Functioning of inquiry and investigation units in the system of the Ministry of Internal Affairs of Russia

Fadeev Il'ya Aleksandrovich PhD in Law Senior Lecturer, Department of Theory and Methodology of Public Administration, Academy of Management of the Ministry of Internal Affairs of Russia, Police Major 125171, Russia, g. Moscow, ul. Zoi I Aleksandra, 8 ilya-fadeev@yandex.ru

        During the foreseeable period of development of the preliminary investigation bodies of the Ministry of Internal Affairs of the Russian Federation, objectively determined changes and additions to the criminal procedure legislation associated with their operational and official activities are traced. Both earlier and now, they are expressed, among other things, in the conceptual convergence of the established forms of pre-trial proceedings - inquiry and preliminary investigation, which are considered equal spheres of application of the efforts of representatives, mainly of the judiciary ^[1].

        Such a vision in the early 20s of the twentieth century was conditioned by the relatively recent, at that time, withdrawal of the investigative apparatus from the judicial system and its reassignment to the prosecutor's office ^{[2, pp. 424-441]}.

        In the modern Russian Federation, the organizational support of the function of investigation (criminal prosecution) is carried out on the basis of the methodology developed by the theories of public administration and criminal procedure through the creation of three functional subsystems that take into account the peculiarities of the legal forms of preliminary investigation:

        1) subsystems of preliminary investigation bodies;

        2) subsystems of the bodies authorized to carry out an inquiry in criminal cases of the relevant jurisdiction;

        3) subsystems of bodies and officials authorized to carry out urgent investigative actions in criminal cases of crimes for which a preliminary investigation is mandatory (Part 3 of Article 40, Part 1 and 2 of Article 157 of the Criminal Procedure Code of the Russian Federation) ^{[3, p. 8]}.

       As usual, these forms are still considered as similar and, to a certain extent, duplicating each other types of procedural activity. Repeated attempts by the legislator, sporadically undertaken by him over the past decades, were sometimes directed at the complete abolition of the inquiry, leaving at the disposal of the appropriate bodies (inquiry) the authority to produce exceptionally urgent investigative actions.

        Adequate considerations are being expressed even now, including to the address of the preliminary investigation, which, like the experience of Germany (1974), it is proposed to eliminate.

        Nevertheless, they were not crowned with success, because at the same time there is a noticeable increase in the list of crimes that are proposed to be investigated both in the form of an inquiry ^{[4, p. 31]} and in the form of a preliminary investigation, without aggravating competition on their part.

        To the point, we note that in the conditions of today, some scientists are harboring the idea of the expediency of leaving the bodies of inquiry with the authority to conduct only independent investigations (inquiries in full), while depriving them of the authority to perform urgent investigative actions, although it is this (second) form of pre-trial proceedings that is closest to what has historically been accepted call it an inquiry.

        By virtue of the above, the author of this article adheres to the traditional point of view, according to which the inquiry, as a form of preliminary investigation, is implemented in two main types:

        - an inquiry into criminal cases in which a preliminary investigation is not necessary; and

        - an inquiry into criminal cases in which a preliminary investigation is mandatory.

        The first type, in turn, is differentiated into an inquiry conducted, let's say, in the usual manner (Chapter 32 of the Code of Criminal Procedure of the Russian Federation), and an inquiry conducted in an abbreviated form (Chapter 32.1 of the Code of Criminal Procedure of the Russian Federation).

        Finally, in the theory of criminal procedure, the idea is expressed about the need to legalize in industry legislation and in law enforcement practice the institution of protocol investigation, which, according to its developers, is not subject to identification with the protocol form of pre-trial preparation of materials.       

        Returning to the main topic of the conversation, we note that the overload of investigators of the prosecutor's office in the 50-60s of the twentieth century often led to the fact that police investigators performed a significant amount of procedural work on criminal cases not assigned by law to their jurisdiction.

        In connection with the emergence of the idea of creating a single non-departmental investigative apparatus in the USSR ^{[5, p. 33-43]}, the practice associated with the so-called "parallelism" in the work of law enforcement agencies, the "merging" of prosecutor's office investigators with police officers ^{[6, p. 55-56]}, "blurring the edges", "depersonalization" was subjected to acute controversy, disregard of the rules of subsubstantiality, etc.

        This was explained by the fact that the police in criminal cases, the investigating investigators of the prosecutor's office, often carried out a full preliminary investigation, while the latter, without taking the criminal case to their production, were limited to participating in the production of only individual investigative actions ^{[7, p. 59]}. 

         The most acute problem was revealed in the early 60s of the twentieth century, which is why the Decree of the Presidium of the Supreme Soviet of the USSR dated 06.04.1963 No. 1237-VI "On granting the right to conduct a preliminary investigation to public order protection bodies" ^[8] in the Ministry of Internal Affairs of the USSR (the so-called Ministry of Internal Affairs of the USSR. – author's note) a separate investigative apparatus was created.

        This circumstance predetermined the resumption of debates in the legal literature about the permissibility of the coexistence of investigative and operational-search units within the same department. The latter acted under the auspices of the bodies of inquiry, since the operational-search units of the internal affairs bodies (hereinafter – the Department of Internal Affairs – author's note) were rather unceremoniously extolled as such, or, at best, the operational-search units of the bodies of inquiry. Although both options did not stand up to any criticism.

        In the periodical press, there was an abundance of judgments and doubts about the validity of the functioning of two "investigation" apparatuses in the conditions of one ministry (MOO of the USSR).

        The situation was also criticized, according to which in several law enforcement agencies (for example, in the Prosecutor's office and the Ministry of Internal Affairs of the USSR) there were independent disparate investigative structures.

        In this regard, in the theory of criminal procedure and prosecutorial supervision, the opinion prevailed, according to which the prosecutor's management of pre-trial proceedings connected, allegedly, a preliminary investigation divided into different departments, giving it a single direction and ensuring its legality ^{[9, pp. 41-43]}.

        The mentioned statements were accompanied by others, the quintessence of which was the idea of the doubtfulness of the existence of both the investigative apparatus and the inquiry units at the same time in the conditions of one department. It was implied that the absence of a single investigative apparatus leads to disunity of the preliminary investigation bodies, different interpretations of the norms of the criminal procedure law by their leaders, and the destruction of the unity of established investigative practice. Because of this, the investigation of all crimes was supposed to be carried out by specialized investigative units. Another thing is that the order (procedure) of the investigation, its terms could be differentiated depending on the severity of the crime and the complexity of its actual circumstances. The procedural management of the investigators' activities should have been entrusted to their departmental heads - heads of investigative units. The prosecutor was obliged to exercise in the pre-trial stages exclusively supervision of the procedural activities of the preliminary investigation bodies, including the bodies of inquiry, taking measures to eliminate the detected violations of the law ^{[10, p. 195-201]}.

        Time-based researchers advocated the creation of a single non-departmental investigative committee, thus isolating the "avant-garde" legal idea, which, however, has not found its final embodiment to this day.   

        Other scientists insisted that the presence of investigative units in various law enforcement agencies is methodologically justified. In their opinion, such a circumstance had a beneficial effect on the specialization of law enforcement agencies. In addition, acting in isolation in specific areas of the fight against crime, they to a certain extent made up (compensated) for the omissions in each other's work.

        Assessing the accumulated experience of operational and service activities, including in the Department of Internal Affairs, the Soviet legislator and scientists focused on eliminating one of the fundamental contradictions in the strategy under discussion. It consisted in the fact that the head of the Department of Internal Affairs, who was perceived by subordinates entrusted to him in the service as an inquiry body or its chief, was in a procedural relationship dependent on the investigator. At the same time, in the administrative aspect, the latter was under the authority of the head of the Department of Internal Affairs, who was considered the body of inquiry and his boss equally.

        A strong influence on the state of the preliminary investigation bodies was seen both from the administrative management and from the operational services, which often acted outside the control of the power subject of pre-trial proceedings and exerted excessive influence on the procedure for collecting evidence and their legal assessment ^{[11, pp. 477-488]}.

        This circumstance subsequently became one of the weighty arguments in favor of separating the investigative apparatus from the prosecutor's office and transferring it to the Investigative Committee of the Russian Federation, which, however, did not happen in its completed form (involving the potential of the Investigative Department of the Ministry of Internal Affairs of the Russian Federation).

        Until the early 1990s, in federal legislation and other regulatory legal acts, as well as in law enforcement practice, the bodies of inquiry conceptually covered the operational-investigative and procedural functions of the relevant police officers. However, later, with the adoption of the autonomous federal legislation on the ORD (1992-1995), fundamental prerequisites for their mutual isolation arose. The Law of the Russian Federation of 13.03.1992 No. 2506-1 "On operational investigative activities in the Russian Federation" was adopted ^[12], then updated by the Federal Law of 12.08.1995 No. 144-FZ "On operational investigative activities" ^[13].

        In extensive comments to the named legislative acts, the idea still prevailed that, pursuing common goals of combating crime, operational-search and investigative units (inquiry units appeared later - author's note) were able to act more successfully, cultivating various means and methods that allow them to achieve the most significant results ^{[14, pp. 23-28]}.

        Due to a number of spontaneous transformations in the Ministry of Internal Affairs of the USSR (RF), the problem raised was partially resolved, but the departmental investigative committee became listed under the said ministry (1998-2011).

        The Order of the Ministry of Internal Affairs of Russia dated 04.01.1999 No. 1 "On measures to implement the Decree of the President of the Russian Federation dated November 23, 1998 No. 1422" (see SPS Consultant Plus - author's note) set out the Regulations on the Investigative Committee under the Ministry of Internal Affairs of the Russian Federation (Appendix 1) ^[15].

        Professor N.A. Vlasova is convinced that historically the formation of units and bodies of inquiry was caused by organizational and personnel problems that existed in investigative units ^[16], which, in the opinion of the author of this article, should be agreed with. However, we can add to what has been said that, having assumed a significant share of the burden of detecting and investigating crimes of small and medium gravity (Part 1 of Article 15 of the Criminal Code of the Russian Federation), they (the designated units and bodies of inquiry), at least in the system of the Ministry of Internal Affairs of the Russian Federation, freed departmental investigators from it, thus acting as a kind of "filter" at the entrance to the "labyrinths" of the analyzed law enforcement agency.

        Such qualitative differences between the inquiry and the preliminary investigation in the Soviet period were poorly expressed ^{[16, pp. 187-405]}; currently they are practically absent. As a result of long-term reforms, the inquiry has become a degraded copy of the preliminary investigation, and its further preservation, according to the conclusion of some Russian scientists, seems impractical. Such a vision seems to be extremely one-sided, because it does not offer real improvements in the organization of pre-trial proceedings, which, as a result of these innovations, is unlikely to be able to acquire anything new and useful.

       Arguing about the difference between an inquiry and a preliminary investigation, Professor V.M. Savitsky wrote back in the 70s of the last century that an inquiry equated to the legal regime of a preliminary investigation is actually a preliminary investigation ^{[17, p. 147]}.

        A similar point of view is held by Professor V.V. Kalnitsky, who notices a slight difference between the inquiry and the preliminary investigation; in addition, he states a tendency to unify them ^{[18, p. 58]}. Other scientists also argue about this ^{[19, pp. 138-142]}. 

       One of the options for reforming pre-trial proceedings, according to Professor G.N. Korolev, is to legislatively ensure the genuine procedural independence of the bodies of inquiry and preliminary investigation, representing executive authorities in criminal proceedings, and their independence from the court when making procedural decisions. Due to the fact that at present there are no fundamental differences between the inquiry and the preliminary investigation for the purposes of their production, a situation has developed in which in three departments of the executive power both the inquiry and the preliminary investigation are concentrated in the hands of one body – the body of inquiry ^{[20, p. 31]}.

        Commenting on this point of view, it is advisable to realize an important organizational and legal point, which is that in the system of the Ministry of Internal Affairs of the Russian Federation, the inquiry and preliminary investigation are concentrated in the hands not of the body of inquiry, but of the Department of Internal Affairs, more precisely, its chief.    

        Continuing his thought, Professor G.N. Korolev joins the position of Professor L.V. Golovko, who is confident that, despite all the efforts of the legislator, the differences between the inquiry and the preliminary investigation remained amorphous. Only one thing can be said about these forms of preliminary investigation: either an inquiry is a simplified version of the preliminary investigation, or a preliminary investigation is a qualified inquiry ^{[21, p. 57]}.

        Be that as it may, but the cited researchers personally ignore the most serious aspect of the differentiation of the commented forms of preliminary investigation. It is invisibly present in the objective assessment of the fact of the existence within one department of two parallel (in fact) investigative apparatuses, one of which (inquiry units) ensures the maximum effective application of the efforts of investigators to the investigation of serious and especially serious crimes, including those that remained unsolved (past years).      

        In the draft concept of the state-legal policy of combating crime, developed by the Academy of the Ministry of Internal Affairs of Russia back in 1996, in particular, it was noted that in the field of criminal procedural support for this work, it seems advisable to focus the efforts of investigators, especially the Department of Internal Affairs, on investigating the most dangerous crimes and criminal cases with a large number of episodes of criminal activity. The emphasis on this was made in parallel with the installation on the prospects of scientific substantiation of more rational forms of initial response of the bodies of inquiry and preliminary investigation to reports of crimes, as well as the elimination of an artificial gap in the procedure for obtaining evidence before and after the initiation of a criminal case ^{[22, p. 24, 25]}.

        Ardent opponents of these recitations, as a rule, object, referring to the fact that all crimes, regardless of their severity and a number of other circumstances, should be investigated equally, in a strictly defined (universal) legal regime, that is, in the form of a preliminary investigation; this position was held, for example, by Professor M.S. Strogovich.

       Such a view in the middle of the twentieth century may have been tempting. There was another country, a different criminal situation, etc. But it should be tried on to the current socio-economic situation in the country with great caution and adjusted for time, as well as accumulated experience.       

        These considerations were actualized at the end of the XX – beginning of the XXI centuries against the background of a landslide differentiation of law enforcement and regulatory agencies that set out to gain coveted independence overnight. This trend is reflected, in particular, in Federal Law No. 73-FZ of 31.05.2001 "On State Forensic Expert activity in the Russian Federation".  

        The impulse of inconsistent restructuring of the domestic law enforcement system that prevailed in the minds of reformers transformed into a spontaneous fragmentation of units and services that were once integrated in one department, which very ambiguously survived such "renovationism" later. It is enough to recall the fate of the tax police as a body of inquiry (2003) ^[23].

        At the same time, scientific consultations have multiplied on the subject of the permissibility of combining heterogeneous functions in one official, which was not avoided by the status of an inquirer. The point of view that his legal position combines the functions of criminal prosecution and prosecution, as well as the protection and resolution of a criminal case on the merits (without sending it to court), which belonged to the prerogative of a judge (court), began to be replicated.

        With the powers of the prosecutor, everything happened exactly the opposite. The Russian parliamentarians gave him the function of a systematic, ongoing criminal prosecution, providing in addition with the authority to supervise the same criminal prosecution. If the function of investigation had been preserved in industry theory and law enforcement practice, such intricacies would hardly have taken place (succeeded).      

        But that wasn't enough. Some enthusiasts began to complain about the need for appointment and production in a number of cases, so-called independent examinations, which in fact were not always carried out in good faith ("at the behest"). Timid objections to this topic have been heard in places and are being heard, including due to the fact that their average cost in various regions of the Russian Federation is off the scale. 

        Other procedural issues remain unresolved. They format irreversible difficulties in the conduct of an inquiry, and therefore reduce the effectiveness of pre-trial proceedings as a whole. Both earlier and now it is not fully clear how the generally accepted forms of preliminary investigation relate to each other; what should be meant by urgent investigative actions, what progress should be made in improving the criminal procedure legislation of the Russian Federation in this sense, etc.? ^{[24, p. 187]}   

        Some of them partially found permission in the order of the Ministry of Internal Affairs of Russia dated 09.01.2018 No. 1 "On preliminary investigation bodies in the system of the Ministry of Internal Affairs of Russia" ^[25]. However, it was not without a curiosity. Thus, Appendix 1 states that the procedure for interaction, including the investigative department with the prosecutor's office and the court, with bodies carrying out operational investigative and forensic activities, as well as inquiry, is established by the legislation of the Russian Federation and regulatory legal acts of the Ministry (paragraph 7).

        Of course, investigative departments can interact with the prosecutor's office, the court and the inquiry, but only in an organizational form and not on specific criminal cases. But to mention it casually, without serious scientific explanations (comments) is unacceptable.