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and objective investigation of the criminal case in accordance with the requirements of the law and the rules of jurisdiction, to return the criminal case to the investigator and the inquirer for further investigation, etc.); authority on the final criminalization of criminal charges of a person, as well as the conclusion with him pre-trial cooperation agreement and to terminate the criminal prosecution.
In this model of the prosecutor's supervision it is possible by law to partly transfer the powers of the court at the pretrial stages of criminal proceedings to the prosecutor.
This is the model of prosecutorial supervision that allows to timely and effectively detect, correct and prevent errors in the pre-trial investigation stage of criminal proceedings.
§3. Institutional control in the mechanism of elimination of errors
Speaking of the ‘institutional control’, we must bear in mind its two important components: procedural control, regulated by the provisions of the Code of Criminal Procedure of the RF, and other institutional control, regulated by departmental directives and including the organizational and administrative management of the activities of the investigator414. This other (organizational and administrative) institutional control largely defines the direction in criminal procedure that law enforcers should take. By its power it is superior to the procedural control (procedural administration) and even ‘prevails’ over it.
Such institutionality can be criticized, especially when it is expressed in the so called
‘manual control’. But this is a reality with which is to (and should) be considered, since it is often enough the institutional control that allows timely and qualitatively achieving the purpose of criminal proceedings.
The modern institutional control, in fact, is the total control of the investigating authorities’ leaders, especially at the level of the federation, over investigators of lower level (cities, districts and equivalent levels) and the heads of the investigating authorities of low level. There are schemes of ‘zonal’, ‘subject’, ‘random’, etc. institutional control in addition to the procedural supervision. Investigators from cities and region areas through special closed channels of the Internet connection ‘send’ to the computer desktop of the heads of investigative bodies of the Federation entity draft resolutions on refusal to initiate a criminal case, initiation of a criminal case, election of ‘strict’ measures of restraint to the suspect, the accused (detention, house arrest, bail), on indictment, extension of the preliminary investigation, the extension of the accused's detention and
414 The academia also use the established term ‘institutional procedural control’ including all aspects of the work of the investigative agency head, the investigation unit chief. See: Criminal Procedural Law (criminal proceedings): textbook / ed. prof. E.K. Kutuyev. St.Pb: Publishing house of St.Pb. Univ. of the MIA of Russia, OOO ‘R–COPY’, 2016. p.236–240.
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house arrest, dismissal of the criminal case (criminal prosecution), suspension of criminal proceedings, etc.; draft indictments. The heads of the investigating authorities at the regional level regularly conduct video meetings via closed internet links with the investigators of the territories, invite them the regional center for hearings, reports, meetings, seminars, etc.; send to local units various management and guidance circulars (for example, to oblige the investigators in cases of fatal accidents to file motions with the court on the detention of suspects, the accused, etc.). The question of the procedural independence of the investigator in the operations of the present time institutional control mechanism looks sometimes illusory.
In the opinion of leaders of investigative bodies at the regional level, it is clear that only such organizational and legal mechanism that operates in a mode of total institutional control is presently able to avoid the ‘tyranny and chaos’ in the investigative work, effectively predict, detect, correct and prevent investigating errors.
In the course of research, we have come to the conclusion about the need to find a reasonable compromise between the procedural independence of the investigator and the institutional control.
In the system mechanism of control and supervision activities to detect, correct and prevent errors at investigation pre-trial stages of criminal proceedings the model of institutional control, in our view, includes a number of features: an objective necessity and historical conditioning of institutional control; heteropolar nature of institutional control and the inclusion of elements of mentoring and training; ‘pretrial’ nature of institutional control and the prosecutorial supervision over institutional control; procedural and administrative components of institutional control.
It is with consideration of the above features that the model of institutional control, conceptually designed and presented herein, should work effectively to perform tasks of the identification, correction and prevention of investigative errors.
The objective necessity and historical conditionality of institutional control.
In the modern period institutional control gains an entirely new and highly significant character in the context of the nature of the detection, correction and prevention of errors. This has been facilitated by the reforms associated with the redistribution of the procedural powers of the prosecutor to the head of the investigative body.
Institutional control is used to refer to the activity of the head of the investigative body or the head of a higher investigative body for ensuring the most complete, comprehensive and objective preliminary investigation of criminal cases.
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Institutional control is legitimately used to refer to the activities of the head of the body of inquiry, the chief of the division of inquiry of supervising subordinate interrogators in carrying out the inquiry in criminal cases.
In spite of the similarity of the prosecutor’s powers in the investigation with the procedural control, we support the idea that with respect to investigators, as well as with regard to the inquirers, the public prosecutor carries out the prosecutor's supervision in the light of the procedural supervision of the inquiry.
For convenience hereinafter, referring to questions of institutional control over the investigation, we will use the term the control subject to refer to the head of an investigative body, not all officials indicated above.
The history of the institute of institutional control dates back to the early 60s, when, in accordance with Article 127–1 of the Code of Criminal Procedure of the RSFSR, the head of the investigation department got the responsibility for monitoring the timely actions of investigators on the solution and prevention of crimes and a number of significant procedural powers. In accordance with Art. 34 of the Code of Criminal Procedure of the RSFSR, the head of the investigation department was used to refer to the chief of the investigative committee, department, unit, division, a group of internal affairs agencies, the Federal Security Service agencies, the Federal Tax Police Service departmetns and his deputies, acting within their competence.
The appearance in the Soviet criminal trial procedural of the figure of ‘the head of the investigation department’ increased the importance of internal control. As noted earlier by I.F. Krylov and A.I. Bastrykin, ‘with the advent of the procedural figure of the head of the investigation department the emphasis of the prosecutorial supervision shifted from measures ensuring an optimal choice of direction and course of the investigation to the measures of mostly law enforcement and right restoring nature. The extensive procedural powers of the chief of the investigation department allow him to control the activities of the investigator. In practice, the prosecutor performs his supervisory powers in relation to investigators of MIA through the head of the investigation department’415.
Strengthening and development of institutional control due to the following situation which has developed in the investigative agencies of Russia:
a)problems with the quality of investigating personnel: the lack of educational and professional level, lack of the necessary experience in investigative work, life experience, etc.;
b)the complex technology of the process of investigation of criminal cases today: its volume character, special procedures in the collection and verification of evidence obtained as a
415 Krylov I.F., Bastrykin A.I. The search, inquiry, investigation: study guide. L., 1984. p.197.
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result of operational-search activities, complex criminal law qualification of criminalized in the light of the modern criminal policy socially dangerous acts in the sphere of high technology, business, tax system, etc.;
c) receipt of a significant number of complaints from interested parties in accordance with Article 123 of the Criminal Procedure Code of the Russian Federation;
g) high standard requirements of the court and the prosecutor in the exercise of judicial review and prosecutorial supervision.
Therefore, the institute of institutional control is historically preconditioned and objectively necessary today for the precise and strict implementation of the purpose of the criminal proceedings.
Heteropolar character of institutional control and the inclusion of elements of personnel mentoring and training
Speaking on the heteropolar nature of institutional control, we mean the mechanism of its operation ‘at opposite poles’ – low level investigative units (city level, district and their equivalents) and regional, national level investigative units. In continuation of the above, it is worth looking at these two different ‘poles’ of institutional control.
For investigators of low level investigative units – ‘double’ institutional control: through the heads of these low level investigative units and through, sometimes, ‘total’ institutional control of the investigative body leaders (procedural control units416) of the Federation level and equivalent investigative body. For these investigators, the normative theoretical construction
‘procedural independence of the investigator’ acts on the condition of the specifics of ‘total’ institutional control.
For investigators of investigative units of regional and equivalent levels, as well as the investigative units of the central office investigative agencies, 'total' institutional control is virtually absent: the legal regime of the procedural independence of the investigator is in action and the usual legal regime has organizational and procedural mechanisms of institutional control.
Considering involvement in institutional control of elements of personnel mentoring and training, the first component of the above ‘heteropolarity’, in fact, is a departmental practice oriented ‘school of investigation’, when after graduating from a law school a real investigator has internship in actual investigation activities, the first real investigative training under the guidance of experienced mentors. At the low level of investigative, the nomenclature of cases under investigation, taking into account the procedural rules of jurisdiction, should include (and includes) criminal cases, conventionally referred to as ‘simple’, ‘quiet’ in order to minimize the risks of
416 If the structure of certified personnel of the investigative unit is analyzed, for example, at the Federation subject level, investigators comprise about 60% thereof, with ‘procedural controllers’40%.
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investigative errors. The post titles of investigators should also correspond (and as a general rule correspond at the current moment) to the low level of the investigative unit: the junior investigator, the investigator, the senior investigator.
The second component of ‘bipolar’ institutional control is a specialized investigative apparatus of relevant investigative agencies. Investigators-professionals of these investigative units, taking into account the procedural rules of jurisdiction, should investigate (and investigate) criminal cases conditionally called ‘complex’417 and ‘resonant’418 as well as criminal cases withdrawn by a reasoned decision of the heads of the superior investigative bodies from the production of investigators of low level investigative structures which were too difficult for them due to the lack of professionalism and capabilities (operational, expert, technical, etc.). This approach helps to minimize the risk of investigative errors. The names of the investigatorsprofessional positions should be (and as a general rule are at the moment) appropriate: the investigator for particularly important cases, the senior investigator for particularly important cases. It is a permissible option that these investigators are not necessarily deployed geographically in the Federation capitals, the Federal District, in the equivalents of investigative bodies and the central office of the investigative agencies: they can be deployed (including a postment) on the basis of the investigative city units, district and equivalent to them while performing the mission of the mentor investigator for investigators of low level investigative units.
V components outlined above comprising the ‘heteropolarity’ of institutional control there is a place for positive effects in the professional development of investigators: investigation career necessarily begins with low level investigative units and with professional development, though in the case of grave professional errors the career can go descending – stepdown for professional errors and disciplinary offenses; such change of professional activities (in most cases, it, nevertheless, is a question of professional and career development) allows investigators to promptly move away from such well-known in the psychology of professional activity negative phenomena as professional deformation and professional ‘burnout’, which, again, promotes minimization of investigative errors.
417‘Complex’ criminal cases is a conditional and to some extent judgmental term: they may include criminal cases of grave and especially grave crimes, especially against the life and health of the individual, multi–element and group crimes; crimes committed in non–obvious conditions; crimes where the investigation takes a protracted nature, especially if a preventive restrictive measure of detention is selected.
418‘High–profile’ criminal cases is also a conditional and to some extent judgmental term: they may include ‘loud’
(from the point of view of society reaction, media coverage) crimes against so–called ‘media’ persons (politicians, public figures, etc.), as well as crimes committed by these persons; crimes against children, war veterans and other persons with the so–called ‘silent interest’.
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‘Pretrial’ nature of institutional control and prosecutorial supervision thereof.
The Code of Criminal Procedure in sec. 18 part 1. Art. 5 referring to the head of the investigative body states: "the official in charge of the relevant investigative unit, as well as his deputy."
In the detection, correction and prevention of errors in the criminal trial, institutional control has a purpose, which can be described in the following thesis: ‘Properly implemented institutional control should allow to quickly solve crimes, to fully, comprehensively and objectively investigate criminal cases, to predict, detect, correct, prevent errors in the pretrial stages of the criminal proceedings”. Researchers of institutional (procedural) control basically adhere to this attitude to this type of criminal procedure activity419. In this sense, institutional control has ‘pretrial’ character.
At the outset it must be emphasized that giving the departmental supervisor certain procedural powers, the legislator did not aspire to create an additional, along with the prosecutor, supervisory authority.
At the dawn of institutional control H.S. Tadjiyev rightly believed that ‘the role and goal of the chief of investigations in criminal proceedings is to properly organize the investigative work led by the division, procedurally, that is, using the provided for in the Criminal Procedure Law forms and methods to lead the investigation of criminal cases, to ensure its high quality, completeness, comprehensiveness and objectivity’420. In other words, institutional control is not a substitute for prosecutor supervision.
Technically the mechanism of institutional control is denoted by the powers referred to, especially, in art. 39 of the Code of Criminal Procedure of the RF. These powers correspond to the powers of the prosecutor supervising the legality of the activities of ‘departmental supervisors’ (art. 37 of the Code of Criminal Procedure of the RF). In this sense, institutional control has supervised character.
Procedural and administrative components of institutional control.
The procedural component of institutional control is expressed in the following powers possessed by the head of the investigative body under the law (Article 39 of the Code of Criminal
419Himicheva O.V. Conceptual bases of procedural control and supervision on pretrial stages of criminal proceedings: a monograph. M., 2004; Muratova N.G. judicial control in criminal proceedings: questions of theory, legislation and practice. Dis for Dr. Jurid. Sciences. Kazan, 2004; Tabakov S.A. Departmental Procedure control over the activities of investigators and investigators of the Interior. Dis for Cand. Jurid. Sciences. Omsk Acad. Ministry of Internal Affairs of the Russian Federation, Omsk. 2009; Popova T.Y. Criminal procedure status of the head of the investigative body. M.: Jurlitinform 2013.
Tadjiev H.S. Public Prosecutions and institutional control over the investigation of crimes. Tashkent, 1985. pp.71.
420Tadjiev H.S. Public Prosecutions and institutional control over the investigation of crimes. Tashkent, 1985. pp. 71.
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Procedure): assigns the production of the preliminary investigation to the investigator or several investigators; withdraws the criminal case from the investigator and transfers it to another investigator with the obligatory indication of the reason for such transfer; checks the materials on the report of a crime or a criminal case with the subordinate investigators; cancels illegal or unjustified decisions of their investigators; approves the investigator to file with a court a petition to elect, to renew, cancel or change the preventive measure of restraint or on a procedural action that is allowed on the basis of a judicial decision; is authorized by law to personally interrogate the suspect, the accused without taking criminal cases to proceedings when considering giving consent to the investigator to file with the courts the above indicated motions; declares by his decision evidence available in the case inadmissible; allows rejections, stated to the investigator, as well as his self-rejection; removes an investigator from further investigation if he violates of the Code of Criminal Procedure of the RF; in accordance with the requirements of the Code of Criminal Procedure of the RF, cancels illegal and groundless decisions of the subordinate head of investigatory body; extends the term of the preliminary investigation; approves the investigator's decision to terminate criminal proceedings; approves the investigator, conducting the preliminary investigation of the criminal case, to appeal in accordance with the law the prosecutor's decision with his written instructions to return the criminal case to the investigator for furhter investigation, change of the charges or qualification of the actions of the accused, or redraft the indictment and resolve the identified deficiencies; returns the criminal case to the investigator with his written instructions for furhter investigation, etc.
The head of the investigative body considers the prosecutor demands on the abolition of unlawful or unjustified decisions of the investigator and the elimination of other violations of the federal law committed during the preliminary investigation, as well as the written objections of the investigator to the specified requirements; informs the prosecutor on the abolition of the unjustified decision of the investigator and the elimination of the violations or disagreement with the prosecutor.
The head of the investigative body at any time of the investigation of the criminal case may give the investigator guidance on the direction of the investigation, certain investigative acts, bringing the person in as the accused, on the election in respect to the suspect, the accused of a preventive measure, the qualifications of the offense and the amount of charges; personally consider the reports of crimes and participate in the verification of reports of crimes.
In modern investigative practice, in a significant number of cases the head of the investigating body gives instructions to subordinate investigators verbally and more often – in the form of advice, recommendation. Quite often in the early pages of materials of criminal cases (in special notices, reports, applications, cover letters, etc.) there are detailed resolutions of the
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investigating authorities’ leaders, which are inherently written instructions to investigators.
Analysis of these resolutions (‘take up the case and make a plan of operational investigative activities’, ‘detain the person suspected of committing the crime’, ‘repeat the careful examination of the scene ...’, etc.) shows that they largely define in general terms the direction of the crime resolution and the direction of criminal investigation, help avoid many investigative errors, especially for new inexperienced investigators.
The instructions of the head of the investigative body are binding on the investigator, but may be appealed to the head of the superior investigative body. Appeal of instructions shall not suspend their execution, except when instructions regarding termination of the criminal case and transfer it to another investigator, bring the person as an accused, qualification of the crime, charges, preventive measure, investigative actions which are allowed only by court decision, and the case referral to the court or its termination. This investigator presents a superior head of the investigative body with the criminal case file and the written objections to the instructions of the head of the investigative body. And this is the main point of the procedural investigator independence – construction largely theoretical, as investigators of low level, in practice, never officially enter into a dispute with his departmental head, and for the investigators-professional a formal confrontation with the departmental leadership rarely happen. But, nevertheless, 88.9% surveyed judges, 61.1% prosecutors, 92.3% investigators, 70.1% of defense lawyers believe that it is necessary to keep the institute of procedural independence of the investigator unchanged421. Therefore, revealing the structural elements of our proposed model of ‘heteropolar’ institutional control, we may not rule out the potential possibility for the investigator to be procedurally independent.
The procedural dispute between the investigator and the head of the investigative body in the above mentioned cases is resolved by the head of the superior investigative body (Part 3 of Article 39 of the Code of Criminal Procedure) according to the rule: if the investigator is right, the superior cancels the instructions of the subordinate head of the investigative division; if the head of the investigative body is right, the head of the superior investigative body withdraws the case from the investigator and passes it to another investigator ‘not to break’ the inner conviction of the investigator initially investigating the case.
The study of the practice has shown that the effectiveness of institutional control in the context of detection, correction and prevention of errors (with the departmental supervisors having sufficient spectrum power) is low (compared to the prosecutor supervision).
421 Appendix №44.
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The statistics on the activity of the subjects of the control and surveillance activities to identify investigative errors shows the following.
In Krasnoyarsk Territory in 2013, the prosecutor returned for further investigation to investigators of units SID IC Russia in the territory 92 criminal cases; in 2014 – 93. In 2013, the Court under Article 237 of the Criminal Procedure Code of the Russian Federation returned to the prosecutor 23 criminal cases investigated by the investigators of the IC, in 2014 – 25 criminal cases. But leaders of the investigating authorities of the IC system in the territory in 2013 returned for further investigation to their subordinate investigators 7 criminal cases, in 2014 – only 2 criminal cases. Whereas the high activity of the prosecutors to some extent can be explained by a certain ‘special’ relation to criminal cases investigated by investigators of the IC (some notorious
‘conflict of interests and agencies’), the fairly high rate of judicial activity in the context of art. 237 of the Code of Criminal Procedure is clearly not comparable with the activity of the leaders of the investigating authorities and has no logical explanation, except one: sometimes departmental inspectors are guided by corporate interests, unwillingness, inability to ‘consume’ the given to them departmental procedural ‘power’ to identify, correct and prevent investigative errors.
In confirmation of the underuse of departmental and procedural powers by the heads of the investigating authorities we present the following statistics for Krasnoyarsk territory: in 2013 on 83 terminated criminal cases of IC investigators prosecutors canceled as illegal and unjustified 42 decisions (50.6%); in 2014, on 73 terminated criminal cases they canceled 44 decisions (60.27%). The rest of them (which is less than half of the regulations on termination of criminal proceedings) were reversed by the heads of investigative bodies, including some of them after the judicial decisions in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation on the recognition of decisions on the termination of criminal proceedings illegal.
In 65 criminal cases investigated by investigators of the IC in 2013 prosecutors reversed 44 decisions about their suspension (67.69%), in 2014 in 38 suspended cases they canceled 31 decisions (81.58%). For the rest, a much smaller number of criminal cases, the decision was reversed by the heads of investigative bodies, including some of them after the determination of judicial decisions in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation on the recognition of decisions on the termination of criminal proceedings illegal.
In 2013 the heads of investigative units of the SID IC of Russia in Krasnoyarsk territory reviewed 5795 various complaints and appeals from citizens, in 2014 – 6252 complaints. But under Article 124 of the Criminal Procedure Code they satisfied 0 complaints in 2013, in 2014 – 2 complaints422.
422 Appendix №45.
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Thus, our analysis shows that the impact of institutional procedural control is lower than the efficiency of the prosecutor's supervision, which indicates the presence of certain problems.
These issues concern, in particular, the administrative component of institutional control (of course, taking into account the procedural powers) considered hereafter.
The creation of the investigation group (and change of its composition) is one of the powers of the head of the investigative body (part 1 p. 1 Article 39 of the Code of Criminal Procedure). It is he who is responsible for the formation of the team for the investigation of relevant cases, psychologically compatible professional investigators. It is no coincidence, therefore, that the investigative team leadership is usually reserved by the head for himself, which certainly has a positive effect on the course of the criminal investigation.
This is a reasonable decision of the investigating agencies' heads to include young, novice investigators in investigatory-operative groups to enhance their professional skills when working together on a specific complex case under the supervision of more experienced colleaguesinvestigators.
Therefore timely and proper creation of the head of the investigative unit of inquiry (or investigation–operative) group for solving and investigation of the crime will reduce the risk of errors in criminal cases being investigated by such group. The harmonious operation of investigatory-operative group is of particular importance in the so called ‘night duty’ when a positive result is given by the work on ‘hot clues’, when it is necessary to carry out urgent (initial) investigation, other procedural and operational search actions.
In this context it seems logical production that the Investigative Committee of Russia raises the issue of education within its own operational structure and expert services. Whereas the expert service is currently partially formed in the investigative agency (the departments of criminology have forensic experts, polygraph examiners and other professionals), there are no operational units– the investigators of IC still interact when conducting the detection and investigation of crimes with operational officers of the Interior Ministry, FSS and other agencies.
In the administrative component of institutional control, the important component is its resource support. It is primarily a question of staffing departmental supervision. As a rule, the leaders of the investigating authorities and their deputies are experienced investigators. In practice, there is a situation: in the most complex cases, as well as for a number of other reasons (help novice investigators, demanding nature of investigation on the case, etc.), the heads of investigative units are involved in the conduct of their subordinate investigator investigative and other procedural actions or carry them from the beginning to the end of themselves, taking or not taking up the case (by the way, these same actions are performed by and investigators-forensic experts, as a rule, the best trained and skilled professionals of the investigative body). The head of