Types of Pre-Trial Form of Criminal Procedure Appeal

Rudakova Svetlana Viktorovna ORCID: 0000-0002-9448-8355 PhD in Law Associate Professor of the Department of Criminal Procedure, Kuban State University 350040, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 iliaylitin1994@gmail.com Other publications by this author

Pre-trial proceedings are determined by the legislator as part of criminal proceedings, from the moment of receipt and registration of a crime report and until the prosecutor sends the criminal case to the court for consideration on its merits (paragraph 9 of Article 5 of the Code of Criminal Procedure of the Russian Federation). The content of pre-trial proceedings covers the procedural activities of authorized persons at the stages of initiation of a criminal case and preliminary investigation.

V.A. Sementsov emphasizes that the main tasks of the pre-trial stages of criminal proceedings, in accordance with the current law, include the protection of human and civil rights and freedoms, ensuring legality, comprehensiveness, completeness and objectivity in the investigation of crimes ^{[8, p. 432]}. Among the means of solving these tasks, we believe, is the scope of appeal, including the powers and methods of implementation by officials of pre-trial proceedings of their powers related to the acceptance, consideration and resolution of incoming appeals.

The content of the Criminal Procedure law allows us to assert that the entire sphere of appeal is heterogeneous in its characteristics. When comparing the rules of appeal available in criminal proceedings, distinctions between fundamentally important aspects are evident: the subjects of appeal, the subject and object of appeal, the timing of appeal, legal consequences and much more.

The revealed differences allowed us to express and subsequently confirm the hypothesis that criminal procedural appeal has two main forms - pre–trial and judicial, each of which represents a set of separate types of appeal, differing in specific rules and features.

Using an analytical method in relation to the legislative regulation of each form of appeal, it is possible to determine the specifics of their internal content and, on this basis, identify the types of appeal.

In the pre-trial form of appeal, the following types are clearly manifested: universal and limited. The criterion for distinguishing these types of appeals in pre-trial proceedings is several factors. We will indicate the most obvious – these are categories of rights, violation or unlawful restriction of which may become a reason for filing a complaint. A universal type of appeal is intended to protect any rights (constitutional, unconstitutional, material, labor, property, procedural, etc.), a limited type is intended to protect exclusively the constitutional rights of subjects of criminal procedural legal relations.

There are grounds to talk about such a type of pre-trial form of appeal as internal appeal, in which officials become subjects of the right to appeal against procedural actions (inaction) and decisions of other officials (Part 4 of Article 124 of the Code of Criminal Procedure of the Russian Federation).

Also, as independent types, it is possible to distinguish and appeal against court decisions made at the request of pre-trial proceedings and appeal against court decisions made in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation. The basis for species differences lies in the uniqueness of the subject and object of appeal. Moreover, these types of appeals as their object have exclusively judicial decisions, but issued for different reasons, in different legal regimes and accompanied by peculiarities in procedural requirements. Given the lack of well-established terminology, our proposal is to give a name to these types of appeals:

– appeal of court decisions made based on the results of consideration of petitions of pre-trial bodies (Articles 165, 450.1, etc. The Code of Criminal Procedure of the Russian Federation), which we propose to call a subsequent judicial appeal;

– appeal of court decisions decided in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation, acting as a derivative of a limited type of appeal (ongoing appeal), which allows us to make a proposal to call it a secondary judicial appeal.

In this part, we want to disagree with the opinion of those scientists who note the presence of cassation appeal in pre-trial proceedings (according to court decisions) and define this appeal as a separate procedure (form) ^{[5, p. 208]}. The presence of separate stages that coincide in name and some rules for the implementation of appeals in judicial and pre-trial forms does not lead to a repetition or transition from one form to another, since the features of pre-trial appeal remain in terms of its subjects, object, subject, timing, etc., and most importantly, in the appointment of the entire form of appeal. At the same time, conditions are created for the allocation of an independent type of appeal, since the peculiarities in the circle of subjects are clearly manifested (its arbitrariness and unlimited nature disappears), the object of the appeal is specified, the limits of this appeal, the timing, the content of the complaint, etc.

In the judicial form of appeal, designed to monitor the quality of court decisions (legality, validity, motivation, fairness), the types of appeal can be distinguished taking into account the specifics of the relevant court decisions, for example, the appeal of a court verdict has the following types: appeal of a verdict decided in a general and special order (Chapters 32.1, 40, 40.1 of the Criminal Procedure Code of the Russian Federation), or on the basis of the verdict of the jury (Chapter 42 of the Code of Criminal Procedure of the Russian Federation). It is equally important to note the possibility of distinguishing other types of judicial forms of appeal, depending on the appealed procedural decision: interim ^{[3, pp. 129-122]} or final.

As a result of the conducted research, the thesis about the systematic construction of both forms of appeal was proved ^{[6, pp. 28-29]}. Accordingly, the types of pre-trial forms of appeal are based on stable both external and internal ties that have a natural character.

At the same time, such systemic connections are not always visible in the existing legislative regulation. The reason for this is the possibility of simultaneous, parallel implementation of several types of appeal at once, and the choice of the type of appeal is arbitrary. In law enforcement practice, it is far from uncommon when a complaint about the same procedural action (inaction) or decision is sent to several addresses: to the head of the investigative body, to the prosecutor and to the court. The existence of such an alternative gave rise to the need for clarification in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of February 10, 2009 (hereinafter Resolution of the Plenum No. 1) that in such a situation, the court should find out whether there is no decision of the prosecutor or the head of the investigative body to satisfy such a complaint, and if there is, a decision is made to refuse to accept the complaint by the court for consideration or the complaint proceedings are terminated (such circumstances are revealed in the court session)^[1].

At the same time, the alternative of appeal in pre-trial proceedings becomes the cause of negative trends, first of all, leads to abuse of the right to appeal. No less significant problems generated by the alternative appeal are associated with the possibility of simultaneous issuance of essentially different decisions by the prosecutor and the head of the investigative body on a complaint about the same action (inaction) and/or decision. It is also possible to point out the inefficient waste of procedural resources that could be used to solve urgent tasks.

The alternative nature of the types of appeal in pre-trial proceedings determines their relative independence and their own legal significance for achieving the final result of the appeal. It turns out that, having realized the right to appeal against an object within, for example, a universal type, the subject, dissatisfied with the result, must start all over again within another type, for example, limited (subject to the category of protected rights). At the same time, the very fact of repeating the appeal already indicates a negative background of the appeal, as well as any other duplication in procedural activity.

It is noteworthy that scientists pay attention to the wide possibilities of prosecutors to ensure the legality of pre-trial proceedings, including by checking complaints received from participants in criminal proceedings and their resolution. V.A. Sementsov writes about the advantages of considering a complaint by a prosecutor: "The prosecutor, as a supervisory body for the inquiry and preliminary investigation, undoubtedly has more opportunities (compared with the court) to verify such a complaint" ^{[9, p. 26]}.

At the same time, separate problems are highlighted in this area of appeal, for example, the competition of procedural competence between officials called upon to consider and resolve complaints, which, according to S.S. Burynin, should be excluded, "ensuring proper interaction to fulfill the tasks of criminal proceedings" ^{[2, p. 28]}.

Another problem that scientists write about is the insufficiency of the powers of power subjects ^{[10, p. 47]}. Among the debatable issues of interest to scientists within the framework of the type of appeal under consideration, the following can also be indicated: functions and their content, the relationship of officials ^{[4, p. 84]}, the powers of the head of the investigative body in relation to appealing court decisions ^{[1, p. 432]}, the redistribution of powers of officials (mainly between the prosecutor and the head investigative body) on appeal and consideration of complaints ^{[7, p. 142]} and many others.

These and other aspects concerning the determination of the totality of the powers of the power participants within the framework of a universal type of pre-trial form of appeal are of an applied nature and to a certain extent considered in the modern science of criminal procedure, with the development of proposals, including of a debatable nature. However, the available approaches are of a private nature. We believe that this kind of improvement should take into account the basics of building an appeal. And in this part, the issue of fundamental importance for the universal type of pre-trial appeal, in general, and the formation of a scientifically based approach to solving its individual problems, including the formation of a set of powers of officials, urgently requiring scientific resolution, is the definition of its object, subject and limits.

It seems that all these situations can be eliminated by organizing all types of pre-trial forms of appeal into a single system, establishing the necessary levels of interaction and dependence between them.

The author of this study considers the system of pre-trial appeal to be as follows.

The first type is universal, carried out by appealing procedural actions (inaction) and decisions by participants in criminal proceedings involved in pre–trial proceedings to protect their own or represented interests.

Levels of universal appeal:

1) departmental appeal, within the framework of which any complaints can be filed and submitted for consideration and resolution:

– to the head of the investigative body in relation to procedural actions (inaction) and decisions of the investigator;

– to the head of the body of inquiry in respect of procedural actions (inaction) and decisions of the inquirer;

– to the head of the inquiry unit regarding procedural actions (inaction) and decisions of the inquirer;

2) appeal to the prosecutor of decisions made by the head of the investigative body, the head of the inquiry body and the head of the inquiry unit at the previous level;

3) judicial appeal, in which the decisions of the prosecutor made at the second level are appealed.

It seems that the sequence of application of these levels in universal appeal will create the necessary logic in the exercise of the right to appeal, minimize the opportunities for abuse of this right, eliminate duplication in the activities of bodies authorized to resolve complaints. In the proposed construction of the levels of universal appeal, the compensatory nature of the elements is clearly manifested, where the court and the prosecutor ensure the fulfillment of the purpose of the entire appeal system. The procedure of the court session at the last – third level of appeal allows, in conditions of competition, to determine the presence or absence of violations and errors in the procedural activities of the pre-trial production bodies.

In addition, the participation of the court in the universal appeal provides the necessary balance of all elements of the appeal system and avoids accusatory, departmental and other bias in the consideration of complaints.

At the same time, it seems advisable to maintain a limited type of appeal as an independent method of pre-trial appeal, when a complaint is filed with the court against procedural actions (inaction) and decisions of officials of pre-trial proceedings and the prosecutor that violate or restrict the constitutional rights and freedoms of participants in criminal proceedings and other persons. This type of appeal remains unchanged as the main way to protect the constitutional rights and freedoms of citizens. The condition of its compensatory nature is the possibility of applying the following type of appeal – secondary, to higher judicial instances.

Due to the fact that the study of secondary judicial, subsequent judicial and internal types of appeal in pre-trial proceedings needs more specifics, in this study we will limit ourselves to putting forward the very idea of their existence and revealing some of their features.

Nevertheless, let us illustrate by a practical example the significance of a secondary type of appeal in pre-trial proceedings, when a court of a higher judicial instance restores the applicant's constitutional right to access to justice and cancels the decision of the court of first instance to refuse to accept a complaint filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation.

Thus, the Second Cassation Court of General Jurisdiction, overturning the decisions of lower courts, noted that contrary to the conclusions of the court of first instance, the applicant's complaint filed in accordance with Article 125 of the Code of Criminal Procedure in the interests of the accused, indicated which actions and which official are being appealed and what, in the applicant's opinion, the appealed decisions violate the rights of the principal. In such circumstances, the judicial collegium declared the conclusions of the court of first instance on the absence of the subject of appeal and the information necessary for its consideration on the merits to be untenable. The appellate instance, checking the legality and validity of the decision on the lawyer's complaint, ignored these circumstances, without sufficiently checking the applicant's arguments about the violation of the constitutional rights of the accused by the refusal of the court of first instance to accept the complaint filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation. The violations of the criminal procedure law committed by the court of appeal instances were recognized as significant, affecting the outcome of the case, and are the basis for the cancellation of the appeal decision^[2].

It should be noted that the secondary type of appeal is carried out on the basis of the provisions of Article 127 of the Code of Criminal Procedure of the Russian Federation. According to her instructions, a judge's ruling that has not entered into legal force, adopted on appeal in accordance with Articles 125, 125.1 of the Code of Criminal Procedure of the Russian Federation, may be appealed according to the rules established by Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation, and a judge's ruling that has entered into legal force – in the cassation procedure established by Chapter 47.1 of the Code of Criminal Procedure of the Russian Federation. The suspect, the accused, their defenders (legal representatives), the prosecutor who participated in the consideration of the case by the court of first instance, the superior prosecutor, the victim, his legal representative and representative, as well as another person (the applicant) have the right to file appeals and cassation complaints in the part in which the appealed court decision affects his rights and legitimate interests. interests.

The Criminal Procedure Law does not grant officials of the bodies of inquiry and preliminary investigation, whose actions (inaction) and decisions were appealed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation, the right to appeal the judge's decision.

The resolution of the Plenum No. 1 states that the courts of appeal and cassation instances should take measures to provide the applicant with the opportunity to bring his position to court by filing an additional appeal, cassation appeal, written explanations, participation in the case of a lawyer and (or) a legal representative. The following examples from judicial practice testify to non-compliance with the rule on providing an appropriate opportunity to the interested person (applicant) to exercise the right to participate in the court of appeal session.

The appeal against the court decision adopted in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation was considered by the court in the absence of the appellant K., who, in accordance with the law, was given the opportunity to bring his position on the case by providing written explanations, using the help of lawyers and other representatives, as well as by other means provided for by law (filing additional complaints, written explanations and At the same time, there is no information that K. was duly notified of the place, date and time of the court session to consider his appeal, and a copy of the judge's decision explaining the procedure for bringing his position to the court of appeal was handed to him, in the case materials is not contained^[3].

In another case, the Second Cassation Court of General Jurisdiction, overturning the decision of the Moscow City Court, indicated that according to the materials submitted, the court session of the Court of appeal took place in the absence of both applicants. At the same time, there is no objective data confirming the proper notification of the applicant about the day of the court session in the material. Here, the applicants' arguments that the court of appeal violated the principle of adversarial nature of the parties, as well as their right to participate in the court session, deprived them of the opportunity to bring their position to court deserve attention^[4].

According to the explanations set out in the resolution resolution of the Plenum No. 1, in cases where, after the entry into force of the judge's decision taken in accordance with Article 125 of the Code of Criminal Procedure, the court will receive a complaint against the decision of the prosecutor, the head of the investigative body, adopted on the complaint of the applicant, filed in accordance with Article 124 of the Code of Criminal Procedure, on refusal to upon initiation of a criminal case, termination of a criminal case and on other issues on which a court decision has already taken place, the court must refuse to accept such a complaint if it does not contain new circumstances that were not investigated at the court session. It is worth noting, firstly, among the decisions taken in practice based on the results of consideration of complaints in accordance with Article 124 of the Code of Criminal Procedure of the Russian Federation, there are none that are not provided for in the law, in particular, on refusal to accept a complaint. But judicial practice develops differently (when courts decide to refuse to accept a complaint, which is not provided for in Article 125 of the Code of Criminal Procedure of the Russian Federation). Secondly, it is difficult to refuse to accept a complaint based on an analysis of the arguments and circumstances contained in it without actually holding a court session and considering the merits.

In general, the appeal procedure for appealing court decisions made in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation is regulated by the rules provided for in Chapter 45.1 of the Code of Criminal Procedure of the Russian Federation.

The implementation of the procedures and rules provided for the appeal procedure for appealing verdicts and other court decisions in relation to the filing of appeals and submissions to court decisions issued in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation reveals many problematic aspects.

The first of them is the procedural time limit for appealing court decisions that have not entered into force, which, as a general rule, is 15 days, except for the execution of the decision regarding the release of the accused from custody, which is subject to immediate execution (Part 3 of Article 391 of the Criminal Procedure Code of the Russian Federation). The execution of a court decision adopted in the order of appeal proceedings is suspended (part 1 of art.

If the appeal of court decisions issued in accordance with Article 125 of the Code of Criminal Procedure is carried out according to the rules of Chapter 45.1 of the Code of Criminal Procedure, then the execution of the court decision must be carried out after the expiration of the 15-day period, and the filing of an appeal, submission must suspend the execution of the court order in accordance with Article 125 of the Code of Criminal Procedure.

Here the question arises, why is the procedure for the initial appeal of a court decision, decided upon the results of consideration of a complaint in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation called appellate, if the execution of the appealed court decision in case of satisfaction of the complaint, as a rule, is carried out in shorter than 15 days?

The answer to this question seems to show the existing peculiarity of the secondary type of appeal in pre-trial proceedings, which distinguishes it from the appeal in the general procedure. And, as we believe, this peculiarity is essential, and, obviously, it is necessary to take steps to further implement it.

It is advisable to adapt the procedure of secondary appeal to the peculiarities of pre-trial proceedings and thereby completely separate the secondary type of judicial appeal from the appeal proceedings. To this end, we propose to provide for a period of such an appeal – 3 days. At the same time, the court order must enter into legal force, after which it must be subject to immediate execution. But the appeal appeal should not suspend its execution, and this circumstance should be explicitly stated in the Criminal procedure law.

The second aspect is also related to the timing, but not of filing a complaint, but of proceedings in higher courts. According to Article 389.10 of the Code of Criminal Procedure of the Russian Federation, the consideration of a criminal case on appeal must be initiated in the Supreme Court of the Republic, the regional or regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court – no later than 30 days, in the court of appeal of general jurisdiction, the military court of appeal and in the Supreme Court of the Russian Federation – no later than 45 days from the date of its receipt in the court of appeal. These deadlines for their implementation in pre-trial proceedings are excessive, since there can be no question of the promptness of the appeal. And in some cases, the relevance and significance of the execution of a court decision is lost, since a criminal case after such a long time may already be transferred to the court. Therefore, it is advisable to shorten these procedural terms.

Once again, we emphasize that long periods of secondary appeal, a complicated procedure for filing and considering appeals and representations, which is used in the field of appealing court decisions in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation in practice leads to protracted litigation, which does not contribute to achieving the task of restoring legality in pre-trial proceedings.

For example, canceling the cassation ruling of the Judicial Board for Criminal Cases of the Second Cassation Court of General Jurisdiction, the judicial board for Criminal Cases of the Supreme Court of the Russian Federation indicated that the lower court of cassation motivated the cancellation of the appealed decision by the fact that the court of appeal, having accepted the prosecutor's appeal submission dated May 8, 2020, did not take into account that it it did not meet the requirements of the criminal procedure law and was subject to return for its resubmission, as it did not contain arguments about the illegality of the decision of the court of first instance. The second appeal was filed on May 21, 2020, with the expiration of the appeal period and in the absence of a petition for its restoration.

The Supreme Court noted that the court of cassation instance did not take into account that, in accordance with Part 1 of Article 389.4 of the Code of Criminal Procedure of the Russian Federation, an appeal, a submission to a verdict or other decision of the court of first instance may be filed within 10 days from the date of the court decision. This requirement has been fulfilled by the public prosecutor, the appeal submission, in which arguments are given about the inconsistency of the decision of the court of first instance, Part 4 of Article 7 of the Code of Criminal Procedure of the Russian Federation, was filed within the prescribed time. The prosecutor's right to bring an additional appeal is enshrined in Article 389.8 of the Code of Criminal Procedure of the Russian Federation^[5].

An interesting result of studying this example is the calculation of the timing of a secondary judicial appeal of a decision made in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation. The Court of First Instance on April 30, 2020, by a resolution of the Babushkinsky District Court of Moscow, granted the complaint of the lawyer in the interests of the principal, filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation, on the recognition as illegal and unfounded the resolution of February 27, 2019 on the wanted list of K. and the resolution of March 12, 2019 on declaring him on the international wanted list, obliging the investigator to eliminate the violations committed. By the appeal decision of the Moscow City Court of February 17, 2021, the decision of the court of first instance was canceled. By the cassation ruling of the Judicial Board for Criminal Cases of the Second Cassation Court of General Jurisdiction dated May 11, 2021, the appeal ruling has already been canceled and the proceedings on the prosecutor's appeal submission dated April 30, 2020 have been terminated. In turn, the cassation ruling of the Judicial Board for Criminal Cases of the Second Cassation Court of General Jurisdiction dated May 11, 2021 against the accused K. was canceled on October 12, 2021 by the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation.

As a result, for a year and a half (!), the issue of declaring the accused K. was resolved in different ways. in the All-Russian and then international search.

The problem of the timing of a secondary judicial appeal is also very relevant because its manifestation has systemic consequences that negatively affect the entire set of constitutional rights of participants in criminal procedural relations, up to the restriction of the right to access to justice.

Considering the above, we propose to state Part 7 of Article 125 of the Code of Criminal Procedure of the Russian Federation in the following wording:

"A judge's decision issued in accordance with part five of Article 125 of this Code may be appealed to a higher court, taking into account the specifics provided for in Article 389.3 of this Code, within 3 days from the date of its issuance. The higher court makes a decision on the complaint or submission no later than 3 days from the date of their receipt. The decision of the higher court is subject to execution within 3 days. Officials and bodies, decisions, actions (inaction) which are recognized as illegal and unjustified notify the court of the elimination of the violation. A decision of a higher court made in respect of a court decision issued in accordance with Article 125 of this Code may be appealed according to the rules established by Chapter 47.1 of this Code."

Subsequent judicial appeal as a type of pre-trial form of appeal, as well as secondary, is based on the provisions of Article 127 of the Code of Criminal Procedure of the Russian Federation and specified in its contents Chapters 45.1 and 47.1 of the Code of Criminal Procedure of the Russian Federation. The distinctive properties of this type of appeal are the originality of the subject and object. The subject matter is judicial decisions taken at the request of pre-trial bodies on the production of investigative and other procedural actions, the use of procedural coercion measures, as well as decisions on the legality/illegality of investigative actions performed in accordance with Part 5 of Article 165 of the Criminal Procedure Code of the Russian Federation.

The object of the appeal is compliance with the legislative requirements imposed both on the specified court decisions and on the production of investigative and other procedural actions implemented by a court decision.

Despite the unity of the legal basis between the two types (secondary and subsequent) of appeal, there is a very significant difference. A secondary appeal always takes place on the basis of a complaint filed in accordance with the procedure established by law to the relevant higher judicial instances.

The study of the subsequent judicial appeal revealed interesting circumstances. Here is the explanation of the Plenum of the Supreme Court of the Russian Federation given in paragraph 14 of the Resolution "On the practice of applying legislation when considering criminal cases in the Court of First Instance (general procedure of legal proceedings)" dated December 19, 2017 No. 51. In particular, it says: "To explain to the courts that the presence in the case file of a court order issued during pre-trial proceedings in accordance with the procedure established by Article 165 of the Code of Criminal Procedure of the Russian Federation on the authorization of the investigative action or on the legality of the investigative action carried out without prior permission of the court (part 5 of Article 165 of the Code of Criminal Procedure of the Russian Federation), is not releases the public prosecutor from the obligation to refute the arguments of the defense about the inadmissibility of evidence obtained during the specified investigative action, if they are presented at a court hearing, and the court from the obligation to check the circumstances of its conduct and take a reasoned decision on the petition submitted by the defense party"^[6].

We emphasize the fact that the Supreme Court does not consider the existing court decision taken in pre-trial proceedings as an obstacle to the adoption by the court of first instance of another decision on the same issue (for example, on the legality of the investigative action carried out on the basis of Part 5 of Article 165 of the Criminal Procedure Code of the Russian Federation). Please note: the adoption of a different court decision takes place outside the appeal procedure, without filing a complaint, without any deadlines.

Such an atypical situation is not the only one that is possible with respect to court decisions made at the request of pre–trial bodies. Let us illustrate this thesis by the example of choosing a preventive measure – detention, when an investigator applies to the court with a corresponding petition and receives a court decision on its satisfaction. After some time, the defendant's defender may apply to the investigator with a request to change the preventive measure, motivating his request by the deterioration of the client's health, which does not allow him to be in places of forced detention. In this situation, the investigator changes the previously chosen measure of restraint, for example, on his own recognizance not to leave. We note once again: the court decision on detention has not been canceled in the order of its appeal and further passage of the procedure established for appeal. But it ceases to operate when certain legal situations occur. Such situations can be considered as a veiled appeal and have very peculiar legal consequences (an invalid court decision, the presence of two or more court decisions on the same procedural issue, etc.).

And now about the so-called internal appeal, by which we mean the appeal by officials of actions (omissions) and decisions of other officials in pre-trial proceedings. The internal appeal is also not free from various kinds of problems and difficulties. We note, in particular, discrepancies in the provisions of the Code of Criminal Procedure of the Russian Federation, which determine in one case the appeal of the prosecutor's decisions, and in the other – his instructions (for example, paragraph 1.2 of Part 2 of Article 41 and Part 4 of Article 41 of the Code of Criminal Procedure). In such a situation, it is especially important to know exactly what the subject of the appeal is, what its object and limits are.

It seems that the internal appeal, as well as the universal form, should obey the principle of hierarchy. At the first level of internal appeal, an investigator or inquirer (regardless of the method of acquiring procedural status: when he is a full-time inquirer, or is authorized to do so by the head of the body of inquiry) must be authorized to appeal against the instructions and decisions of the head of the investigative body and the head of the inquiry unit, respectively, to the higher head of the investigative body, the head of the body of inquiry or the head of the higher body of inquiry (Part 2 of Article 40.2 of the Code of Criminal Procedure of the Russian Federation).

The second level of internal appeal is an appeal to the prosecutor. We believe that the "withdrawal" of departmental appeals to the non–departmental level - the prosecutor's office, will avoid departmental interest in the consideration and resolution of complaints, as well as increase its effectiveness and the degree of protection of both procedural decisions of the investigator and the inquirer, and other participants in criminal proceedings.

Concluding the study of the appeal system in pre-trial criminal proceedings, its types, we will formulate the main conclusions.

1. In the pre-trial form of appeal, which is applied independently, is characterized by self-sufficiency, independence, isolation and specificity of means, several types are allocated: universal appeal of procedural actions (inaction) and decisions of pre-trial proceedings and the prosecutor by participants who have a personal or represented interest; internal appeal (appeal by officials of decisions of other officials); limited judicial appeal of procedural actions (inaction) and decisions of pre-trial bodies and the prosecutor that violate or restrict the constitutional rights or freedoms of participants; secondary judicial appeal (appeal of court decisions decided in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation); subsequent judicial appeal (appeal of court decisions decided based on the results of consideration of petitions of the investigator and inquirer).

2. The organization of the pre-trial appeal system is determined by:

– general principles, which include the principles of criminal proceedings, the main task of pre-trial appeal, criminal procedural nature, the range of subjects (carriers) of the right to appeal, subjective rights in the field of appeal, subjective duties of authorized officials and state bodies, linear (equal) nature of all elements, complexity;

– the presence of several structural elements (procedural actions allowed for the subjects of appeal, and the procedure for their implementation by official (official) and private persons, as well as state bodies, including means of initiative realization of the right to file a complaint; the timing of the right to file, its permitted period, as well as other elements of the content of the right to appeal; rules registration of the complaint and procedural actions aimed at its submission to official bodies; methods of acceptance of the appeal, including the timing and procedure for verification; procedure for consideration and resolution of the complaint; rules for notification of the results of its consideration).