Problematic aspects of urgent initial investigative actions

Fedorchenko Nikita Dmitrievich Independent researcher 350072, Russia, Kransodar region, Krasnodar, Karyakina str., 22, sq. 204 nik.fedorchenko.96@mail.ru Kovalenko Svetlana Aleksandrovna Graduate student; Faculty of Law; Kuban State Agrarian University 350072, Russia, Kransodar region, Krasnodar, Krasnaya str., 176 svetakovalenko23@mail.ru

Vlez'ko Dmitrii Aleksandrovich PhD in Law Associate Professor; Department of Criminology; Kuban State Agrarian University 350072, Russia, Krasnodar, Kalinina str., 13, office 027 projects16@yandex.ru

At the initial stage of the investigation of a criminal case, it is especially important to make an immediate and timely decision on the conduct of urgent initial investigative actions. It is impossible not to note their importance in the investigation. Thanks to such investigative actions, traces of a crime and evidence are immediately detected and recorded. V.D. Zelensky and S.A. Kuemzhieva note that the algorithm for initial urgent investigative actions is developed by the methodology for investigating certain types of crimes in relation to typical investigative situations of the initial stage of the investigation ^{[1; p.22]}. The content of the initial stage of the investigation is the production of urgent investigative and other actions ^{[2; p.363]}.

It is important to note that urgent investigative actions may be necessary at any stage of the investigation. Such actions are often attributed solely to the initial stage of the investigation. However, this does not seem to be true. Indeed, in most cases, in practice, the urgency of conducting an investigative action arises with the initiation of a criminal case. With all this, urgency may arise at any other stage of the investigation. This may be due to the type of crime, the emergence of new circumstances in a particular situation.

Urgent investigative actions have a certain uniqueness property. This lies primarily in the fact that such actions are often carried out with the threat of concealing the traces of a crime, which means that the results of repeated such investigative actions lose their evidentiary value.

It is worth noting that the degree of study of this topic is quite high. Thus, numerous scientific articles, monographs, and textbooks have been written on urgent initial investigative actions. For example, Professor V.D. Zelensky in his works paid great attention to the role of the investigator during the initial investigative actions. The Soviet criminologist R.S. Belkin in his writings considered the main signs of urgent investigative actions. The issue of errors in the production of these actions was studied by T.V. Barsukova.

In scientific doctrine, the issue of urgent initial investigative actions is debatable. For example, the issue of legal regulation and definition of the concept of urgent initial investigative actions remains problematic. Criminologists such as A.A. Karaeva, N.P. Yablokov, and V.I. Kuklin studied this issue. This problem arose due to the fact that the legislator did not define what should be understood by urgent initial investigative actions. The law provides in paragraph 19 of Article 5 of the Criminal Procedure Code of the Russian Federation only the definition of urgent investigative actions, which also causes scientists to criticize. Thus, V.D. Zelensky and V.K. Spruzhevnikov pointed out that the main drawback of the legally established definition is the mention that they should be conducted only in cases where the investigator is unable to take the case to his own production ^{[3; p. 19]}. T.V. Barsukova agrees with them in this regard, saying: "This belittles the role of the investigator as the procedural head of the investigation" ^{[4; p. 81]}.

In addition, speaking about the issue of the imperfection of the legal concept, V.D. Zelensky noted that the legislator's indication that urgent investigative actions are only actions carried out by the body of inquiry after the initiation of a criminal case is rather unreasonable, because this interpretation excludes from such actions the inspection of the scene, which is often in practice for various reasons. It is conducted by the body of inquiry without the participation of the investigator ^{[3; p. 19]}. In addition, according to Part 2 of Article 176 of the Criminal Procedure Code of the Russian Federation, an inspection of the scene of the incident, as well as documents ^{[5; p. 216]} and various objects can be carried out even before a criminal case is initiated.

This raises the question of the relationship between the concepts of "urgent" and "initial" investigative actions. There are also various opinions about this problem in the scientific literature. Thus, V.V. Vandyshev, V.B. Malinin and O.P. Alexandrova believe that the lack of a common understanding in science of the essence of initial and urgent investigative actions is due, among other things, to the imperfection of criminal procedure legislation ^{[6; p. 63]}.

According to some scientists, these are synonymous concepts and this is explained by the fact that they pursue the same goals and have a number of common features. This opinion can be found in the works of A.B.Sokolov, D.S.Merlakov, Ya.M.Mazunin. A number of other authors argue that it is extremely wrong to identify these concepts, since although they have common features, they are independent categories of investigative actions. This was the opinion of, for example, V.V. Vandyshev, V.B. Malinin, O.P. Alexandrova. In addition, there is an opinion in science that the concept of "initial" is much broader, and "urgent" actions are narrower, and are covered by the first concept. For example, E.B. Anisimov believes that: "the initial investigative actions include, firstly, urgent investigative actions; secondly, non-urgent ones, which make it possible to clarify the events under investigation and help develop versions on the main issues of evidence" ^{[7; p.212]}.

In our opinion, it is unreasonable to consider these concepts as identical. If we turn to the dictionary of S.I. Ozhegov, then the definition of "urgent" can be characterized as an urgent, rapid action, and "initial" as an action that was at the very beginning ^[8]. It is important to note that the initial actions are carried out at the very beginning of the investigation. Urgent actions, as we indicated earlier, can be carried out at any stage of the investigation. It should be mentioned that the range of subjects who carry out such actions also has its own characteristics. Thus, the specificity of urgent investigative actions is that a special range of subjects is involved in their production, which are provided for in Article 157 of the Criminal Procedure Code of the Russian Federation.

However, the same investigative action can be both urgent and initial at the same time. This happens when urgent investigative actions are carried out at the initial stage of the investigation of a criminal case.

In addition, the difference in these concepts lies in their different legal nature. N.P. Yablokov believes that the concept of initial investigative actions is criminalistic, while urgent investigative actions are both criminalistic and criminal procedural ^[9].

The production of urgent investigative actions is by its nature a procedural activity. However, due to its specifics, this procedural institution is closely related to operational investigative activities. It is no coincidence that the legislator delegated the duty to carry out urgent investigative actions to other bodies of inquiry. After all, this is a manifestation of the systematization of work, as well as the interaction between the participants in the investigation to achieve the greatest effectiveness in solving crimes. The specificity of urgent investigative actions is that their production involves a wide range of subjects for whom the investigation of criminal cases, for which the preliminary investigation is mandatory, is an exception to the rules of investigation, and for individual officials -activities that are not directly related to their functions ^{[10; p.18]}.

In theory, there is a problem of determining the list of urgent investigative actions. Such scientists as A.Y. Fedyukina, P.V. Vdovtsev, E.A. Maltsev made a special contribution to the study and disclosure of this problem. In the current Code of Criminal Procedure, the legislator has not established the types of urgent investigative actions. Whereas in the previous Code of Criminal Procedure of the RSFSR in 1960, urgent investigative actions included: inspection, search, seizure, examination, interrogation of suspects, victims and witnesses. Note that in the Criminal Procedure Code of the Russian Federation, urgent investigative actions are considered as an independent institution, when, according to the Criminal Procedure Code of the RSFSR, the production of such actions was one of the forms of inquiry.

On the one hand, a law enforcement officer, in the person of an investigator or an inquirer, does not have a clear understanding of which investigative actions can be considered urgent. However, some criminologists advocate the absence of a clear, exhaustive list of urgent investigative actions in the law. V.D. Zelensky and V.K. Spruzhevnikov believe that in criminal cases of crimes under Article 228 of the Criminal Code, the appointment and conduct of a forensic chemical examination is necessary already at the initial stage of the investigation, as well as the identification of the person who committed the robbery. and the detainee according to the description of the police officers ^{[3; p. 22]}. So, we can say that the absence of types of urgent investigative actions in the law gives some freedom in choosing one or another action depending on the current situation. Analyzing the above, we come to the conclusion that an urgent investigative action is any investigative action that is carried out by the body of inquiry after the initiation of a criminal case, in which a preliminary investigation is required. However, an exception may be actions that, in accordance with the law, are performed only by an investigator or by a court decision.

In addition, the Code of Criminal Procedure lacks a definition of initial investigative actions and a list of such actions. We assume that the legislator proceeded from the fact that initial investigative actions are more of a criminalistic category and the investigator has the freedom to choose a specific investigative action at the initial stage. In addition, the same action can be carried out both at the beginning of the investigation and at other stages of it. Then the question arises as to whether it will be initial or subsequent. For example, the interrogation of a witness may be conducted with the initiation of a case and be considered initial, while the re-interrogation of a witness acquires the status of a subsequent investigative action.

The issue of guarantees for the protection of individual rights during urgent investigative actions is of scientific and practical interest. Thus, the theoretical basis on this problem was formed by the scientific works of such scientists as O.V. Levchenko, D.E. Kuhn, A.M. Lantukh. The production of urgent investigative actions is characterized by its speed, which often leads to procedural violations in practice. Consequently, the issue of protecting individual rights is becoming the most urgent. Undoubtedly, strengthening the protection of individual rights creates additional difficulties in the investigation of crimes, however, it should be remembered that this is a prerequisite for compliance with the procedural form ^{[10; p. 20]}.

An example of a violation of citizens' rights may be a search of a home without the permission of the court or the persons living in it, as well as at night. It is known that, as a general rule, the legislator prohibits carrying out investigative actions at night. However, it provides for an exception – these are urgent cases. This is a sign of the procedural exclusion of urgent investigative actions. Conducting investigative actions at night should be used in exceptional cases where there is a high probability that loss or falsification of evidence will occur if the time is delayed. However, if an exceptional case is not recognized by the court, the evidence obtained during such investigative actions will be recognized as illegally obtained.

So, in our opinion, in order to ensure the protection of citizens' rights, it is necessary: to inform the person about the possession of rights and explain these rights; to involve witnesses who are able to control the course of investigative actions; to ensure the participation of a defender at an early stage of the investigation.

Summing up, we come to the conclusion that urgent initial investigative actions are very important for the entire investigation, because in many ways the timely collection of evidentiary information depends on them. Such actions act as a means of implementing the immediate start of an investigation. In order to improve the criminal procedure legislation and increase the effectiveness of the practice of conducting the actions under investigation, we propose to amend paragraph 19 of Article 5 of the Code of Criminal Procedure in the following wording: "Urgent investigative actions are investigative actions carried out by the body of inquiry after the initiation of a criminal case, in which the preliminary investigation is mandatory, as well as by the investigator, the inquirer establishing that the criminal case is not under investigation by them, in order to detect and record traces of the crime, as well as evidence requiring immediate consolidation, seizure and investigation. In exceptional cases, urgent investigative actions may be carried out even before a criminal case is initiated by a preliminary investigation body or an official who is not authorized to conduct an inquiry or preliminary investigation, when checking a crime report in case of obvious lack of investigation." We also see the need to add an investigator to Part 2 of Article 157 of the Criminal Procedure Code of the Russian Federation, as an official who can carry out urgent investigative actions. In addition, in our opinion, it is advisable to return the norm to the Criminal Procedure Code of the Russian Federation, which will provide a list of urgent investigative actions.

Thus, when writing this work, general (observation; generalization; comparison; description), general scientific (analysis; synthesis; logical method), private scientific (historical method; sociological method) and special (comparative legal method; formal legal) research methods were used. Thus, when studying the relationship between the concepts of "urgent" and "initial" investigative actions, such research methods as observation, comparison, description, analysis, and the logical method were used. When studying the forensic literature, the main research methods were generalization, comparative law, formal law, or dogmatic. The historical research method was used in the study of norms in the Criminal Procedure Code of the RSFSR.