indeed, the right to a fair trial cannot be guaranteed if a conviction is based on false evidence.
If the evidence, although obtained in violation of the law, as a result of this violation does not raise doubts about its reliability, then it is necessary to assess whose and what rights are violated, whether such violations infringe on a fair trial or other rights, whether the exclusion of evidence will contribute to restoration or protection. of violated rights, or vice versa, may aggravate the consequences of the violation.
With such a "substantive" approach, which includes, along with the assessment of a formal violation of the procedural law, the damage that was (could be) caused to the protected object - a fair procedure of legal proceedings and the constitutional rights of an individual, it is possible to resolve the issue of the admissibility of the seizure protocol carried out before the initiation of the case , i.e. in violation of the requirements of Articles 144, 156 and 183 of the Code of Criminal Procedure of the Russian Federation.
If, for example, during the seizure, forced entry into the home of a suspected person was carried out and coercion (handcuffs, physical force) was applied to the person from whom the narcotic drugs were seized, then the protocol of such seizure should be recognized as inadmissible evidence. The unlawful use by one party of a future litigation against the other party of coercion in order to obtain evidence intended to resolve this dispute always violates the principle of equality of the parties, and therefore damages the fair trial of the case.
In other cases, it would be obviously unfair to exclude the same seizure protocol, but carried out at the request of a person who wants to use this evidence in his defense in court to justify voluntary surrender of the object or active repentance. The exclusion in this case of the defensive evidence obtained by the prosecution in violation of the law did not eliminate, but, on the contrary, would increase the damage for a fair resolution of the case.
The third situation may occur when a decision is made to refuse to initiate a case or to terminate it: a seizure that was illegally carried out during the verification of a crime report cannot lead to the exclusion of evidence justifying the fact that damage was caused by this seizure when considering the issue of compensation for the victim.
The full text of the article can be found in the journal "Criminal Procedure" - http://e.ugpr.ru/article.aspx?aid=446448
Kalinovsky K.B. "Pre-Investigative" Search - Illegal Know-How // Criminal Procedure. 2015. No. 1.P. 9.
This is a generally recognized rule of interpretation, for example, was used by the Constitutional Court of the Russian Federation in para. 3 paragraph 2 of the reasoning part of his Resolution of June 13, 1996 No. 14-P. The prohibition of the broad interpretation of such special rules that restrict the rights and freedoms of citizens is even more rigid No. 31-P, etc.) The production of seizure as an investigative action is associated with the possibility of using the compulsory confiscation of objects and documents, entering a dwelling, etc.
Clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 30, 2015 N 29 "On the practice of the courts' application of legislation ensuring the right to defense in criminal proceedings." // Russian newspaper. July 10, 2015
The problems of identifying significant and insignificant violations, the so-called “asymmetry” of the admissibility of evidence, as well as the use of information obtained in violation of the law as evidence, are highly controversial and do not have a generally accepted solution. We do not pretend to put an end to the scientific discussion on these problems, but we adhere to a consistent approach to their resolution. About him see: Kalinovskiy K.B. Significance of criminal procedural violations when collecting evidence // Legality, operational-search activity and criminal procedure. Mater. International scientific. pr. conf. Part 2. SPb., 1998. S. 11-14; Kalinovsky K.B. Legality and types of criminal proceedings. Diss. Cand. jurid. sciences. SPb., 1999. S. 117; Smirnov A.V. Commentary on Article 75 of the Criminal Procedure Code of the Russian Federation // Smirnov A.V. Kalinovsky K.B. Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnov. SPb .: Peter, 2003 (URL: http://kalinovsky-k.narod.ru/p/komm-075.htm), Smirnov A.V. Solution of the issue of admissibility as evidence of information obtained in violation of the law // Criminal Procedure. 2009. No. 1, etc.
To apply this approach, the courts can use the following interpretation of the first part of Article 75 of the Criminal Procedure Code: it provides for a violation of the requirements of the Code as a whole (ie, the principles of criminal proceedings), and not of its individual prescriptions; violation of individual prescriptions entails other consequences, but not the exclusion of evidence. See Smirnov A.V., Kalinovsky K.B. Commentary on Art. 75 of the Code of Criminal Procedure of the Russian Federation / Commentary on the Criminal Procedure Code of the Russian Federation. 5th ed. Under total. ed. A.V. Smirnov. M .: Prospect, 2009.
The article was written based on materials from the sites: www.allpravo.ru, pravo.bobrodobro.ru, xn - 7sbbaj7auwnffhk.xn - p1ai, kalinovsky-k.narod.ru.
The information and cognitive activity of the investigator at the stage of initiating a criminal case consists in the study of events reflected in various elements of the situation: material traces, objects, documents, living persons, corpses, etc.
The study of one event involves obtaining information, analyzing it, comparing data with other sources, logical assessment, etc. For example, data on theft from an apartment with illegal entry can be obtained from a survey of neighbors, as a result of a study of breaking a lock, shoe prints , hands, studying the objects of the crime. All these circumstances are investigated with the help of procedural actions. The study of one circumstance may involve the production of a whole complex of procedural actions, the effectiveness of which depends on the adequacy of their application, the problem being solved and tactical techniques. That is, the complex nature of the information and cognitive activity of the investigator determines the consistency of the procedural actions carried out before the initiation of a criminal case when the circumstances of the crime are established.
Each procedural action has goals, objectives and characteristics. They are based on the cognitive activity of the investigator, the need to comply with moral and legal requirements, criminal procedure principles. Establishing the circumstances of a crime provides for the tactical organization of activities to detect, reflect, fix the elements of the situation of a criminal event, in this regard, procedural actions are considered as elements that make up an ordered system of this activity. At the same time, the formation of a system for the application of procedural actions as an information-logical structure of knowledge and proof in a specific situation before the initiation of a criminal case is determined by forensic tactics. Its purpose is to ensure the comprehensive nature of the verification of the crime report and the organizational and tactical unity of the procedural actions carried out before the initiation of a criminal case, as methods of cognition, research and proof.
R.S. Belkin and A.I. Vinberg, S.E. Vitsin, A. Yu. Golovin, S.I. Konovalov, A.B. Soloviev, S.A. Sheifer, V.Yu. Shepitko et al. The effectiveness of the systemic application of procedural actions is due to the fact that each of them is aimed at solving a specific problem, and in aggregate they form an integral system of procedural means to establish the circumstances of a crime.
In the legal literature, the system of investigative actions within the framework of the preliminary investigation was mainly studied. Based on the analysis of research data, we can study the system of procedural actions at the stage of initiating a criminal case, and this is facilitated by the expansion of the list of procedural actions performed before the initiation of a criminal case, regulated by Art. 144 of the Code of Criminal Procedure of the Russian Federation.
In the legal literature, attempts have been made to classify the system of investigative actions, for example, according to certain types or according to the regulation of their production.
A.R. Belkin proposed a classification based on the division of investigative actions depending on the nature of the evidentiary information that needs to be obtained or verified.
S.A. Shafer identified the following groups of investigative actions according to the method of displaying factual data:
1) actions based on the methods of questioning;
2) actions based on the observation method;
3) actions based on a combination of questioning and observation.
Depending on the nature of the evidentiary information that needs to be obtained or verified, A.Yu. G tin allocates:
1) investigative actions aimed at verifying evidence about the circumstances;
2) investigative actions aimed at establishing and investigating material traces of a crime, establishing various kinds of conditions;
3) investigative actions aimed at obtaining and verifying evidential information of a complex nature, reflected in the knowledge of specific persons, in the study of material traces, in the establishment and verification of various kinds of conditions.
A.B. Soloviev proposed to classify investigative actions on the basis of reflection of the traces of a crime:
1) investigative actions aimed at obtaining and checking evidence;
2) investigative actions aimed at detecting and removing traces of a crime.
In addition, investigative actions can be classified on the basis of their procedural essence: main, auxiliary and optional (the production of which provides the main investigative actions - obtaining samples for comparative research in relation to the appointment of an examination, etc.), as well as by stages of investigation: initial and subsequent , urgent and follow-up.
In our opinion, the procedural actions before the initiation of a criminal case can also be classified according to all of the above grounds.
The determination of the system of procedural actions before the initiation of a criminal case when establishing the circumstances of the crime is primarily due to the initial situation, which affects the tactics of the formation of the system of procedural actions by its constituent components (psychological nature of the situation, sources of information, initial information, interaction with operational investigative services, state control and supervision bodies , specialists). According to I.M. Luzgin, the resolution of initial situations is developed on the basis of an integrated approach, where the system of investigative actions and operational-search measures is of decisive importance as an interdependent and indissoluble unity of all actions aimed at resolving the situation.
Thus, the formation of a system of procedural actions to establish the circumstances of the signs of a crime before the initiation of a criminal case is a complex process that includes procedural and forensic means, the use of which is due to both the forensic characteristics of the crime and the initial situation.
The system of procedural actions is an open system. It can be supplemented with new elements: cognitive techniques recommended by science and confirmed their cognitive value in practice. At the same time, a procedural action as a system element is itself a system, but of a lower level. Analysis of the system of procedural actions allows you to determine the stages of the procedural actions, the methods and actions of the investigator, his relationship with the participants in the audit as components of this subsystem. The purpose of a procedural action predetermines the ways to achieve it, which form forensic techniques - tactical and technical.
According to some scientists, the most effective application of forensic techniques in the form of an algorithm for the behavior of an investigator. This is due to the fact that the algorithm of actions of the investigator allows you to resolve homogeneous problems with the help of general developed procedural actions and tactical methods applied in this case. In general, a forensic algorithm is a system of consistently executed prescriptions regulated by law and developed by forensic science, aimed at effectively solving problems of solving, investigating and preventing crimes. This definition is the result of standardization of proven methods in typical situations.
Establishing the circumstances of a crime at the stage of initiating a criminal case on the principle of consistency of the actions carried out provides for the definition of funds in the form of elements of a general structure that are interconnected as a whole. At the same time, it is not possible to formulate a closed list of elements (means of solving a crime), since this will create serious difficulties in developing a scientifically grounded classification of these means.
Let us consider the main elements (means) that form the system of procedural actions carried out before the initiation of a criminal case when establishing the circumstances of the crime, and their tactics.
Forensic characteristics of a crime is of basic importance for procedural and investigative actions in pre-trial proceedings. According to A.S. Knyazkov, the forensic characteristic of a crime appears as a model of search and cognitive activity, being a form of forensic goals of an investigative action, indicating causal and other connections between elements of a criminal event, which have received their reflection in material and ideal traces. Accordingly, at the stage of initiating a criminal case, the forensic characterization of a crime, in our opinion, performs two functions:
1) theoretical - is the basis for the formation of tactical thinking on the basis of the studied categories of crimes;
2) practical - it is a forensic means of forming a model of a crime, putting forward versions based on the information received and affects the system of procedural actions.
The initial situation as a structural unit of the system of procedural actions is a complex concept. This is due to the fact that the initial situation as a kind of investigative situation should be studied within the framework of the methodology for investigating certain types of crimes. But R.S. Belkin expressed a different point of view, noting that the components and factors influencing the formation of the investigative situation are not related to the types of crimes and have a general meaning for them, which is typical for tactical categories.
In modern legal literature, a lot of attention is paid to the forensic situation, and therefore it does not belong to any section, but forms an independent section - the forensic situation.
As a structural element, the initial situation is a set of phenomena, a situation as a result of a certain set of circumstances, the typification of which determines the formation of abstract models. The development of models of initial situations in the epistemological aspect makes it possible to apply them in practice not as knowledge of this model, but as a way of acquiring knowledge. The initial situation as an element of the system in the applied aspect is the basis for the formation of a system of tactics for checking a crime report. In this regard, its correct assessment and timely recognition of the elements of a conflict situation and counteraction are important.
A survey of practitioners showed that the initial situation is perceived by them as an objective environment in which the investigator has to work - 47%; as a material setting of objective reality - 32%; as an information model, conditioned by material, psychological and other factors, formed for a certain period of time - 17%; found it difficult to answer - 4%.
During the interview, the investigators also explained that at the stage of initiating a criminal case, their activities are aimed at eliminating information uncertainty and establishing signs of corpus delicti. This procedural activity is too narrow for the stage of verification of a crime report, and therefore tactical and procedural mistakes are often made, in connection with which the main task of establishing the circumstances of a crime is complicated, various negative factors are formed.
Information uncertainty forms an information-cognitive situation. The advantage of this situation is the absence of various factors affecting the information channel, such as conflict or opposition, which also carry an information load. Determining the type and nature of the initial situation allows you to eliminate negative factors using tactics and get true information about the crime.
The type of the initial situation depends on the factors that shape it. This information allows you to determine the tactics of influencing these factors for the transition from one situation to another, more favorable for establishing the circumstances of the crime.
Let us single out another factor influencing the change in the nature of the initial situation - psychological means. They relate to the forensic means of establishing the circumstances of the crime and are integral to this process. Procedural verification as a field of human activity is associated with psychology. At the stage of initiating a criminal case, the participants in the audit develop an attitude towards the current situation. And if they perceive what is happening as an objective reality, then the investigator must perceive the participants in the inspection as objects of tactical influence to create a positive information and cognitive environment. Almost all the results of verbal procedural and verification actions depend on the application of psychological means to the participants in the form of tactical techniques.
Criminal procedural means are a unified system of sequential actions aimed at detecting, collecting and researching information about a crime. They are legally defined means of verifying a crime report. As an element of the system, procedural action is one of its central components. This is determined by the fact that the procedural action is a legal "instrument" of the investigator, with the help of which he learns the objective reality in the segment of the crime. At the same time, the procedural action itself is a system of structural elements, more stable in relation to the means of verification as a whole.
A procedural means is a building block in a system. The system implies the interdependence of the elements working in a complex, thereby increasing the efficiency of activities in establishing the circumstances of the crime. A feature of the structure of this system is flexibility and dynamics, the ability to transform, depending on the initial situation and incoming information. Therefore, in one case, the procedural action can act as a result of the analysis of the initial information, in the other, in conditions of information uncertainty, as a means of cognizing the initial information, as a result of which the obtained information includes the rest of the system's elements.
Systematization of procedural means, tactics, combinations and operations is of great practical importance. V.Yu. Shepitko defined this system as an ordered set of interrelated and interdependent techniques that have a targeted focus and selectivity in the process of its implementation.
Logical-heuristic abilities of the investigator. This structural element is one of the main and specific in the system under study, since a tactical decision is a law enforcement officer's reaction to the current situation. The task of the investigator is to build an optimal information model of forensic and procedural means to establish the circumstances of the act. As we have already noted, the system under study is a flexible and dynamic structure of elements. We have defined the logical-heuristic abilities of the investigator as an element of this structure, but it differs in that it allows you to choose the optimal sequence of using procedural means to obtain forensically significant information.
A.A. Cheburenkov distinguishes two levels of defining systems: the first is the formation of a system of tactical techniques as part of a procedural action, and the second is the definition of the internal and external sequence of procedural actions. The combination of tactical techniques within the framework of one procedural action can determine the independent nature of the information-cognitive activity of the investigator, which defines it as a tactical combination. On the other hand, a procedural action can be of an auxiliary or managerial nature within the framework of the implementation of a tactical concept, which is a tactical operation. Combination, algorithmicization, combination, formation - all this provides for the logical-heuristic thinking of the investigator.
Forensic tools include forensic techniques and tactics (tactics, combinations, operations): techniques for the use of technical and forensic tools; tactical methods of conducting a procedural action; behavioral tactics; tactical combinations; tactical operations, which, in turn, may contain components of the structure of the method of forensic knowledge (genetic, correlation).
Forensic means of checking a crime report can ensure the conduct of a pre-investigation check as a whole, as well as influence the structure of a specific procedural action. In this regard, it is important to define the tactical task in the system, the provision of which is carried out by tactical techniques conditioned by the principle of legality. In this case, the interdependence and interdependence of the norms of the criminal procedure law and tactical technique are traced.
Operational search support as an element of the system for establishing the circumstances of a crime is necessary in the following cases: when operational bodies initiate the investigation of a detected crime; when the tactical need arose to involve them; when implementing a tactical operation. Operational search support at the stage of initiation of a criminal case is not just assistance in procedural activities (in the search for attesting witnesses, in carrying out protective measures, etc.), it has a forensic and cognitive nature, which lies in the fact that the interaction of the investigator and the staff of the operational apparatus can be both procedural and non-procedural, its purpose is to provide the investigator with forensic data.
The formation of a system of procedural actions at the stage of initiation of a criminal case begins from the moment a forensic decision is made on the basis of the information received. Let's define this as the first stage of the system and highlight the characteristic structural elements:
Primary information, which includes an information component (semantic load), its form of the content of factual data;
Factual circumstances: the place of the accident, depending on the prescription of the event, the presence of the participants in the event, their interaction in the current situation, the analysis of the interaction of the participants in the check (the presence of a conflict situation);
The process and dynamics of the receipt of primary information about the event that has occurred, which determine the purpose of the investigator's activities - the elimination of information uncertainty and the choice of procedural actions: inspection of the scene of the incident, interviewing persons at the scene of the incident, establishing their awareness of the incident.
The second stage is associated with the emergence of new components, which determine the formulation of new tasks and the determination of ways to solve them. The main goal of this stage is to substantively check the crime report. Along with the main purpose of verification, let us highlight the key component of this stage - obtaining information.
As an element of the system, the information received is:
The subject of verification, which provides for the conduct of certain procedural actions or a whole range of procedural actions aimed at verifying the information received;
Established evidence that can be used to guide tactics, such as displaying an image captured by a DVR during an explanation process;
Information that does not have evidentiary value, but is of an auxiliary nature for the search for new evidence.
In the course of checking a crime report, the tactical system of procedural actions depends primarily on the purpose of the check - to establish factual data about the event that occurred. The second stage involves the actions of an investigator who has certain information about what happened in the framework of the initial situation. In this case, the initial situation is not only an element of the system of means for verifying a crime report, but also the main component influencing the formation of tactical subsystems in procedural actions.
Consider how the nature of the initial situation affects the forensic decisions and procedural activities of the investigator.
In an obvious investigative situation, the investigator checks the crime report using a system of means for searching, detecting, fixing traces and using them as material evidence at subsequent stages of the criminal process. Most often, in such situations, an unambiguous logical sequence for the implementation of procedural actions is used, however, the formation of an optimal system of procedural actions should be based on their effective combination.
We will determine the sequence of procedural actions, depending on the observance of the temporary, information-evidentiary and organizational-tactical principles. This approach is applicable to various initial situations, and these principles can be considered as factors. For example, the temporal principle as a factor determines the sequence and implementation of procedural actions aimed at removing traces, the delay with which threatens to lose them (inspection of the scene during the rain, obtaining an explanation from a citizen with a wound, etc.).
In an unobvious initial situation, the activity of the investigator is aimed at finding and fixing traces of the crime, identifying the person who committed it.
In this case, the defining component of the system of means for verifying a crime report is interaction with operational agencies, which should be of an organizational and managerial nature. But this is preceded by the forensic decision of the investigator, based on the information received, the forensic characteristics of the crime and its logical heuristic capabilities. The system of these components, in interaction with forensic means, determines tactical combinations or operations to identify the person who committed the act.
Taking into account the temporal features of the stage of initiating a criminal case, namely, the beginning of a pre-investigation check within the framework of an unobvious crime, the tactical system for the most part relies on the consistent application of procedural actions. In the future, the sequence takes on the character of tactical consistency.
Let us consider the logical structure of the system of procedural actions when checking messages for non-obvious crimes (proposed on the basis of an analysis of the works of a number of scientists). This structure includes:
a) orientation of the procedural subject of verification (inspection of the scene of the incident, interviewing eyewitnesses, search measures);
b) obtaining initial data from the main circumstances that allow building versions (inspection of the scene of the incident, objects (documents), a corpse, interviewing citizens, eyewitnesses);
c) detection, collection, fixation and investigation of traces of a crime. These actions can be carried out as a result of inspection of the scene of the incident, objects (documents), corpse, examination. To conduct a study, it may be necessary to carry out procedural actions of an interim character (obtaining samples for a comparative study, inquiries, etc.);
d) identification, search and detention of a criminal in hot pursuit. These can be search activities carried out by the bodies of inquiry during the work of the investigator with traces of the crime, with the expectation that the criminal did not have time to escape. If there is information that makes it possible to identify the person who committed the crime, then the arrest of the offender determines the need to plan and develop a tactical operation depending on the severity of the crime, public danger, the need to use technical means, etc. It is possible to use an alternative sequence, that is, the implementation of various combinations of procedural actions, aimed at identifying and detecting the offender. For example, searching for a criminal by working out versions in parallel during search activities and door-to-door interviews, collecting data on previously committed similar crimes, checking against forensic databases, combining tactics in the framework of procedural actions (presenting an expert opinion to suspected persons, observing their reaction and etc.);
e) prevention of dangerous consequences from the committed crime and provision of compensation for the damage caused. For this, search measures can be carried out to establish the location of weapons, explosive devices, stolen property, etc. During the inspection of the scene, the investigator can establish what the criminal was moving on. Depending on the subject and forensic characteristics of the crime, it is necessary to check the possible places of shelter of objects and instruments of crime, the sale of stolen property.
In a conflict initial situation, the activity of the investigator is also aimed at establishing factual data about the crime by overcoming the conflict through parallel production of procedural actions and at clarifying the circumstances of the incident. In this case, the main components of the system of means for verifying a crime report are psychological and forensic means for establishing communicative contact with the participants in the verification. The conflict situation as a factor that negatively affects the pre-investigation check determines the system of applying procedural actions in the tactical and forensic aspect of solving tactical problems in specific situations. Determination of the sequence of procedural actions depends on the form of the conflict:
a) a conflict in the form of a threat to destroy the traces of a crime. In this case, the urgent task is to preserve the traces, which determines the promptness of the actions of the investigator and operational workers to fix them, remove them and ensure their safety;
b) an urgent task in a conflict situation resulting from the emotional state of its participants is to overcome the conflict. This is possible through:
Establishing communicative contact using tactical techniques in the course of receiving explanations from citizens;
Distracting the attention of the conflicting participant in the check for the production of procedural actions aimed at checking the report of the crime (the police officer can divert attention by entering into a dialogue with the conflicting participant about the crime or on an abstract topic);
The use of an alternative sequence of procedural actions, if the conflict manifests itself in the unwillingness to provide information to the investigator. This method consists in obtaining information about the crime from other sources: material traces of the scene of the incident, explanations of other participants in the check, etc. After that, it is necessary to inform the conflicting person about the available information and possible negative consequences of his behavior.
In the initial situation of a mixed nature (the person who committed the crime is established, but his whereabouts are unknown; the initial situation is not obvious, and the victim opposes the establishment of information about the crime, etc.), it is necessary to use several organizational and tactical techniques to solve various tasks aimed at a single goal ... Compliance with the logical order of solving these problems by building a tactical combination within the framework of one procedural action or the implementation of several procedural actions should form a single system of tactics of procedural actions. Each stage of such a system is associated with the solution of some tasks and the setting of others: detection of traces of a crime, seizure, investigation.
The third stage of the stage of initiation of a criminal case includes the analysis of the information received and their assessment for the presence and sufficiency of signs of corpus delicti of any crime provided for by the current legislation. In this case, the tactical system of procedural actions consists in the correlation of the information received and the provisions of the criminal and procedural law.
Thus, our proposed classification of the system of procedural actions depends on the components and stages of the stage of initiating a criminal case and, in general, consists of three stages: collection of orienting information aimed at overcoming information uncertainty; checking the crime report; assessment of the information received for the presence of signs of corpus delicti.
Summing up the above, we note that the system of procedural actions in forensic science and criminal procedure are fundamentally different concepts due to their internal structure, functions, tasks and goals, despite the coinciding content of the elements. The system, as a ready-made algorithm of actions, developed for a specific category of crime or situation, is orienting in nature. Development of application systems is possible, but none of these systems will be absolutely perfect. The effectiveness of the system of procedural actions depends on its structural component and the interrelation of elements, dynamics and the possibility of change depending on the incoming information.
The stage of initiation of a criminal case is characterized by increasing dynamics, while its internal structure is sensitive to external factors affecting the initial situation, the behavior of the participants in the inspection, etc. the prospect of a pre-investigation check.
The main way of collecting and checking evidence at the stage of preliminary investigation is the production of investigative actions.
Investigative actions are operations carried out in strict accordance with the law, aimed at the discovery, consolidation and verification of evidence.
Only the person in charge of the investigation and the supervising prosecutor have the right to carry out investigative actions. On behalf of the investigator, individual investigative actions in the case that are in his production may be carried out by the bodies of inquiry or other investigators.
Investigative actions can be carried out only after the initiation of a criminal case. An exception was made only for the inspection of the scene of the incident, examination and appointment of an expert examination, which can be carried out before the initiation of a criminal case.
For the production of investigative actions, grounds are necessary - factual data indicating the need for certain investigative actions.
As a rule, investigative actions are carried out at the initiative of the investigator or the person conducting the inquiry. But they can also be made at the direction of the prosecutor, the head of the investigation department, the head of the body of inquiry. In addition, the law establishes cases of compulsory production of investigative actions. Thus, a person must be interrogated as a suspect no later than 24 hours from the date of the decision to initiate a criminal case or actual detention (Article 46 Suspect). After the presentation of the charge, the questioning of the accused must immediately follow (Article 173 Interrogation of the accused). To establish certain circumstances, an expert examination must be carried out (Article 196 of the Code of Criminal Procedure of the Russian Federation).
Investigative actions include:
1) interrogation;
2) confrontation;
3) inspection;
4) examination;
5) search;
6) notch;
7) presentation for identification;
8) investigative experiment;
9) the seizure of postal and telegraphic items, their inspection and seizure;
10) control and recording of conversations;
11) verification of testimony on the spot;
12) appointment and production of expert examination.
Some authors refer to investigative procedural actions as:
1) seizure of property;
2) exhumation of a corpse,
3) obtaining samples for comparative research;
4) placement of a person in a medical institution for the production of an expert examination.
However, with the help of these actions, they do not receive new evidentiary information, therefore they cannot be considered investigative in the literal sense. Nevertheless, these actions are closely related to investigative ones, they prepare and ensure their production in order to obtain new evidence. Therefore, they are usually discussed in the section "Investigative actions".
When carrying out investigative actions, the investigator is obliged to ensure the protection of the rights and interests of citizens. The law prohibits in the process of collecting evidence to commit actions that humiliate the honor and dignity of citizens or are associated with danger to life and health. When carrying out investigative actions, the use of violence, threats and other illegal measures is unacceptable; it is impossible to carry out investigative actions at night, except in cases of urgent delay.
In the process of investigative actions, measures should be taken to protect property, state secrets, as well as non-disclosure of information about the intimate aspects of the life of the persons participating in them.
Such investigative actions as examination, search, seizure, examination, exhumation are carried out on the basis of a decision of the investigator. For the production of other investigative actions, the issuance of a decision is not required. The course and results of any investigative action are recorded in the corresponding protocol.
Inspection of the dwelling without the consent of the persons living in it; search or seizure of a home; personal search1; seizure of items and documents containing information on deposits and accounts in banks and other credit institutions; the seizure of correspondence and its seizure in communication establishments; control and recording of telephone and other conversations are carried out on the basis of a court decision.
In these cases, the investigator, with the consent of the prosecutor, initiates a petition before the court for the performance of an investigative action, about which a resolution is issued.
The petition, no later than 24 hours, shall be considered by a single judge of the district court at the place of the preliminary investigation or the production of the investigative action. The prosecutor and the investigator have the right to participate in the court session. Having considered the petition, the judge shall issue a resolution to authorize the production of an investigative action or to refuse to proceed with it, indicating the reasons for the refusal.
In exceptional cases, when the inspection of a dwelling, a search and seizure in a dwelling, as well as a personal search is urgent, these investigative actions can be carried out on the basis of a decision of the investigator without obtaining a court decision. In this case, the investigator is obliged to notify the judge and the prosecutor about the performance of the investigative action within 24 hours. Copies of the decision and the protocol of the investigative action are attached to the notification. The judge must also, within 24 hours from the date of receipt of the notification, make a decision on the legality or illegality of the investigative action performed. If the investigative action is declared illegal, all evidence obtained with its help is excluded from the proving process as inadmissible.
The seizure of objects and documents containing state secrets or other secrets protected by federal law is carried out with the sanction of the prosecutor.
During the search, personal search, seizure, examination, presentation for identification, investigative experiment, examination and seizure of detained correspondence, examination and listening to a phonogram, verification of testimony on the spot, exhumation of a corpse, at least two attesting witnesses must be present. Anyone who is not interested in the outcome of the case can be attesting witnesses, who are obliged to certify the fact, content and results of the actions in which they were present1. The attesting witnesses present during the conduct of the personal search must be of the same gender as the person being searched.
In the production of an investigative action, a specialist can participate, which can be any person who is not interested in the outcome of the case and has special knowledge in a particular area. In addition, the investigator has the right to involve operational officers in the investigative action, about which a corresponding note is made in the protocol.
If persons who do not know the language in which the proceedings are being conducted are involved in the investigative action, they must be provided with an interpreter.
During the performance of investigative actions, technical means may be used that are necessary for the detection, fixation or seizure of evidence. The use of such means should be reflected in the protocol of the investigative action.
13.2 Inspection
Inspection is an investigative action, during which, visually and with the use of technical means, a general examination of the scene, terrain, premises, dwelling, corpse, objects and documents is carried out in order to detect, describe and remove traces of a crime and establish circumstances that are significant for a criminal case.
The essence of the examination lies in the fact that the investigator, through observation, comparison, measurement, application of other methods of cognition, convinces himself of the existence of facts that have evidentiary or other significance for the criminal case and certifies their existence by drawing up a procedural document provided for in the law.
The basis for the inspection is the presence of a reasonable assumption by the investigator that during the performance of this or that type of investigative examination, traces of a crime may be found, other circumstances that are important for the criminal case have been clarified.
The significance of the investigative examination is that this investigative action allows you to obtain the initial data for the advancement of versions, as well as to form the most accurate and complete picture of the nature and mechanism of the incident, is one of the most reliable ways of obtaining evidentiary information. Investigative examination of the scene, in some cases, is of decisive importance to establish the presence or absence of grounds for initiating a criminal case. In cases of urgency, the law allows the inspection of the scene of the incident before the initiation of a criminal case (part 2 of article 176 of the Criminal Procedure Code of the Russian Federation).
The following types of investigative examination are distinguished:
the scene of the incident,
terrain,
dwellings,
other premises,
items and documents,
examination of the corpse.
In investigative practice, there are also cases of examination of animals.
An investigative examination can be carried out both as an independent investigative action, and in the course of other investigative actions (for example, a document or object can be examined during a search or seizure, during an inspection of the scene of an incident if a corpse is present, it can be examined, etc.) ).
If the inspection is carried out as an independent investigative action, then its progress and results are recorded, respectively, in the protocols of the inspection of the scene of the incident, the inspection of objects (documents), the protocol of the inspection of the area, dwelling, other premises, the protocol of the examination of the corpse, taking into account the requirements of Article 166 of the Code of Criminal Procedure of the Russian Federation (Protocol of the Investigative actions) and Article 167 of the Criminal Procedure Code of the Russian Federation (Certification of the fact of refusal to sign or the impossibility of signing the protocol of the investigative action).
The form of the forms of these procedural documents is enshrined in article 476 of the Criminal Procedure Code of the Russian Federation (List of forms of procedural documents of pre-trial proceedings):
the protocol of the inspection of the scene of the incident - Appendix 4 of Article 476 of the Code of Criminal Procedure of the Russian Federation;
the protocol of the examination of the corpse - Appendix 5 of Article 476 of the Code of Criminal Procedure of the Russian Federation;
protocol of inspection of objects (documents) - Appendix 51 of Article 476 of the Code of Criminal Procedure of the Russian Federation;
protocol of inspection of the area, dwelling, other premises - Appendix 86 of Article 476 of the Code of Criminal Procedure of the Russian Federation.
In the event that a corpse is removed from a burial place and its subsequent examination, a protocol of exhumation and examination of the corpse is drawn up - Appendix 44 of Article 476 of the Code of Criminal Procedure of the Russian Federation.
13.3. Certification
An examination is an investigative action consisting in an external examination of a human body in order to detect traces of a crime, special signs, bodily harm, as well as to identify a state of intoxication or other properties and signs that are significant for a criminal case, if this does not require a forensic examination.
As a result of exposure to any substances related to a crime, traces that are significant for the case may form on the human body (stains of blood, semen, microparticles of soil, vegetation, fibers, particles of chemicals used in the commission of a crime, etc.), as well as bodily injuries (traces of wounds, bites, burns, abrasions, scratches), which can be detected by visual inspection.
Often, special signs are important for identifying the identity of a suspect, accused, victim, witness - birthmarks, tattoos, body defects, traces of previous operations, etc.
Examination can also be carried out to identify alcoholic, narcotic, toxicological intoxication in a person or to determine other physiological conditions. This may be evidenced by the smell of isot, the condition of the eyes, impaired coordination of movements, etc.
Other properties and signs that are significant for the case can be, for example, signs indicating a certain occupation of the person being examined - calluses on the hands resulting from certain actions, a special color of the skin associated with production activities, etc.
An accused, a suspect, a victim, as well as a witness, with his consent, can be examined. However, in cases where an examination is necessary to assess the credibility of a witness's testimony, his consent to proceed with his examination is not required. This investigative action affects the personal integrity of citizens, therefore, the law establishes specific rules for its implementation, as well as guarantees for the protection of the rights, honor and dignity of the person being examined. During the examination, actions that humiliate the dignity or endanger the health of the examined person are not allowed.
A resolution is issued on the performance of the survey, which is binding on the person in respect of whom it was issued.
If necessary, the investigator may involve a doctor or other specialist in the examination.
Before the examination, the investigator reads out the resolution and explains to the participants in the investigative action their rights and obligations.
The investigator is not present during the examination of a person of the opposite sex, if it is accompanied by the nudity of this person. In this case, the examination is carried out by a doctor. In this case, photographing, video recording and filming are carried out only with the consent of the person being examined.
A protocol is drawn up on the performance of the survey. In the introductory part, the surnames, first names, patronymics of all participants in the investigative action, the conditions of the examination (in which room, at what time of day, lighting, etc.) are indicated. The protocol must reflect the fact that the participants in the examination have explained their rights and obligations. The descriptive part lists all the actions of the investigator (or the person performing the examination in his place), as well as everything that was discovered in the sequence as it was observed during the investigative action. The protocol is signed by all participants in the survey, who have the right to demand the introduction of additions and amendments to it.
13.4. Investigative experiment
An investigative experiment is an investigative action consisting in the reproduction of actions, situations or other circumstances of a certain event in order to verify and clarify data relevant to the case.
This investigative action can be carried out to establish the occurrence of an event; establishing the possibility of perception of any facts by a certain person in certain conditions; the possibility of performing certain actions or to identify the sequence of an event and the mechanism for the formation of traces; the presence of professional or criminal skills among any of the participants in the process, etc.
An investigative experiment is carried out by:
1) reproduction of the situation or other circumstances of a certain event (reconstruction);
2) production of experimental actions;
3) a combination of reconstruction and experimental action.
The issuance of a special resolution on the conduct of an investigative experiment is not required.
The investigative experiment is carried out in the presence of attesting witnesses. If necessary, the suspect, the accused, the victim and the witness, as well as a specialist, expert, translator and other persons can participate in it.
The conduct of an investigative experiment is allowed provided that this does not humiliate the dignity and honor of the persons participating in it and those around them and does not create a danger to their health.
If necessary, in the course of an investigative experiment, measurements, photographing, video recording, filming are made, plans and diagrams are drawn up.
A protocol is drawn up on the production of an investigative experiment. It indicates: for what purpose, when, where and under what conditions the investigative experiment was carried out, the evidence to be verified, the operations performed by the participants in the experiment during its preparation, reproducing the circumstances of the event being checked or when performing experimental actions, what results were obtained. The minutes must reflect the facts of explaining to the participants their rights and obligations, as well as the use of scientific and technical means.
13.5. Search and seizure
A search is an investigative action, which consists in examining premises, areas of terrain or individuals in order to find and seize objects and documents that are important for the case, as well as to find wanted persons or corpses.
The basis for conducting a search is the availability of sufficient data to believe that in any place or in any person there may be instruments of crime, other objects, documents, valuables that may be relevant to a criminal case, as well as wanted persons or corpses.
Seizure is an investigative action that consists in the seizure of certain items and documents that are significant for the case, if it is known exactly where and from whom they are.
Search and seizure differ from each other on the grounds of their conduct: a search is carried out in cases where there is only an assumption about the finding of any items that are significant for the case, in a certain place or at a certain person. The seizure is carried out when it is known exactly where, from whom and which items and documents must be seized.
As for the rest, the search and seizure do not differ from each other, therefore the procedure for their production is regulated in the law in the same way.
A reasoned decision is also issued on the performance of the search and seizure.
A search and seizure in a home is carried out on the basis of a court decision, with the exception of urgent cases, with the subsequent notification of the judge and the prosecutor within 24 hours from the moment the corresponding investigative action begins.
In addition, on the basis of a court decision, the seizure of documents containing information on deposits and accounts of citizens in banks and other credit organizations is carried out. The seizure of objects and documents containing state secrets or other secrets protected by federal law is carried out by the investigator with the sanction of the prosecutor.
During a search and seizure, the presence of attesting witnesses, as well as the person in whose home these investigative actions are being carried out, or an adult member of his family, must be present. If their presence is impossible, representatives of the housing maintenance organization or the local administration are invited. With the permission of the investigator, a defense lawyer, as well as a lawyer of the person in whose premises the search is being carried out, may be present during a search or seizure.
Searches and seizures at enterprises, institutions or organizations are carried out in the presence of a representative of the given enterprise, institution or organization.
At night, searches and seizures are allowed only in urgent cases.
When proceeding with the seizure and search, the investigator is obliged to present a decree or a court decision on this. The persons participating in the investigative action are explained their rights and obligations, and a note is made about this in the protocol.
Then the investigator proposes to voluntarily give out items and documents or instruments of crime, items and values obtained by criminal means, as well as other items and documents that may be of significance to the case, to be seized. If they were issued voluntarily and there is no reason to fear the concealment of the wanted objects, the investigator has the right to confine himself to the seizure of the issued and not to carry out further searches. Otherwise, the investigator proceeds to the search or carries out the seizure forcibly.
During a search or seizure, the investigator has the right to open locked rooms or storage facilities if the owner refuses to voluntarily open them, avoiding unnecessary damage to property. He must take measures to ensure that the circumstances of the private life of a person, his personal or family secrets, or the circumstances of the private life of others, revealed in the course of a search or seizure, are not made public.
The investigator may prohibit persons in the premises where the search or seizure is carried out from leaving it, as well as communicating with each other or other persons until the end of the investigative action.
All discovered and seized items are subject to presentation to the persons participating in the seizure and search, and are described in detail in the protocol. If necessary, they are packed and sealed. In any case, items and documents taken from circulation should be seized, even if they are not relevant to the case.
A protocol is drawn up on the performance of the search and seizure. It indicates: where, when and on what basis the search or seizure was carried out, the content and results of the investigative action. With regard to the seized items and documents, it is noted whether they were issued voluntarily or forcibly seized, in what place and under what circumstances they were found. All seized items must be listed in the protocol with a precise indication of the quantity, measure, weight, if possible, value and other individual characteristics.
If during the search or seizure there were attempts to destroy or hide the items and documents to be seized, then a corresponding entry should be made in the protocol and indicated what measures were taken. The protocol is signed by the investigator and all participants in the investigative action. A copy of the protocol is handed over against receipt to the person whose home was searched or seized, or to adult members of his family, and in their absence - to the representative of the housing maintenance organization or the local administration.
A personal search consists of an examination of clothing, footwear and a person's body in order to find and seize items and documents that are relevant to the case. A personal search is carried out on the basis of a court decision.
At the same time, in some cases, the law allows for the conduct of a personal search without a court decision:
1) upon arrest of a person;
2) taking him into custody;
3) if there are sufficient grounds to believe that the person who is in the place where the seizure or search is carried out is hiding objects and documents that may be relevant to the case.
A personal search is carried out by a person of the same sex as the person being searched, in the presence of attesting witnesses (and, if necessary, specialists) of the same sex.
13.6. Seizure of postal and telegraphic items, their inspection and seizure
In accordance with Art. 23 of the Constitution of the Russian Federation everyone has the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages. Limitation of this right is allowed only on the basis of a court decision.
Such a limitation is possible if there are sufficient grounds to believe that the parcels, parcels, other postal and telegraphic items, telegrams or radiograms may contain objects, documents or information that are relevant to a criminal case. In these cases, the investigator issues a resolution on the initiation of a motion before the court for the seizure of postal and telegraphic items and for their examination and seizure.
The petition must indicate: the surname, name, patronymic and address of the person whose postal and telegraph dispatches are to be delayed; grounds for seizure, inspection and seizure; types of postal and telegraphic items subject to arrest; the name of the post office, which is charged with the duty to detain the corresponding postal and telegraphic items.
Based on the results of consideration of the petition, the judge issues a reasoned decision to authorize or prohibit the conduct of investigative actions related to the restriction of the right to confidentiality of correspondence and other messages.
If the court decides to seize the postal and telegraphic items, a copy of it is sent to the appropriate post office, which is instructed to detain the postal and telegraphic items and immediately notify the investigator about it.
The investigative action under consideration includes three interrelated and at the same time independent actions of the investigation body:
1) the seizure of postal and telegraphic items;
2) their inspection
3) notch.
The seizure of postal and telegraphic items is a prohibition by the post office from delivering them to a specific person without the permission of the investigating authority.
The seizure of postal and telegraphic items is carried out for the purpose of:
1) obtaining evidence about the circumstances relevant to the case;
2) the temporary suspension of the correspondence of certain persons;
3) establishing the whereabouts of the wanted accused, etc.
The Code of Criminal Procedure of the Russian Federation does not contain a list of persons whose postal and telegraphic items may be seized. As a rule, such arrest is imposed on the correspondence of the suspect, the accused and those associated with them.
The head of the communications office, having received the seized postal and telegraphic item, detains him and informs the investigator about it. After receiving such a message, the investigator arrives at the post office to inspect the received shipment.
Inspection of a postal and telegraph item is an acquaintance with its contents. It is carried out in the presence of attesting witnesses from among the employees of the relevant communications institution.
If an item, documents or information of importance to the case is found in the inspected item, the investigator seizes this item, that is, confiscates it.
If necessary, the investigator has the right to invite a specialist, as well as an interpreter, to participate in the inspection and seizure of postal and telegraph items.
A protocol is drawn up on the performance of the inspection and seizure of a postal and telegraph item, which indicates which items were examined, what is the content of the inspected correspondence, what was seized. If, according to the circumstances of the case, it is necessary that the addressee received the correspondence, it is not withdrawn, but a copy of it or an extract from it is made, which should be reflected in the minutes.
The seized postal and telegraphic item, which is to be used in the process of proving, shall be attached to the materials of the criminal case.
The investigator cancels the seizure of postal and telegraphic items by a resolution when the application of this measure is no longer necessary, but not later than the completion of the preliminary investigation in this criminal case. The court that made the decision to impose the arrest, the prosecutor and the relevant post office shall be notified of the cancellation of the arrest.
13.7. Control and recording of conversations
Control and recording of negotiations is carried out in cases where there are sufficient grounds to believe that the negotiations between the suspect, the accused, and other persons may contain information relevant to the criminal case.
This investigative action consists in listening by specially authorized bodies (FSB and the Ministry of Internal Affairs) of telephone and other conversations, as well as in recording them using any means of communication (technical means) for the purpose of subsequent examination and reproduction of phonograms.
Other negotiations are understood as any negotiations using wired and wireless communications, as well as through direct communication.
The investigative action under consideration significantly limits the constitutional right of citizens to the secrecy of negotiations, therefore, the law establishes additional guarantees for the legality of its production.
Thus, control and recording of negotiations is allowed only in criminal cases of grave and especially grave crimes and only on the basis of a court decision. At the same time, Part 2 of Art. 13 of the Code of Criminal Procedure of the Russian Federation allows in cases of urgency, provided for in Part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation, the production of control and recording of negotiations without a court decision, with the subsequent notification of the judge and the prosecutor about the investigative action performed. However, it should be noted that between Part 2 of Art. 13 and part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation, there are contradictions, since the last rule deals only with exceptional cases of production without obtaining a court decision of a search, seizure of a home and a personal search in cases that do not tolerate delay. These norms must be harmonized with each other.
In addition, obtaining a court decision to control and record negotiations is not required when a written statement of the victim or witness is received when there is a threat of violence, extortion and other criminal actions against themselves or their loved ones. However, if there is no written statement in such cases, a court decision must still be obtained.
An investigator's petition for control and recording of telephone and other conversations must indicate: in which case it is necessary to carry out this investigative action; the grounds for its application; data about the person whose negotiations are subject to control and recording; the term of the investigative action and the name of the body entrusted with its technical support.
The production of control and recording of telephone and other conversations may not last more than 6 months. If the need for this measure disappears, it is terminated by order of the investigator. Control and recording of negotiations after the completion of the preliminary investigation is not allowed.
The investigator at any time has the right to demand from the body exercising control and recording of negotiations, a phonogram for examination and listening. It must be handed over to the investigator in a sealed form with a cover letter, which must indicate the date and time of the beginning and end of the recording of the negotiations and the characteristics of the technical means used.
The investigator shall examine and listen to the phonogram with the participation of attesting witnesses. If necessary, a specialist is invited, as well as persons whose telephone and other conversations were recorded. The investigator draws up a protocol on the results of the examination and listening, in which the part of the phonogram that is relevant to the case is stated verbatim. Persons participating in the inspection and wiretapping have the right to state their comments on the protocol.
The phonogram is fully attached to the materials of the criminal case as material evidence, about which the investigator issues a resolution. It should be stored in a sealed form under conditions that ensure its technical suitability, but at the same time it should be excluded the possibility of its listening and replication by unauthorized persons.
13.8. Interrogation. Confrontation
Interrogation is an investigative action, during which they receive oral testimony from the interrogated about the circumstances known to him, subject to establishment in a criminal case.
The interrogation of the witness and the victim is carried out according to the same rules. The only difference is that a motivated decision is made on recognizing a person as a victim (Decision on recognizing a victim) and giving testimony is not only his duty, but also a right: the investigator is obliged to interrogate the victim in case of his petition about it (since (p. .2 part 2 article 42 (victim)) the victim has the right: 2) to testify)
Interrogation, as a rule, is carried out at the place of the preliminary investigation. However, if necessary, it can be carried out at the location of the interrogated person (at home, in the hospital, etc.)
The interrogation cannot last continuously for more than 4 hours, after which there must be a break for at least one hour, while the total duration of the interrogation during the day must not exceed 8 hours. In addition, in case of illness of the interrogated, the duration of the interrogation is established on the basis of the doctor's conclusion.
The witness (victim) is summoned for interrogation with a summons (Summons for interrogation. Summons for summons for interrogation of a person under 16 years of age), which is handed to him against receipt or transmitted by means of communication. In the event of a temporary absence of the person summoned for interrogation, the summons is handed over to one of the adult members of his family, a representative of the housing maintenance organization, the administration at his place of work or his place of residence. In case of failure to appear without good reason, the person summoned for interrogation may be brought in or other measures of procedural coercion may be applied to him (part 2 of article 111 of the CCP: obligation to appear (article 112), drive (article 113) , pecuniary punishment (Article 117; 118)).
Before the start of the interrogation, the investigator verifies the identity of the interrogated by checking the relevant documents, explains to him his rights and obligations. The witness and the victim are warned about criminal liability for refusing to testify and giving deliberately false testimony, about which a note is made in the interrogation protocol, certified by the signature of the interrogated.
If there are doubts whether the person being interrogated speaks the language in which the proceedings are being conducted, then it is necessary to find out in which language he wishes to testify and, if necessary, invite an interpreter.
During the interrogation of the victim, his representative may be present, who has the same rights as the victim. A witness has the right to appear for interrogation with a lawyer invited by him to provide legal assistance. In this case, the lawyer is present during the interrogation and has the right to give the witness brief consultations in the presence of the investigator, ask the witness with the permission of the investigator, make written comments about the correctness and completeness of the records in the interrogation protocol. The investigator can deflect the questions of the defense lawyer, but is obliged to enter them into the protocol. The interrogation tactics are determined by the investigator. The law prohibits only asking leading questions, i.e. those in the wording of which the desired answer is contained.
The interrogated person has the right to use documents and records; can make diagrams, drawings, pictures, diagrams. During the interrogation, photography, audio or video recording, filming may be carried out.
The course and results of the interrogation are reflected in the protocol.
The testimony of the interrogated is recorded in the first person and, if possible, verbatim. All questions and answers to them are recorded in the protocol.
The protocol should reflect the facts of presentation of material evidence and documents to the interrogated, announcement of protocols of other investigative actions, playback of audio or video recordings of investigative actions, as well as the testimony of the interrogated person, given in this case.
If during the interrogation, technical means of fixation were used, then the protocol should contain information about them and the conditions for their use.
At the end of the interrogation, the protocol is presented to the interrogated for reading or read aloud to him, after which he has the right to demand that the protocol be supplemented and amended. These additions and amendments are subject to mandatory entry into the protocol. After reading the protocol, the interrogated certifies that the testimony was recorded correctly, about which a note is made in the protocol. The protocol is signed by all persons who participated in the interrogation. If the protocol is written on several pages, then the interrogated person signs each page.
If the person participating in the interrogation refuses to sign the protocol or it is impossible to sign it due to physical disabilities or health conditions, a corresponding entry is made in it, certified by the signature of the investigator, as well as the defense lawyer, legal representative, representative or attesting witnesses, who confirm the contents of the protocol with their signatures and the fact that it is impossible to sign it.
The person who refused to sign the protocol should be given the opportunity to give an explanation of the reasons for the refusal, which is also entered into the protocol.
The law provides for slightly different rules for interrogating a minor. Thus, a person under the age of 16 is summoned for interrogation through his legal representatives or through the administration at his place of work or study (Summons for interrogation of a person under 16 years of age). If a witness or victim has not reached the age of 16, he is explained the need to give truthful testimony, but he is not warned about criminal liability for refusal and giving deliberately false testimony.
Interrogation of a witness (victim) under the age of 14, and at the discretion of the investigator, up to 18 years, is carried out with the participation of a teacher. During the interrogation of a minor victim or witness, his legal representative may be present.
The interrogation of the suspect and the accused is carried out basically according to the same rules as the interrogation of a witness (victim).
The features are as follows:
The suspect and the accused are not criminally liable for refusing to testify or for knowingly giving false testimony.
The person must be questioned as a suspect:
1) if it has been initiated against this person;
2) if he is detained on suspicion of committing a crime;
3) if one of the preventive measures has been applied to him prior to the presentation of charges.
The suspect must be questioned no later than 24 hours from the date of the decision to initiate a criminal case or actual detention.
The questioning of the accused must follow immediately after the charge is brought.
Before the start of the interrogation, the suspect and the accused must be explained their procedural rights and obligations. In addition, the suspect is told what crime he is suspected of committing, and the accused must be asked whether he pleads guilty and whether he wants to testify on the merits of the charge.
Confrontation
Face-to-face confrontation is the simultaneous interrogation of two previously interrogated persons, in whose testimony there are significant contradictions.
Face-to-face confrontation is carried out in order to clarify the reasons for these contradictions, eliminate them and obtain truthful testimony from both persons. A face-to-face confrontation cannot be made between persons who were not previously interrogated, as well as persons in whose testimony about the same circumstances there are no significant contradictions. At the same time, in some cases, even in the presence of significant disagreements in the testimony, it is impractical to conduct a confrontation, for example, if there are fears that a bona fide participant in the process, under the influence of the second interrogated, may change his testimony.
The question of whether the contradictions in the testimony are significant or not is decided by the investigator, taking into account the circumstances of the crime and the significance of the testimony of each of the previously interrogated persons.
Face-to-face confrontation can be held between:
two witnesses or victims;
witness and victim;
witness and accused (suspect);
the victim and the accused (suspect);
two accused (suspects);
accused and suspect.
Significant contradictions in the testimony may relate to various circumstances included in the subject of proof. Each participant in this investigative action gives testimony in the presence of the other and has the opportunity to personally verify that the other person gives the appropriate testimony.
If the participants in the confrontation are witnesses or victims, then before the start of the interrogation, they are warned of criminal liability for refusing to testify and for giving deliberately false testimony, about which a note is made in the protocol, sealed with their signatures. The accused and the suspect are not warned of such responsibility.
At the beginning of a confrontation, the investigator asks the interrogated whether they know each other and what kind of relationship they have with each other. After that, they are invited to give testimony in turn about the circumstances in which they have significant contradictions. After giving testimony to each of the interrogated, the investigator can ask questions. With his permission, the participants in the confrontation can ask questions to each other, which is noted in the protocol.
The disclosure of earlier given testimonies of the participants in the confrontation and the reproduction of the sound recording of these testimonies is allowed only after they have given testimony at the confrontation and recorded them in the protocol.
A protocol is drawn up on the production of a confrontation. The testimony of each person being interrogated is recorded in the first person, if possible, verbatim and in the order in which they were given. Then the questions asked and the answers to them are recorded.
The participants in the confrontation get acquainted with the content of the protocol and have the right to demand that it be supplemented and corrected. They sign all their testimony and, in addition, each page of the protocol and the protocol as a whole. The investigator signs the protocol after the interrogated.
An interpreter, a specialist, a defender of the accused (suspect), a legal representative of a minor may take part in the production of a confrontation. A witness may attend a confrontation with a lawyer. The latter enjoys the same rights as when questioning a witness. In the production of a confrontation with the participation of minors, the same rules apply as in the interrogation of a juvenile.
In cases where the confrontation does not reach the goal, i.e. it was not possible to eliminate the contradictions in the testimonies of the interrogated, it is necessary to check them with the help of other investigative actions.
13.9. Presentation for identification
Presentation for identification is an investigative action in the course of which an object is presented to the identifier in order for him to establish its identity or difference with the object about which he previously gave evidence.
The presentation for identification must necessarily be preceded by the interrogation of the identifying person. It can be a witness, victim, suspect or accused. The protocol of the interrogation should reflect whether this participant in the process will be able to identify any person or object that he has previously observed and on what grounds.
If he declares that he will not be able to identify the object or cannot name any special signs or attributes of the object, the presentation for identification loses all meaning.
Depending on the object, a presentation for identification of a face, object, or corpse is distinguished. In practice, there is also a presentation for identification of animals, rooms, buildings, terrain and other objects.
Presentation for identification is made in the presence of attesting witnesses.
The person is presented for identification together with other persons, if possible, similar to each other in appearance (of the same sex, approximately the same height, age, if it matters - with the same hair color, eyes, in similar clothes, etc.). The total number of persons presented for identification must be at least three. This rule does not apply to the identification of a corpse.
Before the start of the investigative action, the identifiable person is invited to take any place among the presented persons, about which a note is made in the protocol.
The object is presented for identification in a group of similar objects in an amount of at least three. They are usually located under the corresponding numbered cards. The protocol must indicate the number under which the identifiable object is located.
If it is impossible to present a person or object in kind for identification, it can be made from a photograph presented simultaneously with photographs of other persons or objects that are outwardly similar to the identifiable one. The number of photographs must be at least three, which are also located under the numbers.
The identifier is invited to the room where the identification is carried out only after performing the specified actions.
If a witness or a victim is the identifying person, then they are warned about responsibility for refusing to testify and for knowingly giving false testimony, which is noted in the protocol.
The identifier is invited to inspect the presented objects and indicate the person or object about which he previously gave evidence, as well as to report on what signs or signs he made the identification. Leading questions are not allowed.
It is impossible to carry out repeated identification of a person or object with the same identifying person and according to the same characteristics.
If there is a threat to the security of the identifying person, by the decision of the investigator, identification can be carried out under conditions that preclude visual observation of the identifying person. In this case, the attesting witnesses are at the location of the identifying person.
A protocol is drawn up on presentation for identification. It contains information about the identity of the identifying person, about the persons and objects presented for identification, and, if possible, literally sets out the testimony of the identifying person. If the presentation of a person for identification was carried out under conditions that exclude visual observation by the identifiable identifier, then this fact must be reflected in the protocol. The protocol is read out loud by the investigator. Persons participating in this investigative action have the right to demand that it be supplemented and corrected. The protocol is signed by all those present during the identification.
13.10. On-site verification of readings
Verification of testimony on the spot - an investigative action consisting in verification or clarification of the testimony of a previously questioned participant in the process on the spot, related to the event under investigation, in order to establish new circumstances that are significant for the case.
A decision to check the testimony on the spot is not issued. During the performance of this investigative action, the presence of attesting witnesses is mandatory. A defender, translator, specialist can take part in it.
If there are grounds for checking the testimony on the spot, the investigator invites the relevant participant in the process to show the place about which he gave testimony and repeat there what was said during the interrogation. At the same time, he must independently, without prompting, indicate the place where his testimony will be verified, and reproduce the situation and circumstances of the event being investigated, indicate objects, documents, traces that are significant for the criminal case, demonstrate certain actions. Any outside interference in the course of the check and leading questions are unacceptable. After a free story, the person whose testimony is being verified may be asked questions.
If it is necessary to check the testimony on the spot of several persons, this should be done at different times.
Based on the results of checking the testimony on the spot, a Protocol is drawn up, which describes in detail everything that happens.
Verification of testimony on the spot is in many ways similar to an investigative experiment and a survey of the area in the presence of any participant in the process. The difference is that in the first case, the previously given indications are checked and specified; in the second, as a rule, the possibility of committing one or another action under certain conditions is established, and in the third, the person involved in the examination can help to establish the scene of the incident and the traces of the crime.
13.11. Appointment and production of expertise
Expertise is an investigative action consisting in conducting a study of various objects with the use of special knowledge in science, technology, art or craft to establish the circumstances that are significant in the case. Article 196 of the Code of Criminal Procedure of the Russian Federation establishes cases of compulsory expert examination.
The appointment and production of an examination is mandatory if it is necessary to establish:
1) causes of death;
2) the nature and degree of harm caused to health;
3) the mental or physical condition of the suspect, the accused, when doubts arise about his sanity or ability to independently defend his rights and legitimate interests;
4) the mental or physical state of the victim, when there is doubt about his ability to correctly perceive the circumstances that are important for the criminal case and give evidence;
5) the age of the suspect, the accused, the victim, when it is important for the case, and documents on the age are absent or are in doubt.
Having found it necessary to carry out an expert examination, the investigator draws up a reasoned resolution on this, which specifies: the grounds for the appointment of a forensic examination; surname, name and patronymic of the expert or the name of the expert institution in which the forensic examination will be carried out; questions posed to the expert and materials provided at his disposal.
Questions that are put to the expert's permission should be within his competence. It is not allowed to pose questions of a legal nature to an expert.
When the resolution of the questions posed is of considerable difficulty, a commission examination may be appointed, i.e. conducting an expert study by several specialists in one area of knowledge or a comprehensive examination - conducting a study by experts of various specialties to clarify issues that cannot be resolved by experts of one specialty.
When deciding on the appointment of an examination, the investigator has the right, on the basis of a resolution, to obtain from the suspect or the accused samples of handwriting or other samples (blood, saliva, semen, hair, etc.) necessary for a comparative study.
The same samples can be obtained from a witness or a victim, but only if it is necessary to check whether these persons have left traces at the scene of the incident or on material evidence. If necessary, the removal of samples is carried out with the participation of a specialist.
A protocol is drawn up on the receipt of samples for a comparative study.
Samples for a comparative study can be obtained in the course of other investigative actions - search, seizure, etc. In this case, their seizure is reflected in the protocol of the corresponding investigative action. In addition, if the receipt of samples for a comparative study is part of a forensic examination, then it is carried out by an expert, which should be reflected in the conclusion.
The procedural procedure for the production of an examination depends on where it is carried out - in the expert institution or outside the expert institution.
In the first case, having made a decision to carry out an expert examination, the investigator sends to the expert institution his decision and the materials necessary for the expert examination. The head of the expert institution assigns the production of the expert examination to one or several employees of this institution. At the same time, the head of a non-state expert institution explains to the employees who are entrusted with the production of the examination, their rights and responsibilities.
When carrying out an expert examination outside an expert institution, the investigator summons an expert, verifies his identity, specialty and competence, finds out the expert's attitude to the accused, suspect and victim and checks if there are any grounds for challenging the expert. Then the investigator hands over to the expert a resolution on the appointment of an examination, explains to him his rights, duties and responsibilities.
The investigator has the right to be present during the examination.
When appointing and carrying out an examination, the suspect, the accused victim and the witness have broad rights.
First, a forensic examination of a witness can be carried out only with his consent or with the consent of his legal representative. The same consent is required to be obtained from the victim, except for the cases provided for in paragraphs 4 and 5 of Art. 196 of the Criminal Procedure Code of the Russian Federation (when it is necessary to establish his mental, physical condition or age).
Secondly, the accused, the suspect and the victim have the right to familiarize themselves with the decision on the appointment of a forensic examination, to challenge an expert or to petition for a forensic examination in another expert institution.
The accused and the suspect have the right to apply for the involvement of the persons indicated by them as experts or for the production of a forensic examination in a specific expert institution; to apply for the inclusion of additional questions to the expert in the decision on the appointment of a forensic examination; be present with the permission of the investigator during the forensic examination, give explanations to the expert; to get acquainted with the expert's conclusion or a message about the impossibility of giving an opinion, as well as with the protocol of the expert's interrogation.
The witness and the victim, in respect of whom the forensic examination was carried out, is also entitled to familiarize himself with the expert's opinion,
So, he has the right: 1) to declare a challenge to the expert; 2) ask for the appointment of an expert from among the persons indicated by him; 3) submit additional questions to obtain an expert opinion on them; 4) be present with the permission of the investigator during the performance of the expert examination and give explanations to the expert; 5) get acquainted with the expert opinion.
If during the production of a forensic medical or forensic psychiatric examination there is a need for inpatient observation, the investigator shall place the accused or suspect in an appropriate medical institution.
The placement in a psychiatric institution of an accused or a suspect who is not in custody is carried out on the basis of a court decision.
The results of the research carried out by the expert are formalized by the expert's opinion, which is given in writing and signed by the expert.
The conclusion must indicate: the date, time, place and grounds of the forensic examination; the official who ordered the forensic examination; information about the expert institution, as well as the surname, name and patronymic of the expert, his education, specialty, work experience, academic degree, academic title, position held; information about the expert's warning about responsibility for giving a deliberately false opinion; questions posed to the expert; objects of research and materials presented for the production of forensic examination; data on the persons who were present during the forensic examination; the content and results of research with an indication of the applied methods; conclusions on the questions posed to the expert and their justification.
If, during the examination, the expert establishes the circumstances that are significant for the case, in which he was not asked questions, he has the right to indicate them in his conclusion.
After the expert has given the conclusion, the investigator has the right to interrogate him to explain the conclusion given by him. However, the expert cannot be questioned about information that does not relate to the subject of this forensic examination, even if they became known to him in connection with the production of the forensic examination.
In case of insufficient clarity or completeness of the expert's conclusion, as well as if new questions arise regarding previously investigated circumstances, an additional forensic examination may be appointed, the production of which is entrusted to the same or another expert.
If there are doubts about the validity of the expert's conclusion or there are contradictions in the expert's conclusions, a repeated examination may be appointed on the same issues, the production of which is entrusted to another expert.
Some investigative actions before the initiation of a criminal case are carried out in accordance with all the rules of the Criminal Procedure Code. In this case, it is worth paying attention to some of the features and differentiation in legal proceedings. In practical application, there are several inaccuracies that law enforcement officers are trying to cope with.
Necessity of investigative actions
The actions performed during the investigation, including before the initiation of a criminal case, to some extent affect human rights. Consequently, there should be grounds for their implementation. The main thing is to comply with the legislation and existing regulations. There are investigative actions that are carried out without fail before a criminal case is initiated, and some of them are at the discretion of the official.
Priority should be given to those measures that will be necessary to make a legal decision to initiate proceedings on the materials received. All traces and other evidence must be recorded and preserved for the subsequent writing of the indictment.
In addition, the initial actions are aimed at a quick process of further investigation, which is reflected in:
- For some investigative actions, the order of production is reduced.
- The initial actions carried out are subsequently used as an evidence base. In addition, their list is expanding over time.
- Avoiding duplication of results in the investigation process.
Carrying out inspections
The most basic action that is carried out before the initiation of a case is an examination. The most important thing here is to identify and fix the traces of a crime, which over time are lost and lose their properties. If the case relates directly to the scene of the incident, then the process also includes the consolidation and analysis of the detected objects in terms of the presence or absence of evidence. They must contain all the signs, properties, location relative to each other.
Often, the ability to prove guilt in the investigation of the case will depend on OMP (inspection of the scene of the incident). It is important to have a forensic expert with sufficient knowledge in the examination. Even a Russian lawyer back in the 19th century said that an examination was the basis of an investigation. This event should be carried out with great care, finding all items related to the event.
There are the following tasks that can be solved by inspection of the scene:
- Raising the issue of admitting discovered items as material evidence in the case.
- Detection and seizure of criminal traces.
- Verification of all possible sources of evidence in the case.
- The examination reveals the sequence of the criminal's actions, the course of events. The entire environment is carefully researched.
- The information obtained is subsequently used in advancing versions of the investigation.
The inspection must comply with certain legal requirements. First of all, it is the presence of the witnesses. Otherwise, in specially stipulated cases, an accurate recording of the investigative actions carried out before the initiation of a criminal case will be made (photo and video). If it is not possible to use technical means, a note is made in the protocol by the investigator.
Items found during weapons of mass destruction are presented to attesting witnesses, packed in accordance with all the rules and sealed. When a dwelling is inspected, the owner or adult must be present. There is an alternative option - a court decision. If the owner is unwilling to take an investigative action, a petition is made before the court in order to comply with the requirements of Art. 165 of the Criminal Procedure Code.
With regard to administrative buildings, then there must be a representative of the organization. Otherwise, an entry is made in the documents.
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Examination of the corpse
There are some peculiarities when examining a corpse. This is most often done at the scene of detection after a person's criminal acts have been committed. Sometimes a direct examination is carried out already in the morgue, where the corpse was delivered by medical workers.
In the first case, an inspection of the scene of the incident is drawn up, where the surrounding situation is additionally described, objects that can become material evidence are seized, and more. All rules and requirements for inspection are followed in full. The production of investigative actions is strictly regulated by law.
The corpse can be sent to the morgue on an emergency basis before the investigator arrives with the group. Delivery to the morgue can be carried out from various departments of hospitals. Most often it is surgical, when a person dies after receiving bodily injuries. An exceptional case is the exhumation and sending of the corpse to the morgue. This will already be an independent investigative action, where a separate protocol for examining the corpse is drawn up. A description of the situation is not required here, since it makes no sense to indicate the color and condition of the walls in the morgue. The main thing here will be to describe the corpse and the presence of damage on it.
During the examination of the corpse, attesting witnesses, as well as a forensic expert, are also present. If it is not possible to involve an expert, a doctor should be present. It will contribute to a detailed description of the body of a corpse, indicate the structure of the body, etc. These requirements are spelled out in Art. 179 of the Criminal Procedure Code. If possible, the protocol indicates the presence of foreign odors in the exhaled vapors, including alcohol, when pressing on the chest. Any subtlety in the future can play a decisive role in the investigation of the case.
This investigative action can also be performed by a doctor. For him, the tasks and objectives of the inspection must be explained. In addition, the examination of the corpse is quite often carried out before the VUD, since it is impossible to make a final decision before receiving a medical report, where the possible causes of death will be described.
Survey procedure
In the absence of the need to carry out a forensic examination before the VUD and the need to find special signs on the person himself, traces of a crime, determination of the state of alcoholic intoxication, an examination is carried out. At the same time, there must be sufficient data about this, including information from operational and search officers of the internal affairs department.
To carry out this event, a resolution is issued by the investigator, presented to the person being examined, in accordance with all the rules. As an additional participation in the process, a doctor or other specialist in the required field of knowledge can act. There may be cases when the investigator and the person being examined are of different sex. In this case, the doctor should do everything, and the official does not take part. True, in this case, the human body should be exposed.
In this definition, one should think about the basic concepts of what should generally be identified when carrying out an investigative action:
- Special signs. Any marks of artificial or natural origin. They differ from each other in individual characteristics that are characteristic of him. These include scars after trauma, surgery, tattoos on the arms and body, etc.
- Injuries. A change that has occurred on the body as a result of criminal acts or that appeared after them. It is worth noting that it is not always possible to detect those changes in human tissues without inherent visible signs. In this case, a forensic examination of the initiated case should be appointed.
- ... Most often, everything is carried out under the medical supervision of a doctor. Additionally, the necessary medical devices are used, information about which is entered into the examination protocol. In addition to alcoholic, it is customary to distinguish drug intoxication, as well as the consumption of intoxicating drugs. All this, to some extent, has an effect on the human condition, which is revealed in the process of examination.
- Other properties and signs. They must be interconnected with each other. The features of a person's gait, speech, ability to move are revealed. In addition, the relationship of the received bodily injury with the object with which it was inflicted is found. This will allow you to reach the truth in the case.
All these points are necessarily reflected in the protocols. Sketches, descriptions, measurements, etc. are used as additional fixation. Photographing or video recording can be made. For this, consent is obtained from the person being examined, about which a note is made in the protocol.
As for the participation of attesting witnesses, their mandatory participation is not required. Only the investigator can make a different decision based on the procedural rules of the law. Participants of the process can also make a request about this. True, it is not a fact that the decision will be made in their favor.
Obtaining samples
To check whether a person has left traces at the scene of an accident, samples are obtained for subsequent comparative studies. A protocol is also drawn up for this event. According to Art. 202 of the CPC, the action can be performed before the VUD.
All methods and methods used in the process of obtaining samples should not contradict moral norms and not contain a danger to life and health. All legal rights must be respected.
The basis for obtaining samples is a decision made, with which the participant becomes familiar. In some situations, this event is carried out by a specialist. An expert is necessarily involved in obtaining samples, if this relates to a forensic examination. Most often, this is obtaining samples of fingerprints obtained by fingerprinting. It is this, to a greater extent, that subsequently becomes the basis for initiating a case if the coincidence of the traces left at the scene is established.
Forensic examination
Another variant of the investigative action, which is carried out before the initiation of the case, is a forensic examination. For this, a resolution must be passed, with which it acquaints the participants. During the examination, an expert with special knowledge in a particular field must be involved. To do this, he must obtain permission to conduct research.
When it is carried out, a research protocol or an expert's certificate is drawn up before the PMD, which indicates the conclusions of the specialist. In some situations, in the future, this requires an additional event with the receipt of an opinion. Everything will depend on the categorical nature of the conclusions and related factors.
Existing disadvantages
According to Article 144 of the Code of Criminal Procedure, before the initiation of a case, items and documents may be claimed. At the same time, the procedure for seizure is not procedurally fixed. After all, a search or seizure is carried out in a similar way, according to the results of which a protocol is drawn up. But at the initial stages, such investigative actions cannot be performed. Consequently, there is a contradiction and at the same time a double interpretation of the presented norm.
Sometimes the findings and indictment will be based on the search or seizure protocol that took place prior to the ATM. The correctness of this evidentiary value will be difficult to assess. Doubts arise even among the country's top officials, who cannot independently assess the ongoing events.
Some courts give a different assessment of the evidence obtained before the initiation. This applies to cases of seizure of documents in an organization that has nothing to do with the suspect. Even complaints received about the work of the investigating authorities in this case will be rejected, for which there are examples in practical life.
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It is required to establish facts that indicate a criminal offense, that is, to carry out certain investigative actions before initiating a criminal case. For each corpus delicti specified in the Criminal Code of the Russian Federation, a set of certain measures is provided that allow qualifying the actions of a criminal as a crime. The investigator is obliged to choose the method of investigation based on the essential conditions of the case.
Despite the significant volume of rules on the manipulations of the subjects of law enforcement agencies, which are carried out before the initiation of the case, they are not given concepts.
However, you can find an exhaustive list of such activities.
Installed 2 bases:
- the decision of the investigator;
- the court's decision.
The main conditions for carrying out manipulations by an authorized employee are indicated in article 164 of the Criminal Procedure Code of the Russian Federation.
An injunction is required in many cases, and they are all listed in article 29:- the possibility of conducting an inspection of the dwelling if it is hindered by the owners or tenants;
- seizure of things that have been handed over or pledged to a pawnshop;
- examination of the place of residence or place of stay of a potential offender;
- seizure of documentation or other things in financial institutions (deposits, accounts, material values in safe deposit boxes), as well as any information that contains state, commercial or professional secrets;
- examination of the suspect's correspondence directly at the post offices;
- the establishment of the arrest of property;
- establishing the facts of negotiations carried out through information and telecommunication networks;
- sending inquiries to the operator about the existence of telecommunications.
The above actions are permitted by a court decision due to their direct relation to constitutional guarantees based on personal criteria.
Any operational or investigative action should not be carried out at dusk. But there is a reservation in the law that an employee of the authorities can use the wording, "a certain procedural action must be carried out without delay." This wording is reflected in the protocol drawn up at the place of the action.
The requirement for the strict observance of the principle of humanity, that is, the inadmissibility of the use of violent methods, intimidation of participants in the process, is indicated. 
All actors of such measures should be explained the possible consequences for obstructing the conduct of the inquiry procedure. Before any of the procedures, an employee of the authorities conducts a comparison of the person and the participant in the case.
Thus, defining the investigative action carried out at the initial stage of the investigation, essential conditions should be noted:
1) a set of procedural measures;
2) without observing constitutional guarantees are recognized as illegitimate;
3) such circumstances are established, taking into account criminal qualifications.
In the participation of any event organized by the investigator, a criminologist is involved, who has the right to use a certain set of methods to identify such traces that may be significant in determining the corpus delicti. This manipulation is necessarily recorded, and the persons present are inquired about all actions.
The production of investigative actions prior to the initiation of a criminal case is associated with the involvement of certain subjects. Everyone present at an event conducted by an investigator has a specific status.
The following groups of participants can be distinguished:
- Directly related to the alleged crime - victim, suspect.
- The persons defending the first group of participants are lawyers and other subjects.
- Persons acting in the interests of the investigation and on a professional basis - expert, specialist, translator.
- Persons supervising the application of legal methods and methods of conducting an event are attesting witnesses.
The first group of persons has a special role in the conduct of an investigative action, as it contributes to the establishment of the truth through the provision of verbal (verbal), as well as visual information, which is an important element of the evidence base.
The second group of persons has legal grounds to be in the implementation of any investigative measure, if it is directed at those who are under guardianship by law (parents) or by contract (defenders). Thus, a parent, guardian or curator is always there when investigative measures involve minors.
Almost every action is not complete without the use of special skills, which is why a person with special skills (an expert) is invited. An interrogation is also carried out in relation to such a person, since often an expert opinion will need to be clarified.
A specialist is an important person, because thanks to his knowledge, he allows you to discover, consolidate the information received (documents with fingerprints) or describe what was found (a murder weapon with traces of blood). Such a participant must be involved in conducting interrogations, giving advice on certain materials. 
Based on the general rules for carrying out procedural manipulations, the proceedings on them are carried out in the national language. In the case when one of the main participants of the event does not speak Russian to an acceptable degree. This circumstance becomes known already at the time of the designation of the range of rights and obligations. If the knowledge of the language is not enough, then the employee suspends the recording in the protocol until the presence of an interpreter is ensured.
The next group of participants is called upon to monitor the legality of the actions performed (for example, to ensure that no weapon or other material evidence was planted). Witnesses are an integral part of conducting surveys or searches.
The investigator is obliged to ensure the maintenance of auditory or visual fixation.
Otherwise, any manipulation by the investigator is subject to challenge at the next stage of the process.
Separately, it should be noted special subjects or participants in investigative measures:- representatives of the managerial link of the company - the owner of the visit in which the search or seizure is carried out;
- extras are involved when an activity such as identification is carried out;
- lawyers for other persons involved in the commission of investigative measures, for example, witnesses.
All participants must have a certain status, otherwise any event will be recognized as illegitimate.
Inspection at the initial stage of the investigation or in the process of inquiry is a very neutral action of the investigator, since it meets the rules for observing the surrounding objects. Such supervision is possible for open objects with unrestricted access.
Inspection and search are methods related to the methods of implementation prior to investigative manipulations, with the only difference being the omission of the factor of ownership of the object of visual search. One species is characterized by the visual detection of physically determined facts located in residential and non-residential objects that have a specific owner.
The purpose of the inspection:- identification of traces that remained after the commission of a wrongful act;
- fixation;
- identification of other important circumstances.
Inspection should be carried out in a generalized form in relation to a certain area (dwelling or open space), but also certain objects (killed persons, for example).
A few words should be said about the inspection rules, which are strictly observed:- In the case when it was carried out without involving the owner of the premises, then it may in the future be recognized as illegal.
- All traces found must be demonstrated in real time to an attending witness.
- Inspection is subject to logging.
This measure is inherent in the next stage of the criminal case, but due to urgent circumstances, it can be ordered before this stage of the proceedings in the case. 
The examination is carried out in respect of all persons from the first group of participants in the production. So, the initial examination of the offender can help to establish his condition at the time of the commission of a criminal offense, and manipulation with the victim - the degree of injury inflicted or his emotional state.
Such an action cannot be compared with a similar procedure carried out by medical professionals, since it is carried out by different subjects. The facts established by doctors regarding the personality of the participant in the case are attached to the materials of the initiated case as an expert opinion.
This procedure is carried out at an intermediate stage, that is, when the prosecutor did not show his authoritative decision to initiate a full-fledged investigation procedure.
An investigative experiment is a kind of juxtaposition of certain moments that stimulates memories of what happened. This often helps to identify incorrect information. Investigative actions carried out before the initiation of a criminal case are incomparable with this type, since before its appointment, the main person involved was determined. Therefore, one cannot speak of the urgency of actions.
Thus, the listed manipulations are not carried out without the authoritative permission of the judicial authorities.
A search is an authoritative authorized action; to use it, a special judicial act is required. Upon completion or in the process of its implementation, it is possible to find not only material evidence, but also killed or held (hidden) people. Before carrying out these manipulations, the person conducting it must offer to voluntarily indicate the held or hidden objects. 
A feature of the search is the special behavior of the owners of the premises. According to legal regulations, homeowners are not allowed to go out, call or talk to anyone.
Since April 2017, changes in procedural legislation have affected human rights defenders. Thus, it became possible to search immovable objects belonging to lawyers (persons with a certain degree of immunity).
The seizure is a logical continuation of the previous imperious action (search), as it predetermines the seizure of discovered and sought objects.
Some confiscated items may be circumstantial evidence of a crime, but the seizure allows the identification of essential objects (the instrument of the crime).
Relationship between search and seizure:- it is impossible to carry out a seizure without a search;
- the preparation of several acts is due to the total number of property owners.
The seizure of transmitted information by means of general methods of postal and telegraphic dispatches is carried out only with judicial permission and is not initiated by the investigator on his own. After the injunction is in the hands of an employee of the authorities, the seizure carried out will be recognized as legitimate with the participation of the head of the post office or an employee replacing his duties.
The seizure of the suspect's existing correspondence is the main purpose of such a manipulation.
The control and recording of negotiations is the evidence base and reflects the intention of the offender, subject to the receipt of the order of the prosecutor. 
The phonogram of the recorded conversations is recorded, and the recording itself is an integral part of the protocol. The absence of one of these elements excludes the legitimacy of the other.
Unlike other investigative actions, this procedural measure can be initiated by a person who fears for his own well-being and health.
That is, it is assumed that a person can independently give an authoritative order to listen and record conversations. The limitation period for requesting information about the negotiations is noted in the range of six months. The same cannot be said about the previous investigative measure.
You can interrogate subjects who have been assigned a procedural status. When establishing certain facts and collecting certain material evidence, the investigator has only one task - to find out the details of the case.
Reconciliation of readings is organized before the main excitation procedures are performed. This is a kind of provoking factor that allows you to determine the truth in facts that do not coincide according to the indications. 
Presentation for identification is a type of manipulation that is associated with the identification of certain procedural subjects of the case. For the presentation of the suspects, extras are invited - special participants who are not involved in other actions in the case.
On-site verification of testimony is not related to preliminary investigation. The task of the interrogator is to reproduce all the essential conditions of the crime, so that the information obtained during interrogation can be correlated with the information provided in real conditions.
All actions from this group are subject to a special classification:- to participate in these actions, the presence of special participants is required;
- the purpose of such manipulations is aimed at verifying the truth.
Based on the foregoing, it turns out that this is the most effective type of manipulation that is performed at any stage of the process.
Forensic examination
The problem of producing such an examination before the materials are completed is hidden in the name of the examination.
However, in a number of cases, it is impossible to raise the main question of the availability of qualifications without carrying out such a procedure. A forensic examination is permitted by the court and its act is investigated subsequently.
It should be noted that the appointment of an examination is a rather complicated and multi-stage process.
It contains:- preparation;
- determination of appropriateness;
- preparation of questions for the expert on behalf of the investigator;
- establishment of an effective type of expertise.
Medical examinations are carried out exclusively until the initiation of a criminal case, if all persons of a criminal offense are identified.
Many investigative manipulations border on the stage of initiating a criminal case, but can be carried out even before it, proceeding from the principles of preserving and detecting traces of a crime. Each individual investigative action committed without initiating a criminal case, but at the same time with a violation of procedural forms, may become a serious obstacle to the initiation of a criminal case.