Art. 165 Code of Criminal Procedure has undergone a few, but significant changes. The procedure for obtaining permission for employees of investigative bodies and bodies of inquiry to use certain procedural methods is very difficult, especially if it is judicial. And it is precisely these difficulties that need to be addressed in order to accurately understand this procedure and its consequences.
What are investigative actions?
Law enforcement agencies have a large number of powers that allow them to capture criminals and prevent socially dangerous acts. However, one must always remember that all actions are not performed independently; some of them require certain preliminary procedures. Such moments should include investigative actions that are simply necessary for the investigation.
What is attributed to the very law-permitted methods of law enforcement? Investigative actions are a set of methods that help investigative authorities and interrogators collect and verify all evidence in a case. This is the main means of establishing the truth, as it is regulated by the code and other various federal laws.
The meaning of the actions in question
Art. 165 of the Code of Criminal Procedure of the Russian Federation in the new edition says that investigative actions, although not all, require the consent of the court. This is the first moment that will determine the significance of such methods. Each procedural decision and action carries with it legal consequences and affects the course of the criminal case, and, accordingly, should be monitored, which happens due to this norm.
The second equally important aspect is truth. The combination of funds that the law provides to law enforcement officers helps to achieve the best result in the fight against crime. The more effective the investigative actions, the faster and more correctly they are carried out, the more chances to get accurate and accurate evidence, as well as confirm their truthfulness.
Types of investigative actions
Classifications of methods and methods used by investigators are quite diverse. The criteria can serve as subjects, the degree of measures that are applied, the procedures for their implementation, the composition of the participants in these actions, and many others. However, the law establishes specific types of tools to help gather and verify evidence. Even Art. 165 of the Code of Criminal Procedure of the Russian Federation pays attention to some of them, taking into account its specificity.
So, the criminal procedure law records the following actions: search and seizure, interrogation, examination, investigative experiment. In addition, examinations, examinations, identification, verification of testimonies, confrontation, seizure of mail, recording and wiretapping are carried out. However, not each of the listed funds requires a court decision as a basis for its application.
Art. 165 of the Code of Criminal Procedure of the Russian Federation in part one says that a court decision is mandatory in the event of a search and seizure, seizure of property, wiretapping and communication between subscribers, as well as during the inspection. The remaining investigative steps proposed above can be carried out only on the basis of a decision adopted by the investigator. Also, a court decision is needed to exhume the corpse, if necessary for the investigation.
Conditions of investigation
Before the head of the investigation department or inquiry appeals to the court with a request to carry out certain actions important for the investigation, it is necessary to make sure that a number of conditions are met, which, in principle, make it possible to apply any methods of collecting and verifying evidence. There are several requirements that must be met before the further procedure of appeal to the chairman.
The first requirement is the availability of a filed case. If this did not happen, then there can be no talk of any of the above investigative actions. The second condition is the existence of a sanction. Usually she comes from the prosecutor. The third is the subject, that is, the person who has the authority to do so must take action. And one more condition - the procedural requirements must be met in accordance with the Code of Criminal Procedure of the Russian Federation, otherwise they will ultimately have no power.
Request for investigation
The issue of applying to the court for issuing permission to use certain means of obtaining and verifying evidence is established by Art. 165 Code of Criminal Procedure in the new edition. With comments on this rule, one can fully illuminate the issue under consideration, without resorting to resorting to other sources of law. So, what is the procedure for filing an application for investigative actions?
The investigator or the inquirer goes to court. It is important that either with the consent of the head of the investigation department, or with the consent of the prosecutor, respectively. The employees of the authorities do not have independence in this matter, control by the authorities is mandatory. On each action, including appeal to the court, a decision is made and recorded in the case file.
In some cases, it is possible to challenge the actions of the investigator by the prosecutor. However, if there were no refusals from the heads of the authorities and the court accepted the petition, then the transition to the next stage is carried out, namely, the direct consideration of the application in court and the adoption of a specific decision.
The stage of consideration of the application by the court
The first thing you should pay attention to is the composition of the court. Art. 30 of the Code of Criminal Procedure of the Russian Federation in the latest edition establishes several options that provide for the possibility of investigating the case in a different composition. This may be a collegial decision-making, or it may be sole, depending on the authority and various other similar conditions.
If we talk about the issue of investigative actions, the law defines a clear rule. Art. 165 of the Code of Criminal Procedure of the Russian Federation states that these applications must be considered individually by one judge, moreover, it is the district court or the military, if the specifics of the case so require. There can be no other option for making a decision, since the criminal procedure law is categorical in this aspect.
As for the participants in the judicial review of the case, the CPC also clearly defines the circle of persons present at it. The court in its sole composition, investigator or inquiry officer, depending on who sent the application, and, accordingly, the prosecutor, who most often exercises a supervisory function in this matter. It is also possible the participation of the defendant in accordance with the Civil Code.
Decision-making
The consideration of the application is carried out in accordance with Art. 165 Code of Criminal Procedure. With comments on this article, you can determine the order of how the decision is made and what it, in principle, can be. The presiding judge relies solely on the facts and the need to apply certain investigative actions.
The judge considers the filed application in the presence of all participants in the proceedings. If necessary, he can listen to explanations and a number of arguments that confirm the need for any measures. As a result of the meeting, the presiding judge shall make a decision that implies either the satisfaction of the application or the refusal of it.
Appeal of a court decision
Any decision of a judge, whether it is a sentence, order or ruling, in accordance with the law, may be appealed to a higher authority. Whatever question the presiding judge considers, the outcome can be changed if interested parties so wish. The appellate court also allows the review of applications filed by the investigator or interrogating officer.
The rule of appeal is a generalization under Art. 165 Code of Criminal Procedure. So, those interested in reviewing a court decision can apply to a higher court, that is, in a regional court, so that a decision on the application of investigative actions or, on the contrary, refusal of them is reviewed. This can be done by both investigators and interrogators, and the prosecutor. In some cases, it may be an interested civil defendant.
An exception under part 5 of art. 165 Code of Criminal Procedure
The law clearly defines the list of actions that allow the implementation solely by court decision. However, there are cases where the rule may be violated, because due to the urgency of the actions, their importance and necessity, it may take time for the judicial consideration of this issue to be too valuable.
Part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation says that during the seizure, search, seizure of property and other cases, the absence of a court decision is allowed. If such actions are urgent and there is simply no time for procedural methods, then the investigator or the inquirer simply makes a decision on the implementation of the permitted methods without contacting the judicial authority, and the presiding judge and prosecutor are informed about this in 24 hours.
However, there is a reservation to this exception. Comments on the article suggest that some investigative actions, namely exhumation, seizure of state-important documents, records of telephone conversations, as well as the application of a coercive measure in the form of placement in a medical facility, do not allow independent use, are not considered urgent and should always be accompanied by a court decision .