Acts of prosecutorial response used in the supervision of the investigation

Morozov Kirill Olegovich Student; Faculty of Law; St. Petersburg Branch; National Research University Higher School of Economics 16, Union of Printers Street, Saint Petersburg, 190121, Russia ketsyo@yandex.ru

The Prosecutor's Office of the Russian Federation, as follows from Articles 1, 29 of Federal Law No. 2202-1 dated 17.01.1992 "On the Prosecutor's Office of the Russian Federation", Article 37 of the Code of Criminal Procedure of the Russian Federation, is obliged to supervise the legality of the preliminary investigation in the form of an inquiry in order to protect the rights, freedoms and legitimate interests of a person and citizen.

The update of the guidelines on the organization of prosecutorial supervision over the legality of the preliminary investigation in the form of an inquiry by the Prosecutor General of the Russian Federation on January 19, 2022 of Order No. 11 "On the organization of Prosecutorial supervision of the procedural activities of the bodies of inquiry", which replaced the previously issued order on these issues, indicates that the named area of supervisory activity is currently It is one of the priorities in the activities of the Prosecutor's Office of the Russian Federation.

According to the Main Organizational and Analytical Department of the Prosecutor General's Office of the Russian Federation, 1,708,066 violations were detected during the investigation and inquiry in 2021, and 1,799,639 violations in 2022, that is, an increase of 5.4% (Statistical data on the main indicators of the activities of the Prosecutor's Office of the Russian Federation for January-December 2022).

The works of many legal scholars are devoted to the issues of prosecutorial supervision in criminal proceedings. PhD dissertations by T. G. Nikolaeva, I. S. Kuryshov, E. R. Islamova, E. N. Bushkovskaya, A. G. Teteryuk, M. V. Serebryannikova, O. A. Gracheva and others were defended at various times on the problems of supervision over the legality of the inquiry and border issues with it.

In 2000, S. E. Yakusheva defended her PhD thesis on the legal acts of the Prosecutor's office of the Russian Federation, in 2011 – P. A. Prigorshch's PhD thesis on the topic "The prosecutor's requirement as a means of ensuring the enforcement of the law: theoretical and practical aspects", in 2013 – A. A. Terekhin's PhD thesis on the topic "Acts of prosecutorial response in in 2019 – the PhD thesis of E. V. Kolomeets on the use of means of reaction by the prosecutor in pre–trial proceedings, in 2021 - the PhD thesis of A. V. Sindeev on the topic "Procedural decisions of the prosecutor in the pre-trial stages of criminal proceedings and their legal consequences".

The monograph by E. R. Ergashev and P. A. Prigorsch, published in 2010, "The prosecutor's demand as a tool to ensure the enforcement of the law," is devoted to the demand as an act of prosecutorial response. According to other acts of prosecutorial response used in criminal proceedings, the author could not find individual monographic works.

The methodology of the study was based on a set of methods: dialectical, logical, systemic, functional and formal legal, which allowed for a comprehensive analysis of the legislative regulation of acts of prosecutorial response used by the prosecutor in overseeing the legality of the inquiry, the opinions of legal scholars and practitioners on this issue, to formulate proposals to solve the identified problems.

Inquiry is one of the forms of preliminary investigation of crimes provided for by the criminal Procedure law (Part 1 of Article 150 of the Code of Criminal Procedure of the Russian Federation), while it is considered that this form of preliminary investigation is simplified in relation to the preliminary investigation ^{[1, p. 154]}, introduced by the legislator to conduct an investigation in the shortest possible time for obvious crimes with known the suspect ^{[2, p. 109]}.

Within the meaning of paragraphs 7 of Article 5 and Part 1 of Article 41 of the CPC of the Russian Federation, an inquirer is an official of the body of inquiry, authorized or authorized by the head of the body of inquiry to carry out a preliminary investigation in the form of an inquiry and other powers provided for by the CPC of the Russian Federation. Thus, an inquirer can act as a full—time inquirer serving in an inquiry unit — an authorized official - as well as any other official of the body of inquiry, separately authorized by the head of the body of inquiry, for example, a district police commissioner or an operative who is entrusted with such duties if there are insufficient number of full-time interrogators.

Departmental regulations defining the qualification requirements for candidates for the position of an inquirer allow the appointment of persons who do not have higher legal education to the position of a full–time inquirer: for example, in the internal affairs bodies - as an exception (paragraph 80 of the Procedure for organizing service in the internal Affairs bodies of the Russian Federation, approved by Order of the Minister of Internal Affairs of the Russian Federation dated 02/01/2018 No. 50), and in customs authorities – with the presentation of an additional requirement for work experience in the specialty (item 7 of the List of positions of senior officers, middle officers of customs and customs posts, their corresponding maximum special ranks and qualification requirements, approved by Order of the Head of the Federal Customs Service of the Russian Federation dated 09/22/2014 No. 1841). At the same time, within the meaning of Part 1 of Article 1 of the Code of Criminal Procedure of the Russian Federation, the possibility of the head of the body of inquiry to empower the investigator and other officials of the body of inquiry, to whom reduced qualification requirements regarding the level of education are presented, is not excluded.

Thus, situations are allowed when the investigation of crimes in the form of an inquiry is carried out by interrogators who do not have a sufficient level of professional training. This conclusion is also confirmed, for example, by the study of professional mistakes made by interrogators of internal affairs bodies ^{[3, p. 32]}.

As follows from the analysis of Articles 37-38, 40-41 of the Criminal Procedure Code of the Russian Federation, the inquirer, unlike the investigator, is directly and directly procedurally dependent on the prosecutor, the head of the body of inquiry and the head of the department of inquiry. The limited procedural independence of interrogators as subjects of criminal proceedings is not without logic: the features of inquiry as a form of preliminary investigation — the simplified nature associated with the investigation of, as a rule, obvious crimes, as well as the short procedural deadlines — combined with, often, the low level of professional training of interrogators, are the determining factors of errors, including significant violations of the criminal procedure law.

The persons closest to the interrogators, endowed by law with the ability to control and organize the procedural activities of the interrogators, are the head of the inquiry unit and the head of the inquiry body (Articles 40.1 — 40.2 of the Code of Criminal Procedure of the Russian Federation), often, however, not seeking to interfere in the work of subordinates and formally respond to the mistakes they make. In such circumstances, high-quality prosecutorial supervision and the active position of the supervising prosecutor are guarantees of the protection of the rights and legitimate interests of participants in criminal proceedings.

The interaction of the supervising prosecutor with supervised entities is carried out by issuing acts of prosecutorial response. At the same time, as follows from Article 30 of Federal Law No. 2202-1 dated 17.01.1992 "On the Prosecutor's Office of the Russian Federation", when overseeing the procedural activities of the bodies of inquiry, the prosecutor should focus on the powers provided for in Article 37 of the Code of Criminal Procedure of the Russian Federation.

E. R. Ergashev points out that the acts of prosecutorial response applied by the supervising prosecutor at the pre–trial stages of criminal proceedings can be divided into means of responding to lawful actions and means of responding to unlawful actions of supervised subjects: in the first case, the supervising prosecutor approves or authorizes a lawful action or decision; in the second, reacts in one form or another (requirement, instruction, resolution) in order to restore legality^{[4, pp. 118-119]}.

The prosecutor's demand for the elimination of violations of federal legislation is an act of prosecutorial response, inherent exclusively in criminal proceedings (paragraph 2, part 2, Article 37 of the Code of Criminal Procedure of the Russian Federation). Based on the content of the above norm, the supervising prosecutor, sending a request to the supervised entity, in fact, draws his attention to the violations of federal legislation and indicates the need to correct them independently - eliminate them.

At the same time, A.V. Grinenko believes that the words "conducting an inquiry" should be deleted from paragraph 2 of Part 2 of Article 37 of the CPC of the Russian Federation, since, within the meaning of paragraphs 4, 6, part 2 of Article 37 of the CPC of the Russian Federation, the supervising prosecutor has the right to give written instructions mandatory for the inquirer and independently cancel illegal, in his opinion, procedural decisions taken by the body of inquiry, the inquirer, the head of the body of inquiry and the head of the department of inquiry^{[5, pp. 23-24]}.

The opposite point of view is expressed by E. V. Kolomeets, who believes that such a formulation of the law expands the possibilities of supervision, adds flexibility to it^{[6, p. 69]}. We cannot disagree with this, and we fully share this position: the gradation of acts of prosecutorial response from more stringent, imperative — written instructions, resolutions on the cancellation of illegal decisions — to a milder, educational requirement to eliminate violations — allows the supervising prosecutor to approach interaction with supervised subjects more flexibly, in particular depending on the nature of the violations they committed.

However, it should be noted that the right of the supervising prosecutor to require the investigator to eliminate violations of federal legislation is not balanced by the latter's right to appeal such requirements, either independently or with the consent of his supervisors — the head of the inquiry unit or the head of the inquiry body, whereas such a right is granted to the investigator (Part 3 of Article 38 of the Code of Criminal Procedure of the Russian Federation). In this part, we believe that the legislator has made a gap that should be eliminated by giving the inquirer the opportunity to object to the prosecutor's demands through the head of the body of inquiry, who could inform the higher prosecutor about the objections received, in order for the latter to assess the legality of the demands sent to the inquirer.

The right of the supervising prosecutor to give the investigator written, binding instructions on the direction of the investigation and the conduct of procedural actions is fixed by the legislator in paragraph 6, part 2, Article 37 of the Code of Criminal Procedure and is one of the main ways for the prosecutor to coordinate the investigation of crimes.

Procedural actions, unless otherwise defined by law, should be understood as "investigative, judicial and other actions provided for by the criminal procedure law" (paragraph 32 of Article 5 of the Code of Criminal Procedure of the Russian Federation). Excluding judicial actions from this list, it can be reasonably concluded that the supervising prosecutor at the pre-trial stages of criminal proceedings has the right to give the inquirer written instructions on the conduct of any investigative and procedural actions, while such instructions are mandatory for the inquirer (Part 4 of Article 41 of the Code of Criminal Procedure of the Russian Federation). If investigative actions are traditionally understood as methods of collecting and verifying evidence, regulated in detail by the criminal procedure law, with the possibility of using coercive measures (Smirnov A.V., Kalinovsky K. B. Criminal procedure: textbook / under the general editorship of prof. A.V. Smirnov. M.: Norm: INFRA-M, 2025, p. 448), then "other procedural actions" should be understood, for example, sending requests for information characterizing the identity of a suspect or accused, and receiving documents submitted on them.

Despite the fact that the written instructions given to the inquirer by the supervising prosecutor are mandatory for him, he is not deprived of the right to appeal them in accordance with Part 4 of Article 41 of the Code of Criminal Procedure to a higher prosecutor. At the same time, the established practice of law enforcement shows that the investigator practically does not use the right granted to him to appeal the prosecutor's instructions: for example, M. N. Antropovskaya, analyzing the cumulative cases of the Prosecutor's Office of the Republic of Karelia for 2018-2021, states the complete absence of cases of investigators appealing the prosecutor's instructions to a higher prosecutor^{[7, p. 110]}.

We believe this is due, firstly, to the low procedural and factual independence of the interrogators, who, although having the right to independently conduct investigative and procedural actions, make procedural decisions (paragraph 1, part 3 of Article 41 of the Code of Criminal Procedure of the Russian Federation), actually follow the instructions of their supervisor, and secondly, the general low level of professional training — both factors together explain the unwillingness or actual impossibility (depending on the opinion of the head or lack of knowledge) of the investigator to appeal the instructions given to him, even if they seem illegal or unfounded to him, to a higher prosecutor.

At the same time, there is also a position in the scientific community about the need to completely withdraw the authority from the prosecutor to give written instructions: D. A. Yemelyanova and K. A. Sinkin insist on this, motivating their proposal by the fact that the said authority "has more signs of procedural control than prosecutorial supervision, and should come only from the head of the investigation unit or from the head of the body of inquiry"^{[8, p. 6]}.

Opposing, it should be pointed out that as soon as the prosecutor cancels the illegal decisions of the investigator (for example, in accordance with Articles 211, 214 of the Code of Criminal Procedure of the Russian Federation), he is not only entitled, but also obliged to give instructions on additional investigation of specific circumstances, and when satisfying a complaint about violation of reasonable terms of criminal proceedings during pre-trial proceedings in a criminal case — instructions on the commission of specific procedural actions and the timing of their implementation (part 2 of Article 123, Part 2.1 of Article 124 of the Code of Criminal Procedure of the Russian Federation), then he should be able to give instructions and out of connection with a stricter act of prosecutorial response — a resolution, as stated by the famous Roman maxim "quo licet id quod majus, videtur licere id quod minus" ("when more is allowed, less is considered allowed").

A reasoned decision of the prosecutor, along with the requirement and indication of the prosecutor, is one of the ways to respond to violations committed by supervised subjects. At the stages of pre-trial proceedings, the prosecutor makes decisions on a number of different issues: for example, canceling the decision to initiate a criminal case (part 4 of Article 146 of the CPC of the Russian Federation) or refusing to initiate a criminal case (part 6 of Article 148 of the CPC of the Russian Federation), canceling other illegal decisions of the body of inquiry, the head of the body of inquiry, the head of the department of inquiry or the inquirer (paragraph 6 of Part 2 of Article 37 of the Code of Criminal Procedure of the Russian Federation). The prosecutor can react to the revealed violations of the law by issuing a ruling even after studying the criminal case received by him with an indictment or a resolution (Articles 226, 226.8 of the Code of Criminal Procedure of the Russian Federation).

The decisions of the prosecutor, adopted by him as a result of consideration of the decision to initiate a criminal case or the decision to refuse to initiate a criminal case with the materials that served as the basis for the decision, are not subject to appeal by supervised entities. The legislator also did not provide for the possibility for the body of inquiry, the head of the body of inquiry, the head of the department of inquiry or the inquirer to appeal the decisions of the prosecutor issued by him in accordance with paragraph 6 of part 2 of Article 37 of the Code of Criminal Procedure, that is, in relation to decisions of supervised entities other than the initiation of criminal proceedings and refusal to initiate criminal proceedings.

The Criminal Procedure Law gives the inquirer, with the consent of the head of the body of inquiry, the right to appeal only the prosecutor's decision to return the criminal case for additional investigation or to resubmit the indictment, as well as the decision to return the criminal case for resubmission of the indictment or to send the criminal case for investigation in the general procedure (part 4 of Article 226, Part 4 Article 226.8 of the Code of Criminal Procedure of the Russian Federation).

At the same time, I. I. Fedulova, who studied the practice of an investigator appealing against prosecutor's decisions on the return of a criminal case for additional investigation, notes that in the city of Moscow and the Moscow region, there are no cases of investigators appealing against such decisions at all^{[9, p. 154]}.

The prosecutor's authority to make decisions, unlike other acts of prosecutorial response (for example, requirements and instructions carry, in addition to the supervisory function, also organizational and administrative purposes), is of a pronounced supervisory nature: by canceling decisions made based on the results of consideration of a crime report, the prosecutor protects the rights and legitimate interests of the victim or a person against whom a decision has been made to initiate criminal proceedings, thus guaranteeing the achievement of the goals of criminal proceedings (Article 6 of the CPC of the Russian Federation); the prosecutor is a person primarily conducting criminal prosecution on behalf of the state and supporting state prosecution in court (Part 1 of Articles 21, 246 of the CPC of the Russian Federation), by virtue of which, as A. V. Sindeev points out, it is he who independently determines the sufficiency of evidence to support the prosecution in court, evaluates the materials of the criminal case for compliance with criminal procedure and substantive law, concluding that there are no obstacles to its consideration by the court^{[10, p. 251]}.

I. S. Dikarev reasonably believes that by approving the final act of the preliminary investigation, the prosecutor "gives a legal assessment of all previous procedural activities, recognizing it as legitimate and justified"^{[11, p. 21]}. Otherwise, the prosecutor reacts by adopting a resolution in which he points out violations of the criminal procedure or substantive law. Thus, in both the first and second situations, the supervisory nature of the prosecutor's reactions is certainly manifested.

Summing up, it can be summarized that modern criminal procedure legislation provides for a fairly wide list of acts of prosecutorial response: from mild - requirements for the elimination of violations of federal legislation, to more stringent and imperative — written instructions from the prosecutor and the prosecutor's decree, which the supervising prosecutor can apply, interacting with supervised entities. The variety of acts of prosecutorial response adds flexibility to prosecutorial supervision and the ability to respond proportionately to violations of the law. Most of the acts of the prosecutor's response are balanced by the right of the supervised subject to appeal against them: written instructions from the prosecutor can be appealed by the investigator to a higher prosecutor on his initiative, and the prosecutor's decision – in cases defined by law. However, the right to appeal has not been implemented with respect to the prosecutor's requirement submitted to the inquirer, which the author considers an omission of the legislator and proposes to give the inquirer such a right.

Thus, in conditions of a large number of determinative factors — the simplified nature of the preliminary investigation, short procedural deadlines, low professional training of interrogators — the active role of the supervising prosecutor remains one of the main guarantees for the protection of the rights and legitimate interests of participants in criminal proceedings.