Legislative regulation of activity of the investigator at the initial stage of pre-judicial investigation

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Legislative regulation of activity of the investigator at the initial stage of pre-judicial investigation

V. D. Bernaz,

doctor of law, professor, head of the department of criminal law, process and criminalistics of Institute of national and international law of the International humanities university

У статті розглянуто алгоритм дій слідчого на початковому етапі досудового розслідування за КПК України.

Ключові слова: злочин, КПК України, алгоритм дій слідчого, досудове розслідування.

The algorithm of the investigator at the initial stage of pre-trial investigation of the CPC of Ukraine is considered in the article.

Keywords: crime, algorithm of activity of the investigator, pre-judicial investigation.

Activities for investigation of crimes, in communication come into force of a new CPC of Ukraine, stay in the conditions of essential reforming that demands development of new standard programs of the organization of work. Changes which brought in the Criminal procedural code of Ukraine, redistribution and emergence of new spheres of procedural influence on activity of the investigator (activation of opportunities of the defender on the criminal proceedings, new functions of the prosecutor, appearance of the new subject of criminal trial - the investigator, new procedure began investigations, etc.), lead to emergence of a number of organizational and tactical questions answers on which the science yet didn't give.

So, the new Criminal procedural code of Ukraine cardinally changed an order of the initial stage of investigation of criminal offenses that, in turn, demands reconsideration of the organization of activity of the investigator, development of the corresponding tactical receptions. In research of organizational problems of the initial stage of investigation the active role belongs to criminalistics. In this regard it is so important to reveal and investigate these problems arising in practice.

To criminal legal proceedings liquidation of institute of initiation of legal proceedings is essentially new. So, according to Art. 214 of a new CPC of Ukraine „the investigator, the prosecutor urgently, but no later than 24 hours after filing of application, messages on a perfect criminal offense ... is obliged to bring the relevant data in the Unified register the pre-judicial of investigations and to begin investigation” [1, p. 112].

That these changes will put effective legal barriers on a way to abuses of officials at permission of statements and messages on crimes which with introduction of a new CPC, will be deprived of opportunity to abuse illegal refusals in initiation of criminal cases is positive.

The real changes increased also, the potential of the investigator at the initial stage of prejudicial investigation, having given the chance to it to react more quickly investigative funds for information on a crime.

At the same time, how we noted earlier, in connection with an innovation there are also questions, in particular, and whether the sufficient bases for such important and fatal concerning certain persons of introduction of sheets in the Unified register and the beginnings pre-judicial investigation, etc. are necessary? First of all it is necessary to emphasize that anybody and never will exempt the investigator from establishment of the sufficient bases for pre-judicial investigation after all they are a guarantee from unreasonable application of the state coercion. However and in the Provision on an order maintaining the Unified register ... we don't find data on such bases in the Art of 214 CPC of Ukraine. About sufficient data which indicate existence of signs of a crime, there is no mention also, and in practice, for example, false statements can take place, messages on crimes and the investigator is formally obliged to bring them in the Unified register and to begin investigation that will lead not only to vain dispersion of forces and means, but also to illegal application of criminal procedural prosecution. Any more without speaking about statements and the message on commission of criminal offenses in the sphere of economy, finance, in the presence of signs about the group, organized, transnational crimes, etc. which always need considerable test operational search activity how then to be, and after all both such statements and messages are subject to entering into the Unified register. For the sake of justice it should be noted that the new CPC nevertheless provides to the investigator, the prosecutor 24 hours for entering of data into the Unified register about a criminal offense and the immediate beginning of pre-judicial investigation [2, p. 36]. However this time it can appear not enough.

What changes in the organization of the beginning of pre-judicial investigation as a whole and separately on each of types of crimes? On the one hand, in connection with reduction of time this is given to the investigator; to the prosecutor on making decision on the beginning of investigation and the instruction urgently to begin investigation arise a number of problems:

possibility of the investigator for such short time decreases to make the reasonable decision on the investigation beginning;

the risk of the investigator increases to begin investigation without the sufficient bases on that, and in the presence in statements of obviously in veracious data concerning particular persons - to their illegal prosecution;

in connection with the imperative instruction that the investigator who will make pre-judicial investigation is defined by his chief, during survey of a scene possibilities of the investigator to carry out other initial investigative actions on hot scents are limited;

as the beginning of investigation is possible only after entering of data into the Unified register - such situation also doesn't give the chance to the investigator to work with investigative means, for example, at detection of sources of proof during survey of a scene of the Unified register remote from the location. Earlier the investigator could take out the resolution on initiation of legal proceedings and hold a pretrial investigation, and now it needs to return in a place of a dislocation and to execute Art. 214 instructions;

in connection with increase in number of unauthorized access to electronic bases this around the world and in our country, there is a real potential possibility of information leakage from the Unified register about the beginning of prosecution of the particular person for the criminal offenses made by it (bribes, assignment of state ownership by abuse of official position, fraud, etc.) Lack of regulation of this situation not only complicates, and in some cases and at all doesn't give the chance to provide a necessary mode of privacy when carrying out, as a rule, obligatory operational search actions, combinations, operations prior to public carrying out the investigative actions directed on secret documenting of a crime, and if necessary - a capture in the act for the purpose of exposure of criminals and providing judicial prospect. Especially sharply this problem will be shown on crimes against national security, if necessary to develop the organized forms of crime and etc. Therefore in the station 214 CPC of Ukraine the investigator needs to provide opportunity independently to make the decision on the beginning of pre-judicial investigation with the subsequent entering of such data into the Unified register, and also - the right by concrete types of crimes, to prolong terms of preparation of materials for introduction them in the Unified register and the beginnings of public prosecution for perfective separate aspects of crimes.

On the other hand, as „Each tactical reception, any criminalistic recommendation have to conform strictly to requirements of the criminal procedure law” [3, p. 24] it is necessary to look for to the station of 214 CPC of Ukraine and new potential opportunities for the investigator. In particular, in our opinion, at the beginning of investigation it has options of more active application of such tactical receptions, as: efficiency, suddenness, etc. when carrying out investigative (search), secret investigative (search) actions. But opportunity to begin immediate investigation demands from the investigator of new skills and abilities truly to define the investigation directions, urgently to prepare and carry out not only separate investigative actions and that is very important - complexes of investigative actions and the operational search actions directed on accumulation of initial potential on criminal proceedings for the purpose of the prevention of counteraction to investigation and exposure of persons, made criminal offenses, at an initial stage of investigation.

In this regard criminalistic, operational search ensuring application of new norms of a CPC is required. So, as in the law time for check of the arrived materials practically isn't provided, the checked data aren't required at the solution of a question on the beginning of pre-judicial investigation, the criminalistics is faced by a problem of development of tactics of activity of the investigator in new conditions. The criminalistic science needs to develop new algorithms in activities of the investigator for ensuring validity of the beginning of investigation when obtaining primary information on a perfect criminal offense; besides improvement, and if necessary and drawing up new typical programs of activity at the initial stage of carrying out investigative actions including by separate types of crimes is required. There was a need for development of investigative tactics of carrying out secret investigative actions at all stages of investigation.

At establishment from various sources of signs of criminal offenses the investigator first of all has to act, at the initial stage, according to the algorithms recommended by criminalistic science. „Algorithm of the decision ... tasks, the program of commission of actions in the sequence providing under certain conditions permission of raised ... of a question” [4, p. 15].

The action programs need to be developed according to investigative situations of this period of the investigation, aimed at activity, efficiency and productivity on truth establishment. However the changed order of the beginning of investigation sets the new applied tasks which permission can't be postponed, namely to answer a question how to work to the investigator according to new requirements of a CPC of Ukraine, in particular, in situations of filing of application, messages on a criminal offense or after independent identification by it from any source of circumstances which can testify to commission of a criminal offense for criminalistic science? Due to above stated it is necessary for this stage on the basis of new requirements of a CPC of Ukraine to develop as the general, and the most rational algorithm of activity of the investigator, aimed at providing effective investigation by separate types of criminal offenses who would allow to pave the way for effective application of tactics of carrying out separate investigative actions, „for adoption of tactical decisions: definitions of carrying out timeliness of investigative actions, assessment of need of carrying out the appropriate measures and the risk connected with it tactically ..[5, p. 170].

We will consider the general algorithm of activity of officials according to the Art of 214 CPC of Ukraine stated in item 1 to occasions: the statement, the message and identification by the investigator, the prosecutor of data on circumstances testifying to commission of a criminal offense.

For all situations it is necessary to carry to the general recommendations, first of all, that that the law not so strictly demands the reasonable beginning of pre-judicial investigation, in particular, according to item 1 of the Art of 214 CPC of Ukraine enough data about „circumstances which can testify to a perfect criminal offense” and the investigator, the prosecutor „is obliged to bring the relevant data in the Unified register of pre-judicial investigation and to begin investigation”. That is even probabilistic information is the basis for pre-judicial investigation. It means that the law doesn't demand more authentic data on a perfect criminal offense to start investigation. The dream of the investigator of possibility of urgent, expeditious carrying out investigative actions after establishment of data on a criminal offense partially came true. On the one hand - such situation gives the chance to solve more effectively crimes on „hot scents”. On the other hand, responsibility for ensuring validity of the beginning of investigation is conferred on the investigator practically without pre-investigation check of materials. For the sake of justice nevertheless it should be noted that the CPC in urgent cases resolves before entering into the Unified register of data on a perfect criminal offense to perform scene inspection. But only in urgent cases, and about verification of arrived information it is told nothing. Nevertheless scene survey in this situation is the most important means of such check and it is possible to carry out it in urgent cases (probability of destruction, loss of traces on an event place, possibility of detection of traces of suspects with the subsequent their prosecution, etc.) that inherently always give the chance to the investigator to estimate survey as urgent investigative action and to carry out it immediately. Possibly, in the future of the practical for more reasonable beginning of investigation will go on the way of obligatory carrying out this investigative action.

However if there are authentic data that there was a crime, it is necessary to enter this information into the Unified register, urgently to make the investigation plan, if necessary to create investigative task force, and maybe a little, to distribute duties and using an element of surprise to begin carrying out a complex of investigative actions and operational search actions.

In case of the address to a call center of law enforcement agency of the applicant (the Art. of 60 CPC of Ukraine) whether victim (Art. of 55 CPC of Ukraine) with the statement for commission of a criminal offense or obtaining the message on such event, the official is obliged to accept immediately such statement, or to make the protocol on adoption of the statement on a criminal offense in which it is necessary to state information in volume according to the requirement of h. 5 Art. 214. Thus, as before, the applicant (victim) is warned about the criminal liability provided by Art 383 of CC of Ukraine. Besides, to the victim, according to item 2 of the Art of 55 CPC of Ukraine, the instruction about procedural laws and duties has to be still handed over.

The statement, the message if in them are available data which can testify to a perfect criminal offense, the person on duty on law enforcement agency registers in the Magazine of registration of statements and messages on criminal offenses. In the absence of such signs are registered in information Log-book.

As about need of check of the validity of statements, messages, other information on a criminal offense, sufficiency of bases for entering in the Unified register of pre-judicial investigation of data on a criminal offense in article of 214 CPC of Ukraine it isn't mentioned, it is supposed that 24 hours which the legislator allocates for the investigator, to the prosecutor on the solution of a question on the beginning of pre-judicial investigation, are time if necessary can be used for obtaining sufficient data which can testify to a perfect criminal offense.

In the presence in the statement of data for a possible criminal offense, the general recommendations of the organization of activity of the investigator are consolidated to the following: as a rule, to the place of an event the investigative task force which performs scene inspection goes, interrogates eyewitnesses, victims, responsible persons, owners and other persons, carries out a complex of operational search actions: on establishment of eyewitnesses of an event, pursues the suspect on „hot scents”, if necessary focuses law enforcement agencies on signs of the persons who have committed a crime, on signs of the stolen property and etc. Other operational search events necessary in this situation are held. At confirmation of the fact of a perfect criminal offense the senior of investigative operational group reports on results of survey by the official report on the chief of investigative division. The chief of investigative division, having considered the presented materials and having convinced available sufficient signs of a crime, takes measures to continuation of its immediate investigation: appoints the investigator who will make pre-judicial investigation, and makes to it oral recommendations in fact future permission of materials with signs of a criminal offense. The investigator after identification of circumstances which can testify to a perfect criminal offense, brings the corresponding data in the Unified register and starts investigation, and also immediately in writing sends the message to the prosecutor about the beginning of pre-judicial investigation.

At least two situations are thus possible. The first - when materials contain data on crimes of private charge (the Art. of 477 CPC of Ukraine). Then according to requirements of item 1 of the Art of 477 CPC of Ukraine it is possible to begin criminal production only on the basis of the statement of the victim. To the investigator if the statement isn't present, whether is subject to find out this face from the victim will submit such application. If such application is submitted the official is obliged to accept immediately it or to make the protocol on adoption of the statement on a criminal offense in which it is necessary to state information in volume according to the requirement of h. 5 St 214. The applicant is warned about the criminal liability provided by Art 383 of CC of Ukraine, and also according to item 2 of the Art of 55 CPC of Ukraine, the instruction about procedural laws and duties has to be handed over to it. Data on a criminal offense are brought in the Unified register and immediately pre-judicial investigation begins. Further the investigator urgently according to requirements of item 5 of the Art of 214 CPC of Ukraine in writing sends the message to the prosecutor about the beginning of pre-judicial investigation. If such application isn't submitted - in our opinion, nevertheless it is necessary to bring data in the Unified register and to take out the resolution on refusal in carrying out pre-judicial investigation, being guided by requirements of the Art of 477 CPC of Ukraine. However in a new CPC it was necessary to state also situations when for private charge pre-judicial investigation is made irrespective of the fact of giving injured statements as it was provided in Art 27 of an old CPC of Ukraine.

he second situation - when on the found signs of a criminal offense the appointed investigator brings the relevant data in the Unified register of pre-judicial investigations, immediately begins pre-judicial investigation and urgently according to requirements of the item of 5 St of 214 CPC of Ukraine in writing sends the message to the prosecutor about the beginning of pre-judicial investigation. The further algorithm of activity of the investigator is determined according to CPC requirements, recommendations of a technique of investigation of this type of a crime and depending on the developed investigative situation by concrete criminal proceedings, recommendations of criminalistics and the theory of operational search activity.

In case data on a criminal offense are established directly by the official of law enforcement agency, it has to make the developed official report according to item 5 of the Art of 214 CPC of Ukraine, put the available materials testifying to the occurred event with signs of a criminal offense. In need of use of results of the held operational search events, the investigator interacting with the quick representative makes the coordinated plan of realization of operational materials. If the criminal offense is univalent, the person it made isn't known, the coordinated plan investigative actions is formed and operational search actions the investigator immediately starts together with the quick representative his realization.

There is no opportunity to consider organizational problems of the beginning of pre-judicial investigation in more detail, but from the above follows that changes in the criminal procedure legislation influence algorithm of activity of the investigator and according to it timely, new scientific researches as general bases of the organization of tactics of the initial stage of pre-judicial investigation, and algorithm of activity of the investigator by separate types of crimes are necessary.

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