Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 15/09/2021 Aceptado el 22/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 71 (2021), 554-565
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Historical overlook on the birth and
formation of the institute of departmental
procedural control in predictional
criminal court proceedings in Russia
DOI: https://doi.org/10.46398/cuestpol.3971.32
Dmitriy A. Ivanov *
Kristina A. Moskovtseva **
Olga V. Khimicheva ***
Vasily Dz. Potapov ****
Elmir N. Alimamedov *****
Abstract
The authors submit to a detailed analysis the historical
milestones of the origin and formation of the institution of
departmental procedural control in criminal proceedings in
Russia. Taking the generally accepted classication as the basis
for constructing a preliminary investigation and highlighting seven periods
of the formation of the institution of departmental procedural control, the
principles for establishing a particular institutional model of a concrete
historical period are reected. As the main method in the process of writing
this article, the general systemic method of cognition was used, which made
it possible to comprehensively consider and analyze the process of origin
and formation of the institution of departmental procedural control in pre-
trial criminal proceedings in Russia. In addition, the authors argue that
the institution of departmental procedural control of judicial control in the
Russian Federation is quite young and its mechanisms need in-depth study.
It is concluded that, through the analysis of statistical data, law enforcement
practice, as well as the opinions and developments of scientists-processes,
made it possible to identify the optimal ways to solve existing problems and
directions for improving criminal procedure legislation.
* Moscow State Institute of International Relations (University) of the Ministry of Foreign Aairs of the
Russian Federation (MGIMO-University), Moscow, Russia. ORCID ID: https://orcid.org/0000-0002-
2023-3771
** Moscow University of the Ministry of Internal Aairs of Russia named by V.Ya. Kikot, Moscow, Russia.
ORCID ID: https://orcid.org/0000-0003-0007-0351
*** K.G. Razumovsky Moscow State University of Technologies and Management, Moscow, Russia. ORCID
ID: https://orcid.org/0000-0003-2295-2064
**** Pitirim Sorokin Syktyvkar State University (SyktSU), Syktyvkar, Russia. ORCID ID: https://orcid.
org/0000-0002-3150-088X
***** Finance University under the Government of the Russian Federation, Department of Legal Regulation
of Economic Activities, Moscow, Russia. ORCID ID: https://orcid.org/0000-0003-2477-3166
555
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
Keywords: criminal proceedings; procedural control; head of the
investigative body; preliminary investigation; legal-
institutional history.
Visión histórica sobre el nacimiento y la formación
del instituto de control procesal departamental en los
procedimientos judiciales penales de predicción en Rusia
Resumen
Los autores someten a un análisis detallado los hitos históricos del origen
y la formación de la institución de control procesal departamental en los
procedimientos penales en Rusia. Tomando la clasicación generalmente
aceptada como base para construir una investigación preliminar y
destacando siete períodos de la formación de la institución de control
procesal departamental, se reejan los principios para establecer un modelo
institucional particular de un período histórico concreto. Como método
principal en el proceso de redacción de este artículo, se utilizaron el método
sistémico general de cognición, que permitió considerar exhaustivamente y
analizar el proceso de origen y formación de la institución de control procesal
departamental en los procedimientos penales previos al juicio en Rusia.
Además, los autores argumentan que la institución del control procesal
departamental del control judicial en la Federación de Rusia es bastante
joven y sus mecanismos necesitan un estudio profundo. Se concluye que, un
análisis de los datos estadísticos, la práctica de aplicación de la ley, así como
las opiniones y desarrollos de los cientícos-procesalistas, permitieron
identicar las formas óptimas de resolver los problemas existentes y las
direcciones para mejorar la legislación procesal penal.
Palabras clave: proceso penal; control procesal; jefe del órgano de
investigación; investigación preliminar; historia
jurídico-institucional.
Introduction
The issues of organizing the preliminary investigation in the Russian
Federation have not lost their relevance for many years. The attention of
scientists and practitioners is drawn to the comprehension of the logic of
its development. It is obvious that the formation of the Russian criminal
process is directly related to the formation of the Russian state and is
developing in parallel with it.
556
Dmitriy A. Ivanov, Kristina A. Moskovtseva, Olga V. Khimicheva, Vasily Dz. Potapov y Elmir
N. Alimamedov
Historical overlook on the birth and formation of the institute of departmental procedural control
in predictional criminal court proceedings in Russia
1. Materials and methods
The method of a systematic approach made it possible to consider the
mechanism of departmental procedural control over the procedural activity
of an investigator at the stages of initiating a criminal and preliminary
investigation, as well as to study the interaction of the head of an investigative
body and an investigator at these stages of pre-trial criminal proceedings.
The historical and legal method made it possible to study the genesis
and legal nature of departmental procedural control over the activities of
an investigator in pre-trial criminal proceedings.
The use of methods of analysis and synthesis made it possible to identify
existing problems in law enforcement practice on the implementation of
departmental procedural control in the course of pre-trial proceedings in
criminal cases.
The formal-logical method made it possible to analyze the procedural
independence of the investigator in the course of pre-trial proceedings in
criminal cases and put forward proposals for improving legislation in this
area.
The use of the formal legal method made it possible to characterize
the relationship between prosecutorial supervision, judicial control and
departmental procedural control over the activities of an investigator in
pre-trial criminal proceedings.
As a result of the application of this methodology, new knowledge was
obtained about the mechanism of departmental procedural control over the
procedural activities of an investigator in pre-trial proceedings in criminal
cases, as well as trends in improving legislation in order to optimize the
work of investigative units at the stages of initiation of a criminal case and
preliminary investigation.
2. Results analysis
The study of archival data shows that some surviving and extant sources
say that the state power of the period of Kievan Rus actively inuenced the
administration of justice, resolved judicial and procedural issues that were
previously regulated by generic customs. Along with this, the court, as an
organ of state power exercising not only judicial, but also administrative
functions, existed in two forms: as a “court of the prince himself” and as a
“court of judges appointed by the prince”.
The judiciary of the period of Kievan Rus can be described as
uncontrolled. The court itself was an active participant in the search process:
557
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
it participated in the search for evidence, investigated the circumstances of
the case. With such a combination of the functions of the prosecution, the
resolution of the case on the merits and the search for evidence there can be
no talk of monitoring the actions and decisions of the persons carrying out
the proceedings. Moreover, all administrative and judicial functions were
concentrated “in one hand” (Kolokolov, 2009).
The procedural legislation of Russia before the judicial reform of 1860
resembled an “incoherent” collection of Peter’s decrees, the Code of Tsar
Alexei Mikhailovich, various orders and regulations. For the rst time in
the history of Russia, in the Decree of June 8, 1960, “The Institution of
Judicial Investigators”, the separation of the investigation function and
its assignment to special ocials – forensic investigators – was xed. This
served as the historical starting point for the formation and development of
the institution of preliminary investigation.
In the pre-reform period until 1860, one of the laws of the Code of Laws
of the Russian Empire “On Criminal Proceedings” was in force in the eld
of criminal proceedings, which provided for two types of investigation:
preliminary and formal. The preliminary investigation was aimed at
establishing the fact of the crime, identifying the perpetrators, and the
formal one envisaged the scope of all subsequent actions directed against
the known guilty person in order to establish the degree of his guilt. Both
types of investigation were carried out by the police.
The reform of 1860 was the predecessor of the Peasant Reform of 1861
and was developed in the context of work on the “bills” of the reform of
1861, during the discussion of which there was a clear need to reform the
police and separate investigative functions from it (Tarasov, 2001).
In the course of further reforms and with the adoption of a number of
laws dated November 20, 1864, “Establishment of Judicial Regulations”,
“Charter of Criminal Procedure”, the powers of judicial investigators are
expanded. According to the Charter, the investigator was obliged to inform
with complete impartiality all circumstances incriminating and acquitting
the accused. Art. 263 of the same Charter contains a provision that a
forensic investigator must inform the prosecutor about any investigation
that he initiated not on the basis of a police report or a complaint from
a private prosecutor. Control over the activities of the investigator by the
prosecutor and the court is actively developing.
It would seem that the legislator of that time very carefully approached
the issue of organizing the judicial investigation bodies, paying great
attention to the powers of investigators, trying as much as possible to
preserve their procedural independence, and also delimited the limits of
control by the prosecutor’s oce and the court. In contrast to this opinion,
A. G. Mamontov speaks, believing that “despite the entire progressive
558
Dmitriy A. Ivanov, Kristina A. Moskovtseva, Olga V. Khimicheva, Vasily Dz. Potapov y Elmir
N. Alimamedov
Historical overlook on the birth and formation of the institute of departmental procedural control
in predictional criminal court proceedings in Russia
complex of transformations, there are a number of signicant shortcomings
that do not allow the apparatus of the judicial investigation to fully function
positively.
This fact is inuenced, rst of all, by the existing absence of a normative
separation of formal and preliminary investigation, which, in turn,
predicted the same lack of a clear separation between investigation and
inquiry” (Mamontov, 1984, p. 86).
The investigator himself had to carry out not only a preliminary
investigation, but also an inquiry, and often a search. Also, according to
the Charter, the investigator could not start an investigation without
information about the person who committed the crime.
V. P. Danevsky in his work “Our preliminary investigation, its
shortcomings and reforms” expresses the idea that the preliminary
investigation according to the Judicial Statutes of Emperor Alexander II
is perhaps the weakest part of the criminal process (Danevsky, 1985, p. 3)
and explains this by the fact that the judicial investigation was given an
accusatory status, control by the prosecutor’s oce and the court, which,
as a rule, led to the unlimited termination of criminal cases by judicial
investigators.
Also, relying on statistical data and reviews of contemporary jurors from
the Kursk province, Moscow, and Kharkov, he came to the conclusion that
in view of the incompleteness of the preliminary investigation and its one-
sided direction, the number of acquittals increased. This has led to the fact
that the judicial investigation has become the most “refractory” structure.
In 1869, a special commission was created to consider problematic issues
of the functioning of the apparatus of judicial investigators. In conclusion,
she ruled that one of the reasons for the abnormally unsatisfactory work
of investigators is the lack of a competently structured police search for
the perpetrators, which, by its nature, should closely interact with the
preliminary investigation bodies at the stage of pre-trial proceedings
(Azarov, 2012, p. 112)
Nevertheless, the reform gave its results, the main of which we consider
the establishment of the bodies of the judicial investigation. But the
institution of judicial investigation existed for a relatively short period of
time and was gradually lost with the onset of 1917 and the coming to power
of the Bolsheviks. Gradually, the judicial investigation passed from the
judiciary to the executive branch.
So, in clause 3 of the Decree of the Council of People’s Commissars of
the RSFSR “On Court No. 1” dated December 24, 1917, it was said that the
preliminary investigation was assigned to local judges alone until the entire
procedure of legal proceedings was transformed.
559
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
Clause 4 of the Decree of the NCJ of the RSFSR of December 15, 1917:
“On the measures of imprisonment of detainees and on the establishment
of commissions of inquiry in prisons to check the correctness and legality
of arrest” contains a provision on the creation of temporary commissions
of inquiry in prisons (of three people) to check the legality and validity of
arrests, by agreement of the Petrograd Soviet with the district Soviets of
Workers and Soldiers Deputies.
Published on December 19, 1917, the NCJ Instruction “On the
revolutionary tribunal, its composition, the cases subject to its jurisdiction,
the penalties imposed by it and the procedure for conducting its sessions”
and the Decree of the Council of People’s Commissars of the RSFSR of
January 28, 1918 “On the Revolutionary Press Tribunal” only consolidated
the existing regulation. Thus, in order to make a decision on the arrest,
search, seizure and release of those arrested, it was necessary to assemble a
collegium of three persons. A sole decision could be made only in a case that
could not be delayed, but at the same time, such a measure was approved by
the commission within 12 hours. Thus, this indicates that there is no need
for court control over the legality and justication of the application of the
above measures.
The Regulation on the People’s Court of the RSFSR, approved by the
Decree of the All-Russian Central Executive Committee of October 21, 1920,
provided for the establishment of a new body – People’s Investigators, under
the jurisdiction of the Council of People’s Judges. People’s investigators
were elected by the Provincial Executive Committees of the Soviets and
acted within their area.
Investigators were also appointed for the most important cases, which
were under the jurisdiction of the departments of justice and the People’s
Commissariat of Justice. According to Art. 32 of the Regulations, the
people’s investigator could start the preliminary investigation on the basis of
applications from citizens, according to the police, ocials and institutions,
by order of the People’s Court and at his own discretion.
The investigator’s demands were obligatory both for the police and for
other bodies and institutions. There is a growing role of investigative bodies
and an increase in their procedural independence.
However, already in May 1922, with the adoption of the Regulations on
Prosecutor’s Supervision, approved by the All-Russian Central Executive
Committee, supervision over the activities of the investigative bodies was
entrusted to the Prosecutor’s Oce.
According to Art. 121 of the Code of Criminal Procedure of 1922,
supervision over the production of the preliminary investigation is carried
out by the prosecutor, who also has the right to familiarize himself with
the acts of the preliminary investigation and give instructions to the
560
Dmitriy A. Ivanov, Kristina A. Moskovtseva, Olga V. Khimicheva, Vasily Dz. Potapov y Elmir
N. Alimamedov
Historical overlook on the birth and formation of the institute of departmental procedural control
in predictional criminal court proceedings in Russia
investigator, which are binding. At the same time, the prosecutor’s oce
for this period was not the only controlling body for the investigator. The
latter also remained subordinate to the court. So, according to Art. 216 of
the Code of Criminal Procedure of 1922, all interested persons, as well as
parties, witnesses, experts, translators, attesting witnesses, guarantors,
pledgers for the accused could bring complaints about the actions of the
investigator that violated their rights. Such complaints are considered by
the court at which the investigator is a member.
During this period, a scientic discussion arises among scientists-
proceduralists, associated with the choice of the optimal model for the
development of the investigative apparatus and with the consolidation of
the role of the prosecutor in it. There was a lot of controversy about the
latter. So, A. Y. Vyshinsky supported the complete removal of control and
supervisory powers from the court and the assignment of such powers to
the prosecutor. In opposition to this point of view, the rst chairman of
the Supreme Court of the RSFSR P. Y. Knock. He believed that the control
and supervisory functions should be fully retained for the court (Tsvetkov,
2015).
In September 1928, new changes took place. The resolution of the
All-Russian Central Executive Committee and the Council of People’s
Commissars of the RSFSR “On Amendments to the Regulations on the
Judicial System of the RSFSR” secured the transfer of the investigative
apparatus to the full subordination of the prosecutor’s oce.
The essence of such an investigation was that the prosecutor began
to direct the investigation, giving binding instructions, authorizing many
actions and decisions of the investigator, exercising supervision over him. A
paradoxical situation was created: the investigator was largely the executor
of the will of the prosecutor during the preliminary investigation, and the
prosecutor practically began to exercise supervision over himself (Manova,
2015).
Y. A. Tsvetkov claims that such a prosecutor’s model for carrying out a
preliminary investigation existed until 1938. Such a tendency:
To the destruction of the prosecutor’s monopoly on the preliminary
investigation was laid in its very conceptual basis, which did not recognize the
independent legal nature of the investigation. In the future, such a concept will
present us with the fact that every department that has at least some kind of
police powers will seek to “pinch o” a “piece” of investigative functions for itself
(Tsvetkov, 2015, p. 33).
Subsequently, in connection with the formation of an investigative
unit based on the NKVD of the USSR, which, in turn, was reorganized
into an investigative part of the main department of state security and an
investigative part of the main economic department, this model was lost.
561
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
It is worth noting that such a complete concentration in one hand of all
the investigative work had negative aspects, for example, in the form of an
overload of investigators.
But this situation, on the other hand, aroused a growing interest in the
bodies of inquiry. In this regard, in 1940-1950, the police created their
own investigative bodies, which were no longer directly subordinate to the
prosecutor’s oce, but to the investigation department of the Main Police
Department of the USSR Ministry of Internal Aairs. But still, so far, they
did not have the legal right to carry out the preliminary investigation in full
and carried out only individual orders of the investigators.
The adoption of the Fundamentals of Criminal Procedure of the USSR
in 1958 and the Code of Criminal Procedure of the RSFSR in 1960 served
as the beginning of a global discussion about the departmental aliation of
the preliminary investigation. But, as before, at the legislative level, which
was enshrined in Art. 25 of the Code of Criminal Procedure of the RSFSR,
the right of procedural supervision over the prosecution authorities was
retained.
By decree of the Presidium of the Supreme Soviet of the USSR No.
1237-VI of April 6, 1963 “On granting the right to conduct a preliminary
investigation to public order protection bodies”, the right to conduct a
preliminary investigation was transferred to the Ministry of Public Order
Protection of the USSR (USSR Ministry of Internal Aairs), which marked
the beginning of the ocial work of the investigative bodies of internal
aairs.
The right to conduct a preliminary investigation was vested in
investigators of public order protection agencies. Their work was supervised
by the heads of the investigative bodies. Thus, during the rst half of the
60s, the powers of the head of the investigative body, who exercised control
functions over the activities of the internal aairs ocers conducting the
inquiry and investigation, were formalized. But so far, these powers have
been reected only in departmental regulations.
Clause 6 of Art. 34 of the Code of Criminal Procedure of the RSFSR
contained a denition of the concept of the head of the investigation
department, which came to be understood as the head of the investigation
department, department, department of public order, state security and his
deputies, acting within their competence.
So, now the head of the investigative body performed the following
functions: exercising control over the activities of the investigator in
solving and investigating crimes, checking criminal cases, giving binding
instructions on the progress of the investigation, seizing the case and
transferring it to another investigator, entrusting the investigation to
several investigators, as well as personally took part in the investigation.
562
Dmitriy A. Ivanov, Kristina A. Moskovtseva, Olga V. Khimicheva, Vasily Dz. Potapov y Elmir
N. Alimamedov
Historical overlook on the birth and formation of the institute of departmental procedural control
in predictional criminal court proceedings in Russia
Thus, in accordance with the Code of Criminal Procedure of the RSFSR,
the head of the investigation department was endowed with a very small
range of organizational powers. In the academic environment of the 60s
and 70s a discussion broke out about the procedural position of the head of
the investigation department. Some suggested expanding the powers of the
head of the investigation department, transferring to him certain powers
of the prosecutor, for example, the right to remove the investigator from
the investigation, cancel his decisions, allow challenges and some others
(Urakov, 1964, p. 16).
Of course, there were also opponents of such ideas who said that such a
comprehensive empowerment of the head of the investigation department
would oppress the procedural independence of the investigator. It was also
suggested that such a transfer of powers from one “hand to another” would
not entail any positive changes for the investigation but would only change
the name in the form of control (Chistyakova, 1964).
This issue has not lost its relevance in the course of the judicial and
legal reform of the late XX century. In the course of the development of the
draft law of the new Code of Criminal Procedure of the Russian Federation,
the discussion did not subside, but, on the contrary, only became more
acute. So, during this period, in addition to the already existing positions,
ideas were put forward to eliminate the procedural gure of the head of
the investigative body, as well as to signicantly reduce the functions of
the head of the investigative department in order to ensure the procedural
independence of the investigator. As a result, in some bills the gure of the
head of the investigation department was deprived of procedural status,
and his powers were either left unchanged or signicantly reduced.
In the current Criminal Procedure Code of the Russian Federation in
2001, the gure of the head of the investigation department was retained,
and the scope of his powers was somewhat expanded. Thus, for the rst
time in legislation, the right of the head of the investigation department to
cancel the unfounded decisions of the investigator to suspend the criminal
case was enshrined.
The Code retained the following powers for the head of the investigation
department: he, as before, could entrust the investigation to one or
several investigators, he had the right to accept a criminal case for his own
proceedings and conduct an investigation independently in full, using all
the powers of the investigator. The head of the investigation department
had organizational powers, supervised the work of the investigator, checked
the materials of the criminal case, could give binding instructions on the
direction of the investigation, the application of preventive measures, and
the qualication of the crime.
563
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
During this period, the question arises of a clear delineation of the
functions of the prosecutor and the head of the investigation department,
since the border between the prosecutor’s control and departmental control
began to blur (Manova, 2015). Particularly relevant is the question of
expanding the adversarial principle in the stages of pre-trial proceedings
in a criminal case, while the most acute, as V. V. Pushkarev correctly notes,
there is a problem of correlation of powers of the investigator and the head
of the investigative body, on the one hand, and the prosecutor, on the
other, at the end of the preliminary investigation with the preparation of
the indictment (Pushkarev et al., 2021).
The next stage of transformations of the institution of departmental
control is associated with the establishment of the Investigative Committee
under the Prosecutor’s Oce of Russia in 2007. At the same time, signicant
changes were made to the Criminal Procedure Code of the Russian
Federation concerning the head of the investigation department. From that
moment on, he began to be called the head of the investigative body. Its
powers have also been signicantly expanded. Practically all the power and
administrative powers of the prosecutor regarding control over the course
of the preliminary investigation have been added to the functions already
existing.
After the 2007 reform, the legal literature again started talking about
the need to return to the prosecutor some of the control and supervisory
powers in the eld of preliminary investigation. For example, it was
proposed to return the authority to check the materials of the criminal case,
cancel the illegal and unjustied decisions of the investigator, give binding
instructions to the investigator about the direction of the investigation and
the performance of certain investigative actions.
In addition, suggestions were made about the need to impute to the
prosecutor the right to initiate a criminal case, conduct an investigation
himself, entrust it to an inquirer or investigator, and also stop criminal
prosecution (Popova, 2015, p. 201).
Federal Law No. 403-FZ of 28.12.2010 “On the Investigative Committee
of the Russian Federation” separated the Investigative Committee from
the Prosecutor’s Oce, which also entailed the need to amend the Code of
Criminal Procedure of the Russian Federation.
So, part 2 of Art. 37 of the Code of Criminal Procedure of the Russian
Federation was supplemented with clause 5.1, which implied the right of the
prosecutor to demand and verify the legality and validity of the decisions of
the investigator or the head of the investigative body to refuse to initiate,
suspend or terminate a criminal case, as well as the right to subsequently
make decisions on them. In accordance with paragraph 12 of Art. 37 of
the Code of Criminal Procedure of the Russian Federation, the prosecutor
564
Dmitriy A. Ivanov, Kristina A. Moskovtseva, Olga V. Khimicheva, Vasily Dz. Potapov y Elmir
N. Alimamedov
Historical overlook on the birth and formation of the institute of departmental procedural control
in predictional criminal court proceedings in Russia
had the right to seize the criminal case or inspection materials from the
investigator and transfer them to another body of preliminary investigation
or to the Investigative Committee of Russia. According to this law, the
competence of the head of the investigative body began to include the
right to cancel illegal or unreasonable decisions of the head, investigator of
another body of preliminary investigation on criminal cases pending under
the jurisdiction of a subordinate investigative body.
Conclusions
In conclusion, the authors substantiated the conclusion that the
negative impact of the comprehensive administrative function of the head
of the investigative body is often expressed in excessive suppression of the
procedural independence of the investigator by a series of instructions on
the direction of the investigation, the application of preventive measures,
or the qualication of the accusation. Of course, this is one of the modern
multifaceted problems of the institution of departmental procedural
control over the procedural activities of an investigator in pre-trial criminal
proceedings.
In the future, we see a steady trend of expanding the procedural status
of the head of the investigative body. Art. 39 of the Code of Criminal
Procedure of the Russian Federation continues to be supplemented by
editions of powers, thus, endowing the head of the investigative body not so
much with organizational functions as, for the most part, with power and
administrative functions.
Bibliographic References6
AZAROV, Vladimir Alexandrovich. 2012. The function of preliminary
investigation in the history, theory and practice of the criminal procedure
in Russia: monograph. Legal literature. Omsk, Russia.
CHISTYAKOVA, V.S. 1964. Bodies of preliminary investigation of crimes and
the delimitation of competence between them: author. diss. Cand. jurid.
sciences. Moscow, Russia.
DANEVSKY, V.P. 1985. Our preliminary investigation, its shortcomings and
reforms. Quickly, Moscow, Russia.
6 Some cited sources only have the initial of the name of the author or authors because it was impossible
to locate their full name as stable the standard of this journal.
565
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 554-565
KOLOKOLOV, N.A. 2009. “The latest novels of the Criminal Procedure Code
of the Russian Federation: the balance of the prosecution power is
stabilizing” In: Criminal proceedings. No. 2, pp. 28-33.
MAMONTOV, A.G. 1984. Formation of the institution of preliminary
investigation in the framework of the judicial reform of 1864: Monograph.
Legal Press. Moscow, Russia.
MANOVA, N.S. 2015. “Formation of the institution of departmental
management of the activities of an investigator in the Russian criminal
process (statutes of criminal proceedings and current legislation)” In:
Vestnik VSU, Ser. 5. Jurisprudence. Vol. 1, No, pp. 26-36.
POPOVA, T.Yu. 2015. “Changing the balance of powers of the prosecutor and
the head of the investigative body”, In: Bulletin of the Kemerovo State
University. Vol. 2, No. 62, 201-205.
PUSHKAREV, Viktor Victorovich; GAEVOY, Alexander Ivanovich;
KOLCHURIN, Andrei Gennadievich; BUKHAROV, Nikolay Nikolaevich;
PCHOLOVSKY, Nikolay Kazimirovich. 2021. “Ensuring the principle
of adversarial parties by the investigator at the end of the criminal
prosecution”, In: Laplage em Revista (International). Vol.7, No. Extra A,
pp. 304-310.
TARASOV, A.V. 2001. Institute of forensic investigators for reforms in the
middle of the XIX century (historical and legal analysis): author. diss.
Cand. jurid. sciences. Saint Petersburg, Russia.
TSVETKOV, Yu. A. 2015. “Historical stages in the development of the bodies of
preliminary investigation in Russia” In: History of state and law. No. 3,
pp. 33-37.
URAKOV, L.I. 1964. “On the procedural status of employees of the investigative
departments of public order protection bodies” In: Socialist legality. No.
7, 16-20.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en diciembre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 71
