Some problems of the prosecutor's supervision over the procedural activities of the preliminary investigation bodies and measures to resolve them

Rodnenok Anastasiya Aleksandrovna ORCID: 0009-0002-8198-9473 Student, Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664075, Russia, Irkutsk region, Irkutsk, Baikal str., 234B/4 ms.rodnenok@mail.ru

Filimonov Arkadii Dmitrievich ORCID: 0009-0008-2359-1989 Student, Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664081, Russia, Irkutsk region, Irkutsk, Volzhskaya str., 51 filimonovarkadiyy@rambler.ru Other publications by this author

In accordance with the organizational and administrative acts of the Prosecutor General of the Russian Federation, prosecutors are obliged to ensure effective supervision of the observance of the rights and freedoms of citizens guaranteed by the Basic Law of our state, high-quality and effective supervision of the procedural activities of the preliminary investigation bodies, timely prevent, identify and suppress violations of the rule of law, immediately take measures aimed at restoring violated rights, involve responsibility of the perpetrators at all stages of the process, to consider as a priority the protection of the rights and legitimate interests of persons, including organizations, victims of crimes, as well as the protection of the individual from unlawful and unjustified charges, convictions, etc. (On the organization of prosecutorial supervision of the observance of constitutional rights of citizens in criminal proceedings:  Order of the Prosecutor General of the Russian Federation No. 189 dated November 27, 2007. Access from the ConsultantPlus legal reference system ; On the organization of prosecutorial Supervision of the Procedural Activities of the Preliminary Investigation Bodies: Order of the Prosecutor General of the Russian Federation No. 544 of September 17, 2021. Access from the legal reference system "ConsultantPlus").

In this regard, the prosecutor's supervision is essentially a guarantee of the implementation of lawful and justified criminal prosecution, ensuring and observing the constitutional rights and freedoms of participants in the criminal process.

At the same time, based on the analysis of the provisions of the current legislation of the Russian Federation, scientific literature, judicial and law enforcement practice, today there are some problematic aspects in the implementation of prosecutorial supervision that hinder the achievement of the goals of criminal proceedings, the effective activities of bodies and officials in the criminal process, as well as the implementation of the provisions of the above-mentioned orders of the Prosecutor General of the Russian Federation, in the field under consideration.

So, in relation to such investigative actions as inspection of the dwelling (in the absence of the consent of the persons living in it); search and (or) seizure of the dwelling; seizure of a pawned or pawned thing; search, inspection, seizure against a lawyer in accordance with Article 450.1 of the Criminal Procedure Code of the Russian Federation (further – the Code of Criminal Procedure of the Russian Federation); personal search (except for cases provided for in Article 93 of the Code of Criminal Procedure of the Russian Federation); seizure of items and documents containing secrets protected by the Federal Law, as well as items and documents containing information about deposits and accounts of citizens in banks and other credit organizations; seizure of correspondence, its inspection and seizure in communication institutions; seizure of property; control and recording of telephone and other negotiations; obtaining information about connections between subscribers and subscriber devices – the consent of the court is required for their production, which makes a decision no later than 24 hours from the receipt of the petition, which was initiated by the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor. The establishment of such a period is caused by the objective need for prompt decision-making for the subsequent production of an investigative action, taking into account the restriction of constitutional rights and freedoms of citizens.

At the same time, based on the provisions of Article 165 of the Code of Criminal Procedure of the Russian Federation, a time limit is set only for the court to make an appropriate decision, in turn, unlike Article 108 of the Code of Criminal Procedure of the Russian Federation, including the procedure for approving the initiation of a petition before the court for the election of such a preventive measure as detention (Part 3 of Article 108 of the Code of Criminal Procedure establishes, that the resolution and the relevant materials must be submitted to the judge no later than 8 hours before the expiration of the detention period), the deadline for giving consent to the initiation of the relevant petition by the head of the investigative body and the prosecutor has not been established. Moreover, such a period is not established in the departmental orders of the Prosecutor General of the Russian Federation for prosecutorial supervision of the procedural activities of the bodies of inquiry and the Chairman of the Investigative Committee of the Russian Federation for Procedural Control in the Investigative Committee of the Russian Federation. In this regard, given that the promptness of making such decisions directly affects the effectiveness of the investigation, in our opinion, it is necessary to provide for a 24-hour period for considering the said petition and giving consent to its initiation before the court. There are 2 possible options for the implementation of this proposal:

1. Fix the corresponding instruction in paragraph 23 of the Order of the Prosecutor General of the Russian Federation No. 11 dated January 19, 2022 "On the organization of prosecutorial supervision of the procedural activities of the bodies of inquiry" (hereinafter – the Order of the Prosecutor General of the Russian Federation No. 11), as well as in paragraph 1.17 of the Order of the Chairman of the Investigative Committee of the Russian Federation dated January 9, 2017 No. 2 "On the organization of procedural control in the Investigative Committee of the Russian Federation" (hereinafter – the order of the Chairman of the Investigative Committee of the Russian Federation No. 2), which in general is not as laborious as the implementation of the second option.

2. Make appropriate amendments to Article 165 of the Code of Criminal Procedure of the Russian Federation, fixing the above proposal in Part one.

In addition, with regard to the problems of applying Article 165 of the Criminal Procedure Code of the Russian Federation, scientists also highlight that, unlike the provisions of Article 108 of the Criminal Procedure Code of the Russian Federation, there is no mandatory participation in the court session when considering the relevant petition by either the prosecutor or the preliminary investigation bodies initiating the initiation of the petition for investigative actions requiring a court decision. From the point of view of the Criminal Procedure Code of the Russian Federation, participation in such a meeting is considered as a right, not an obligation, which, according to some authors, entails a formal approach on the part of the court when considering relevant petitions ^{[1, p. 121; 2, p. 54; 3, p. 804-805; 4, p. 330]}. In this regard, such authors propose to directly fix in the Criminal Procedure Code of the Russian Federation the mandatory participation of a prosecutor, investigator, inquirer in a court hearing when considering a petition for investigative actions requiring a court decision ^{[5, p. 112]}.

At the same time, it is difficult to agree with such a point of view, since, based on departmental acts, such participation is considered as an obligation, which is directly enshrined in paragraph 24 of the order of the Prosecutor General of the Russian Federation No. 11, according to which mandatory participation in the prosecutor's court session should be ensured in each case of consideration by the court of the petitions of interrogators; and in paragraph 1.17 of the Order of the Chairman of the Investigative Committee of the Russian Federation No. 2, according to which investigators are required to carefully prepare for court sessions to consider petitions for investigative and other procedural actions requiring a court decision, excluding a formal approach to participation in such court sessions, reasonably stating their position to the court and, if necessary, justifiably refuting the arguments protection ^{[6, p. 98]}.

However, despite the fact that the mandatory participation of the prosecutor, the investigator is provided for by departmental acts, in our opinion, it is possible to allow participation in the relevant meetings through video conferencing in order to ensure, on the one hand, the legality of the consideration of such petitions, on the other hand, the convenience and time savings of these officials.

Also, in the scientific and educational literature, researchers are actively discussing the expediency of returning to the prosecutor the right to give the investigator written instructions on the direction of the investigation ^{[7, p. 193; 8, p. 154; 9, p. 81; 10, p. 68; 11, p. 50-51]}.

Thus, based on the provisions laid down in the Constitution of the Russian Federation, Federal Law No. 2202-1 of January 17, 1992 "On the Prosecutor's Office of the Russian Federation" (hereinafter – the Law on the Prosecutor's Office), the Code of Criminal Procedure of the Russian Federation, the powers of the prosecutor to supervise the procedural activities of the preliminary investigation bodies are determined by the goals and objectives of the prosecutor's office as a state body. In this regard, the primary goal is to ensure the protection of human and civil rights and freedoms, as well as the legally protected interests of society and the State. In turn, the need to achieve this goal determines the expediency of providing the prosecutor with certain tools, including a set of powers to supervise the procedural activities of the preliminary investigation bodies (Yastrebov, V. B. Prosecutorial supervision : textbook for law students and faculties // Moscow: ICD "Zertsalo-M", 2012. pp. 160-161).

In our opinion, it is important not only to eliminate the identified offenses, but also the real possibility of preventing their commission, thereby preventing illegal restriction of the rights and freedoms of participants in criminal proceedings.

At the same time, Federal Law No. 87-FZ of June 5, 2007 "On Amendments to the Criminal Procedure Code of the Russian Federation and the Law on the Prosecutor's Office" deprived the prosecutor of a whole set of powers necessary to achieve the above goals, in particular, the right to give the investigator written instructions on the direction of the investigation, the production of investigative and other procedural actions.

In this regard, it is no coincidence that the discussion unfolding in the vastness of the doctrine about the expediency of such legislative changes. Thus, according to some researchers, these changes have to some extent removed the prosecutor from participating in the formation of the evidence base in a criminal case, despite the fact that the prosecutor directly acts as a public prosecutor, putting forward and supporting public prosecution in court on behalf of the Russian Federation (Bushkovskaya, E. N. Supervision of the prosecutor over the procedural activities of the investigator and inquirer in pre-trial proceedings : abstract. diss. ... cand. jurid. sciences' // Moscow, 2011. p. 10).

From the point of view of other scientists in the field under consideration, such changes to a certain extent weakened the human rights mechanism in the field of criminal proceedings, since the prosecutor was thereby turned into a decorative figure, deprived of the ability to actually supervise the execution of laws by investigators ^{[12, p. 29; 13, p. 74]}.

According to a fair remark, the prosecutor's instructions are one of the most important means of ensuring the constitutional rights, freedoms and legitimate interests of citizens in criminal proceedings ^{[14, p. 8; 10, p. 68]}. In turn, the balance of private and public interests in pre-trial proceedings, which is indicated in one of its decisions by the Constitutional Court of the Russian Federation, is ensured not only through judicial control, but also through the exercise of the powers of the prosecutor (In the case of checking the constitutionality of certain provisions of the Criminal Procedure Code of the Russian Federation in connection with the complaint of citizen M.I. Bondarenko : Resolution of the Constitutional Court of the Russian Federation No. 28-P of November 14, 2017. Access from the legal reference system "ConsultantPlus"). In this regard, some authors note that the return to the prosecutor of the opportunity to give the investigator mandatory instructions, as it was before the relevant reform, could increase the effectiveness of ensuring prompt protection of the rights and legitimate interests of victims, especially since this situation persists in a number of CIS countries ^{[15, p. 59]}.

Moreover, not only process theorists justify the inexpediency of such a legislative decision. A number of practitioners also adhere to this point of view.

For example, the prosecutor of the Komi Republic explains how it is possible to overcome the restriction of the prosecutor in the right to give the investigator instructions on carrying out those investigative actions that have not been carried out, and the conduct of which is dictated by the circumstances of the crime under investigation, as well as on re-conducting those investigative actions, during which deviations from the requirements of the Criminal Procedure Code of the Russian Federation are allowed, entailing the inadmissibility of the evidence obtained in this case. So, it is proposed:

Firstly, to make appropriate proposals at operational meetings, to the prosecutor participating in them, conducted in order to coordinate the activities of law enforcement agencies, with hearing the progress and results of the investigation in a particular case.

Secondly, it is possible to give the investigator written instructions on the measures that need to be taken to eliminate the procedural shortcomings in the conduct of investigative actions when returning the criminal case to the investigative body for additional investigation without approving the indictment (Acts of prosecutorial supervision over the execution of laws in the conduct of investigative actions // Prosecutor's Office of the Komi Republic : official website. URL: https://epp.genproc.gov.ru/web/proc_11/activity/legal-education/explain?item=24076053 (accessed: 04/10/2022).

Proceeding from the above, it is possible to state that in practice, to a certain extent, there is a need to grant the right to the prosecutor to give appropriate instructions to investigators, for which prosecutors use various methods to compensate for the legal ban fixed by the legislator, which scientists also pay attention to ^{[8, p. 155]}.

At the same time, it is worth noting that the legislator retained the right of the prosecutor to give instructions to the investigator when returning a criminal case for additional investigation, changing the scope of the charge or qualification of the actions of the accused or resubmitting the indictment and eliminating the identified shortcomings (paragraph 2, part 1, Article 221 of the Code of Criminal Procedure of the Russian Federation). Therefore, it is possible to state that the legislator, having made amendments to the Code of Criminal Procedure of the Russian Federation in 2007, deprived the prosecutor of the opportunity to prevent violations during the preliminary investigation, allowing only subsequent, and not current supervision in relation to investigators.

In turn, the right of subsequent supervision is actively implemented by prosecutors, which can be traced on the basis of examples of judicial practice.

Thus, according to the appellate ruling of the Supreme Court of the Russian Federation dated October 5, 2017 in case No. 81-APU 17-14, after the prosecutor returned the criminal case to the investigator for additional investigation in accordance with paragraph 2 of Part 1 of Article 221 of the Code of Criminal Procedure, each accused was re-charged with the participation of other lawyers, then they were re-interrogated, with the accused a number of procedural actions were carried out, the accused were familiarized with the materials of the criminal case, including the decisions on the appointment and conduct of forensic examinations. Thus, considerable funds, time and efforts of the preliminary investigation bodies were spent.

Consequently, the violations of the norms of the criminal procedure law initially committed by the investigator were eliminated during the additional investigation after the relevant instructions of the prosecutor.

As another example, we can cite the appeal decision of the Shebalinsky District Court of the Altai Republic dated November 2, 2020 in case No. 10-6/2020. So, by the decree of the Deputy Prosecutor of the Altai Republic, the above-mentioned criminal case was returned to the investigator of the Ministry of Internal Affairs of Russia for the restatement of the indictment and the elimination of the identified shortcomings. At the same time, the investigator, in violation of the requirements of Articles 37, 221 of the Code of Criminal Procedure of the Russian Federation, carried out a number of investigative actions, namely, bringing charges and familiarization with the materials of the criminal case. The Court of Appeal, disagreeing with the position of the justice of the peace, pointed out that the investigator, in accordance with Article 38 of the Code of Criminal Procedure of the Russian Federation, is an official authorized within the competence provided for by the Code of Criminal Procedure to carry out a preliminary investigation in a criminal case. The relevant provisions empower the investigator to independently direct the course of the investigation, make decisions on the conduct of investigative and other procedural actions. At the same time, by virtue of Article 221 of the Code of Criminal Procedure of the Russian Federation, the prosecutor examines the criminal case received from the investigator with an indictment and makes a decision on it within 10 days. Based on paragraph 2 of Part 1 of Article 221 of the Criminal Procedure Code of the Russian Federation, the prosecutor's return of the criminal case to the investigator in this case is aimed at eliminating the identified shortcomings of the investigation and drawing up an indictment.

Analyzing the norms of the Criminal Procedure Code of the Russian Federation, as "instructions" (our italics – Rodnenok A.A., Filimonov A.D.) of the prosecutor, it is possible to regard "the statement of specific circumstances subject to additional verification" contained in a reasoned decision of the prosecutor, in case of recognition of the refusal of the head of the investigative body, the investigator in the initiation of a criminal case illegal or unfounded (Part 6 of art. 148 of the Code of Criminal Procedure of the Russian Federation).

In turn, a similar provision is contained in the order of the Prosecutor General of the Russian Federation No. 544. According to clause 1.3. of this order, recognizing the decision of the investigator, the head of the investigative body to refuse to initiate a criminal case as illegal or unfounded, to make a reasoned decision on its cancellation, in which to cite the circumstances subject to additional verification (italics ours – Rodnenok AA, Filimonov A.D.).

The wording used by the Prosecutor General of the Russian Federation is also characteristic for setting out the requirements for the decisions of prosecutors on the cancellation of decisions on the termination of a criminal case. Thus, according to paragraph 1.12. of the Order of the Prosecutor General of the Russian Federation No. 544, if the decision to suspend the proceedings or terminate the criminal case (criminal prosecution) is illegal or unjustified, make a decision in accordance with the requirements of Articles 211 and 214 of the Code of Criminal Procedure of the Russian Federation with a statement of specific circumstances subject to additional investigation.

Summarizing the above, it is worth noting that despite the exclusion from Article 37 of the Code of Criminal Procedure of the Russian Federation of the norm providing for the right of the prosecutor to give written instructions to the investigator on the conduct of investigative and other procedural actions, this authority is objectively necessary, and therefore is implemented within the framework of other legal norms, "being included" in the composition of other legal means of the prosecutor's response.

In this regard, the analysis of legislation, regulatory legal acts of the Prosecutor General of the Russian Federation, the views of scientists, opinions of law enforcement officers, confirmed by judicial practice, convincingly testifies in favor of the return to Article 37 of the Criminal Procedure Code of the Russian Federation of the prosecutor's right to give the investigator mandatory instructions on the conduct of investigative and other procedural actions. Therefore, in our opinion, it is advisable to return the appropriate authority to the prosecutor.