On some the trends in the development of the prosecutor's supervision of the procedural activities of the bodies of inquiry

Danilenko Irina Anatol'evna PhD in Law Associate Professor; Department of Criminal Procedure Law; Kutafin Moscow State Law University (MGUA) 20 Verkhnyaya str., office 346, Moscow, 125040, Russia irinadanilenko35@gmail.com

Tabolina Kseniia Andreevna ORCID: 0000-0003-4991-7269 PhD in Law Associate Professor; Department of Criminal Procedure Law; Kutafin Moscow State Law University (MGUA) 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 kysi-kyss@yandex.ru

Currently, the inquiry, as one of the forms of preliminary investigation, is an actively developing law enforcement institution, which is entrusted with the task of investigating crimes of small and medium gravity. It would probably be incorrect to say that the inquiry is a secondary form of preliminary investigation, since the complexity of this type of investigation of offenses is slightly inferior to the form of preliminary investigation, in which serious and especially serious crimes are investigated. A significant difference between these two forms of law enforcement activity is the different scope of the prosecutor's powers to supervise the procedural activities of the bodies of inquiry and the bodies of preliminary investigation. The prosecutor has a much broader scope of authority in relation to the conduct of an inquiry, but how justified this is should be investigated.

The problems of the prosecutor's supervision in relation to the activities of the bodies of inquiry and preliminary investigation became particularly relevant after the reform of the prosecutor's powers in pre-trial criminal proceedings in 2007 and were reflected in the works of N.V. Bulanova, L.M. Volodina, B.Ya. Gavrilov, P.S. Efimicheva, S.P. Efimicheva, V.N. Isaenko, V.A. Lazareva, L.N. Maslennikova, I.V. Ovsyannikova, K.A. Rygalova, K.A. Tabolina, A.G. Khaliulin, G.P. Khimicheva, O.V. Khimicheva, V.B. Yastrebova and other prominent scientists. Thus, general and particular issues of the prosecutor's participation in pre-trial proceedings were the subject of research in the monographs of N.V. Bulanova "Prosecutor in the pre-trial stages of criminal proceedings of the Russian Federation" ^[2], K.A. Tabolina "Supervision of the prosecutor over the initiation and investigation of criminal cases" ^[18], K.A. Rygalova "Activity and role of the prosecutor when exercising judicial control in pre-trial proceedings in criminal cases" ^[13].

The dissertation studies of Sh.M. Abdul-Kadyrov "The prosecutor's criminal prosecution and supervision of the execution of laws in pre-trial proceedings" ^[1], D.I. Erezhipalieva "The prosecutor as a participant in criminal proceedings on the part of the prosecution in the pre-trial stages" ^[8] and others were devoted to the issues of the prosecutor's supervisory activity in criminal proceedings. A significant contribution to the development of the theory and practice of prosecutor's supervision was made by the works of A.G. Khaliulin, including the scientific article "The powers of the prosecutor to supervise the procedural activities of the preliminary investigation bodies" ^[19].

At the same time, insufficient attention has been paid to the trends in the development of the prosecutor's supervision of the procedural activities of the bodies of inquiry in science, the issue of the need for the prosecutor to have broad powers in relation to the inquirer remains debatable.

In particular, A.V. Spirin believes that the procedural independence of the inquirer should be expanded, freeing him from unjustified "prosecutor's custody" ^[16]. V.V. Sitnik proposes to exclude the prosecutor's right to give written instructions to the inquirer on the direction of the investigation and the production of procedural actions, the resolution of taps to interrogators, as well as their recusals, removal from the investigation, by transferring these powers to the head of the body (division) of the inquiry ^{[14, pp. 191-192]}. In addition, a number of authors advocate the idea of the need to expand the powers of the head of the body of inquiry ^[17] and the head of the department of inquiry ^[12].

O.V. Khimicheva holds a different point of view regarding the powers of the prosecutor, considering that "the expansion of the procedural powers of the head of the inquiry unit should not lead to infringement of the prosecutor's supervision of the procedural activities of the bodies of inquiry, which functions as an independent system independent of the supervised departments, and the possible duplication of the powers of the head of the inquiry unit and the prosecutor (for example, in terms of cancellation illegal or unjustified procedural decisions of the inquirer) will only serve to strengthen the rule of law and more reliable guarantees of citizens' rights" ^{[20, p. 11]}.

Thus, in science there is no single approach to the sufficient scope of the prosecutor's powers in relation to the production of bodies of inquiry, as well as to the prospects for building procedural interaction between the prosecutor and the inquirer, which confirms the relevance of this study.

The study of this issue in this article requires an appeal to the general scientific dialectical method of cognition, which allows us to understand the development of the prosecutor's supervision of the procedural activities of the bodies of inquiry and establish the cause-and-effect relationships of existing phenomena, including the validity of the current scope of the prosecutor's powers. It is also advisable to use complex methods such as analysis, which provides an opportunity for in-depth study of individual powers of the prosecutor in the framework of the implementation of the area of supervision under study; historical, with which it is possible to determine the main retrospective trends in the development of a legal institution; formal-logical and systemic-structural, allowing to formulate conclusions of the work; statistical, building the obtained scientific results on the basis of generalizations of mass phenomena in the implementation of supervisory activities. The chosen methodological approach provides an opportunity to achieve reliable scientific results with elements of scientific novelty.

If we turn to the history of the evolution of prosecutorial supervision of the procedural activities of the bodies of inquiry, we can see that Russia has always been characterized by the presence of leadership and effective supervisory powers of the prosecutor. Thus, even in the Statute of Criminal Proceedings of 1864 (Article 279), it was fixed that "police ranks are directly dependent on prosecutors and their comrades for the investigation of criminal acts," that is, the body of inquiry was subordinate to the prosecutor, and the actions of the police conducting the inquiry were also appealed to the prosecutor (Article 493 of the Criminal Code).

The Criminal Procedure Codes of the RSFSR of 1922 and 1923, adopted after the Statute of Criminal Proceedings, established that the general supervision of the investigation belonged to the prosecutor's office, which had the right to familiarize itself with all the materials of the inquiry at any time and in relation to any case, to give instructions to the bodies of inquiry on the conduct of procedural actions. Complaints about the actions of the bodies of inquiry were brought to the prosecutor (Article 109 of the Code of Criminal Procedure of the RSFSR of 1922, Article 107 of the Code of Criminal Procedure of the RSFSR of 1923).

Of particular importance for the supervision of the prosecutor over the procedural activities of the bodies of inquiry was the adoption of the Criminal Procedure Code of the RSFSR in 1960, which included chapter 18 "Supervision of the prosecutor over the execution of laws by bodies of inquiry and preliminary investigation." This chapter consolidated the strengthened powers of the prosecutor in relation to the bodies of inquiry and investigative bodies, such as giving written instructions on the investigation of crimes, on the election, modification or cancellation of a preventive measure, the qualification of a crime, the production of certain investigative actions and the search for persons who committed crimes; the removal of the person conducting the inquiry or the investigator from further conducting the inquiry or preliminary investigation, if they committed a violation of the law during the investigation of the case, etc. (Article 211 of the Code of Criminal Procedure of the RSFSR 1960).

Thus, historically, the main sources of criminal procedure law endowed the prosecutor with an extensive range of powers in relation to investigative bodies, the same approach was reproduced in the Criminal Procedure Code of the Russian Federation in 2001, where the prosecutor was also given a wide range of powers to supervise the execution of laws by investigators and interrogators. Initially, the powers of the prosecutor were not differentiated depending on the form, type or stage of the investigation and were the same for the investigation and inquiry bodies. However, with the adoption of Federal Law No. 87-FZ dated 06/05/2007 "On Amendments to the Criminal Procedure Code of the Russian Federation and the Federal Law "On the Prosecutor's Office of the Russian Federation", the Prosecutor's office lost a significant amount of authority in relation to investigative bodies, generally retaining its governing powers in relation to bodies of inquiry. At the same time, with a difference of one day, Federal Law No. 90-FZ dated 06.06.2007 "On Amendments to the Criminal Procedure Code of the Russian Federation" was adopted, which introduced a new participant in criminal proceedings - the head of the inquiry unit, and also regulated in more detail the procedure for conducting an inquiry.

The amendments made to the legislation in 2007 not only narrowed the powers of the prosecutor during the preliminary investigation, but also created some ground for the possibility of reducing the powers of the prosecutor in the procedural management of the inquiry, which is confirmed by acute discussions in the scientific community about the need to reduce the scope of the prosecutor's powers during the investigation ^{[14, 16]}.

At the moment, the prosecutor's activities in relation to the bodies of inquiry can be divided into the following areas:

- supervision of the enforcement of laws by the bodies of inquiry when receiving, registering and resolving reports of crimes;

- supervision of the investigation of criminal cases;

- supervision of the observance of human and civil rights and freedoms during the investigation;

- criminal prosecution, including the procedural management of the activities of the bodies of inquiry.

The supervisory powers of the prosecutor over the execution by the bodies of inquiry of laws when receiving, registering and resolving reports of crimes are directly enshrined in paragraphs 1 and 3 of Part 2 of Article 37 of the Code of Criminal Procedure, which fix the powers of the prosecutor to verify compliance with the requirements of the law at the initial stage of criminal proceedings and to demand the elimination of violations of federal legislation. In accordance with the order of the Prosecutor General of the Russian Federation dated 10/23/2023 No. 730 "On the organization of prosecutorial supervision of the execution of laws when receiving, registering and resolving reports of crimes in the bodies of inquiry and preliminary investigation", prosecutors at all levels are required to ensure constant and effective supervision of the strict fulfillment of legal requirements by bodies of inquiry and investigation at the stage of initiation of a criminal case. At the same time, prosecutors should pay special attention to issues of compliance with the competencies of authorized officials of the bodies of inquiry.

At the same time, in practice, the question often arises about who can be attributed to the "authorized official of the body of inquiry". Traditionally, the powers of the body of inquiry are assigned to an official of the body of inquiry by an order of the head of the body of inquiry on appointment to the position of an inquirer or by a written order on appointment as an inquirer in a specific criminal case ^{[10, p. 98]}. It should also be borne in mind that the Code of Criminal Procedure of the Russian Federation (Part 2 of Article 41) does not allow the assignment of powers to conduct an inquiry to the person who conducted or is conducting operational investigative measures in this case.

At the same time, "the criterion for the legislator to endow an executive authority with the functions of investigating crimes, as well as the very terms of authority of this body, are not completely clear" ^{[6, p. 116]}. The Criminal Procedure Law refers to the bodies of inquiry: the internal affairs bodies of the Russian Federation and their constituent territorial, including linear, police departments (departments, offices, points), as well as other executive authorities authorized to carry out operational investigative activities (ORD); enforcement agencies; heads of bodies military police of the Armed Forces of the Russian Federation, commanders of military units, formations, heads of military institutions and garrisons; state fire supervision bodies of the federal fire service.

The list of bodies of inquiry is not closed, since paragraph 1 of Part 1 of Article 40 of the Code of Criminal Procedure of the Russian Federation contains a reference to other executive authorities vested in accordance with federal law with the authority to implement the Order. According to Article 13 of the Federal Law "On Operational Investigative Activities", these include operational units of the FSB of Russia, the Federal Security Service of Russia, the Federal Customs Service of Russia, the SVR of Russia, the Federal Penitentiary Service of Russia.

It should be emphasized that prosecutors are obliged to respond in principle and strictly to the combination of criminal procedural and operational investigative activities by one official, preventing cases of investigative and other procedural actions by an employee who previously conducted operational investigative activities.

In addition, prosecutors should pay special attention to the timing of registration and verification of reports of crimes, issues of assessing the reliability of documents and the results of pre-investigation checks. Prosecutors are obliged to check whether illegal influence was applied to the applicant who changed his appeal (or explanation) or refused it, as well as the correctness of the application of the norms of substantive and procedural law, whether the applicant was notified of the results of consideration of the report on the crime, and whether the procedure for appealing the decision was explained to him.

It should be noted that by Order of the Prosecutor General of the Russian Federation No. 11 dated 01/19/2022 "On the organization of prosecutorial supervision of the procedural activities of the bodies of inquiry", prosecutors are instructed if there are grounds, including cases of identification of facts of falsification of materials of pre-investigation checks, as well as if measures are not taken to search for persons who committed criminally punishable acts, which led to the expiration of the statute of limitations for bringing to justice in accordance with paragraph 2 of Part 2 of Article 37 of the Criminal Procedure Code of the Russian Federation, send materials concerning guilty officials of the bodies of inquiry to the investigating authorities to resolve the issue of their criminal prosecution. However, such a form of prosecutorial response is possible only based on the results of a comprehensive and complete check containing sufficient data on the signs of a crime.

The measure of the prosecutor's response to illegal or unjustified decisions of the bodies of inquiry on the initiation of a criminal case is the authority to issue a decision on the cancellation of the initiation of a criminal case within 24 hours from the moment of receipt of the verification materials. In relation to the bodies of inquiry, prosecutors exercise this authority in case of improper application of criminal and (or) criminal procedure legislation, including when detecting violations entailing unlawful prosecution or recognition of evidence as inadmissible. In addition, in each case of initiation of a criminal case by the bodies of inquiry, especially when conducting an inquiry in an abbreviated form, prosecutors should check the correctness of the qualification of the deed, including from the position of excluding its understatement.

Although in recent years there has been a tendency to reduce the number of illegally and unreasonably initiated criminal cases, in practice, prosecutors often have to face the need to cancel decisions on the initiation of criminal proceedings. Thus, according to the data of the Prosecutor General's Office of the Russian Federation, in Russia in 2021, 10,358 decisions of interrogators and investigators on the initiation of criminal proceedings were canceled, and in 2022 – 7,809 decisions (Statistical data on the main indicators of the activities of the Prosecutor's Office of the Russian Federation for January-December 2022 // URL: https://epp.genproc.gov.ru/web/gprf/activity/statistics/office/result (date of application: 04/22/2024)). Despite the fact that the number of cancelled decisions on the initiation of criminal proceedings has decreased by 24.6%, the total number of illegal and unjustified decisions remains significant.

At the same time, a fairly wide range of powers of the prosecutor to supervise the execution of laws by bodies of inquiry at the stage of initiation of a criminal case is unreasonably limited by departmental acts. Thus, in the order of the Prosecutor General of the Russian Federation dated 10/23/2023 No. 730 "On the organization of prosecutorial supervision over the execution of laws when receiving, registering and resolving reports of crimes in the bodies of inquiry and preliminary investigation" (paragraph 1.11), prosecutors are obliged to ensure a comprehensive, complete and objective verification of the legality and validity of all decisions on refusal to initiate criminal proceedings cases within no later than 5 days from the date of receipt of materials for checking reports of crimes. However, according to the Code of Criminal Procedure of the Russian Federation (Part 6 of Article 148), such a limitation on the period of verification and cancellation of the decision to refuse to initiate criminal proceedings applies only to decisions of investigative bodies, and verification and cancellation by the prosecutor of illegal or unjustified decisions of interrogators are not limited in time.

In practice, prosecutors identify the largest number of violations of laws precisely at the stage of initiating a criminal case. Thus, according to statistical data from the Prosecutor General's Office of the Russian Federation, when receiving, registering and reviewing reports of a crime by prosecutors in Russia, 3,464,543 violations of the law were detected in 2021, and 3,417,399 violations in 2022, which is 67% and 65.5%, respectively, of the total number of violations of laws detected by prosecutors in pre–trial proceedings (Statistical data on the main performance indicators of the Prosecutor's Office of the Russian Federation for January-December 2022 // URL: https://epp.genproc.gov.ru/web/gprf/activity/statistics/office/result (date of application: 04/22/2024)).

Thus, based on the above, we can see that any reduction or restriction of the prosecutor's powers may negatively affect the state of legality in the reception, registration and resolution of reports of crimes by the bodies of inquiry. Therefore, it is necessary to bring all departmental acts into exact compliance with the Code of Criminal Procedure of the Russian Federation.

In accordance with the law, when investigating criminal cases by bodies of inquiry, prosecutors aim to ensure proper supervision of the comprehensiveness and completeness of the proceedings, including by removing the inquirer from further investigation if he committed violations of the CPC of the Russian Federation that could affect the outcome of the case (paragraph 10, part 2, Article 37 of the CPC of the Russian Federation).

Prosecutors also have the right to give written instructions to interrogators on the direction of the investigation and the conduct of procedural actions (paragraph 4, part 2 of Article 37 of the Code of Criminal Procedure of the Russian Federation). Such instructions, first of all, should be aimed at obtaining and consolidating evidence in the case, establishing traces of a crime. At the same time, unmotivated instructions containing a list of obvious investigative actions that follow from the powers of the investigator, without taking into account the specific circumstances of the case, should not be allowed. This approach seems to ensure the most objective investigation of the crime committed.

These instructions of the prosecutor, along with other powers established by Part 2 of Article 37 of the Code of Criminal Procedure of the Russian Federation, allow not only to expose a person for committing a crime, but also to participate procedurally in the management of the inquiry, ensuring the legality and validity of decisions and procedural actions.

In addition, an equally important area of activity of the prosecutor during the investigation is the supervision of such a sensitive area of legal relations as the observance of human and civil rights and freedoms. Thus, the prosecutor is obliged to release by his decision everyone who has been detained in violation of the law, held without lawful grounds in institutions that carry out coercive measures (Part 2 of Article 10 of the Code of Criminal Procedure of the Russian Federation, paragraph 2 of Article 33 of Federal Law No. 2202-1 of 17.01.1992 "On the Prosecutor's Office of the Russian Federation"). The Code of Criminal Procedure of the Russian Federation (paragraph 8, part 2 of Article 37) gives the prosecutor the authority to participate in court sessions when considering issues of choosing a preventive measure in the form of detention, extending the period of detention or canceling or changing this preventive measure, and the order of the Prosecutor General of the Russian Federation dated 01/19/2022 No. 11 obliges the prosecutor to participate in each case consideration by the court of the petitions of the interrogators. These regulations are aimed at achieving the goals of criminal proceedings (Article 6 of the Code of Criminal Procedure of the Russian Federation), as well as protecting the principle of personal inviolability.

We believe that the prosecutor's arsenal of powers in relation to the bodies of inquiry seems traditional, appropriate and justified. However, modern trends aimed at limiting the powers of the prosecutor in the conduct of an inquiry are confusing the activities of interrogators, prolonging procedural deadlines and narrowing the competence of the prosecutor as a future public prosecutor responsible for the legality and validity of the charge.

In particular, in 2015, Federal Law No. 380-FZ of 12/14/2015 amended Articles 226 and 226.8 of the Code of Criminal Procedure of the Russian Federation, which gave the investigator the right to appeal the prosecutor's decision to return a criminal case filed with an indictment or indictment.

Thus, according to Part 4 of Article 226 of the Code of Criminal Procedure of the Russian Federation, the prosecutor's decision to return the criminal case to the inquirer for additional inquiry or to resubmit the indictment may be appealed by the inquirer with the consent of the head of the body of inquiry to a higher prosecutor within 48 hours from the moment the inquirer receives the criminal case. The higher prosecutor, within three days from the date of receipt of the relevant materials, decides to refuse to satisfy the request of the inquirer or to cancel the decision of the lower prosecutor. The appeal procedure itself suspends the execution of the prosecutor's decision to return the criminal case to the investigator, including the instructions given by the prosecutor.

Essentially similar rules are provided for appealing the prosecutor's decision to return the criminal case to the inquirer in the case of an inquiry in an abbreviated form.

These changes discredit the decisions made by the prosecutor and create disagreements in the legal position of the prosecution. In addition, such disunity within the prosecuting authority may eventually negatively affect the quality of public confidence in the law enforcement system as a whole.

It seems to us that the development of the prosecutor's supervision over the procedural activities of the bodies of inquiry should be aimed not at limiting the scope of the prosecutor's powers, but at optimizing his activities, especially in the light of the development of digital technologies.

In recent years, the process of widespread digitalization has affected all branches of the application of law, including the criminal procedure field. The most urgent problems for the criminal process were ensuring access to justice in the context of the development of digital technologies ^{[9, 11]}, the use of video conferencing ^[5], the introduction of electronic criminal proceedings ^{[3, 4, 21]}, conducting investigative actions in a new digital reality ^[7], the possibility of using artificial intelligence in decision-making ^[15] and much more.

Digitalization has not bypassed the activities of prosecutors. Thus, by Order of the Prosecutor General of the Russian Federation No. 627 dated 09/14/2017 (ed. dated 07/20/2023), the Concept of digital Transformation of prosecutor's offices and organizations until 2025 was approved. In accordance with this act, by 2025, the prosecutor's office will implement the introduction of electronic document management in order to switch to paperless paperwork; ensure the centralization of data processing by the prosecutor's office; create an analytical database platform for the prosecutor's office using standards for processing big data arrays in cloud and other systems, artificial intelligence technologies, etc. The described innovations will provide prosecutors in the near future with the opportunity to quickly and more effectively exercise their powers, including supervision of the investigation.

Thus, the modern development of the prosecutor's supervision over the procedural activities of the bodies of inquiry should not be associated with amendments to the criminal procedure legislation limiting the scope of the prosecutor's powers, which contradicts historical traditions and reduces the level of legality in the conduct of an inquiry, but with increasing the effectiveness of the prosecutor's activities in the context of digitalization.

So, the conducted study of the prosecutor's supervision of the procedural activities of the bodies of inquiry allowed us to formulate the following main conclusions aimed at improving the prosecutor's activities in this direction and increasing the legality and validity of actions and decisions of the bodies of inquiry:

1. The wide scope of powers available to the prosecutor in relation to the bodies of inquiry is seen as traditional, expedient and justified. Modern trends aimed at limiting the powers of the prosecutor in the conduct of an inquiry are destructive, since they cause confusion in the activities of interrogators and prosecutors, as well as delay procedural deadlines.

2. Any reduction or limitation of the powers of the prosecutor may negatively affect the state of legality, including during the conduct of an inquiry by the bodies. It is necessary to exclude such phenomena in departmental acts, including orders of the Prosecutor General of the Russian Federation, and bring them into exact compliance with the Code of Criminal Procedure of the Russian Federation.

3. The development of the prosecutor's supervision over the procedural activities of the bodies of inquiry should not be associated with amendments to the criminal procedure legislation limiting the scope of the prosecutor's powers, but with increasing the effectiveness of the prosecutor's activities in the context of digitalization, including through the introduction of electronic document management, the transition to electronic supervisory proceedings and the use of artificial intelligence technologies.