Art. 151 Code of Criminal Procedure. Investigation. New edition. Comments
The special part of the criminal procedure law examines in detail the question of the bodies that conduct the investigation of the crime, and their competence. Investigation, along with the acceptance of the case to the production and the interaction of these structures among themselves, is one of the general conditions of the investigation.
What is investigation?
According to the logic of art. 151 Code of Criminal Procedure jurisdiction is defined as a group of certain features inherent in a criminal case, in accordance with which its investigation can be attributed to the competence of a particular body of inquiry or preliminary investigation. This term has a close relationship with such concepts as “competence”, “jurisdiction” and “jurisdiction”. Investigation gives a characteristic of the relationship between the criminal case and the body conducting the investigation, in terms of its characteristics. The term “jurisdiction” is used in the Code of Criminal Procedure in relation to the state and the judiciary. Current Criminal Law (including in Art.151 of the Code of Criminal Procedure of the Russian Federation) provides grounds for the identification of four signs of investigative jurisdiction, namely: generic (subject), territorial, personal, and mixed (alternative). From the point of view of theory, they all have common features with the types of jurisdiction and can be combined under one general concept of “jurisdiction”.
The proper form of the investigation and its subject are established directly by the rules of investigation, and indirectly they must ensure the speed and quality of the preparation of the criminal case for trial in court. In addition, they are closely related to the observance of the rights of the accused and the victim. In particular, they contribute to the correct addressing of complaints and petitions emanating from them.
However, the main thing in all this is that the right of a person accused of committing a criminal act to a “natural” (legal) investigator or investigator is realized. When the rules of investigative jurisdiction are violated (Article 151 of the Code of Criminal Procedure), doubts are born about the impartiality and honesty of the body conducting the investigation of a criminal case, which can be assigned what is called ad hoc (translated from Latin means “specifically for this case”).In the adversarial process, the bias of the public prosecutor is incompatible with the principle of equality of the parties.
Alas, but violation of Art. 151 of the Code of Criminal Procedure is observed quite often. It is important to understand what consequences come in the future. Non-compliance with the rules of investigative jurisdiction is a significant violation of the Code of Criminal Procedure and may entail not only the recognition of evidence in a criminal case as inadmissible, but also the annulment of a court decision in a cassation instance.
Signs of jurisdiction
Criminal procedural legislation of Russia implies two types of investigative jurisdiction: territorial and substantive (Article 151 of the Code of Criminal Procedure of the Russian Federation). The rest of the signs mentioned above are, as a rule, an exception or addition to the main one. So, exceptions occur when:
- the status of the victim, suspect or defendant has features;
- there is a connection with another criminal case;
- there is an exclusive competence of a certain criminal prosecution body.
The concept of generic (subject) jurisdiction
If we turn to paragraph 2 of Art. 151 of the Code of Criminal Procedure, it will become clear that the tribal jurisdiction, or, in other words, subject matter, is determined by the type, genus or category of the criminal act.It allows you to distribute the competence of the investigating authorities, both between different departments and within one, creating a multi-level system. Generic jurisdiction, in fact, depends on the nature of the crime, its degree of danger to society, as well as the characteristics of its object, that is, the specific sphere of social relations to which it was aimed. In other words, the substantive feature of investigative jurisdiction is reflected in the qualification of a criminal act in accordance with one or another provision of the Criminal Code of the Russian Federation (special part).
Preliminary investigation: jurisdiction
A preliminary investigation takes place when it comes to crimes classified as grave or especially grave. At the same time, their lion's share is accounted for by the ATS investigators. An exhaustive list of articles with qualifications for which the case falls to them is presented in the second part of paragraph 3 of the article under study. In particular, it is an injury to health intentional character, qualified as serious, robbery, misappropriation or embezzlement. And often only a simple and qualified composition is covered.
As a rule, crimes of a high degree of danger to society (terrorism, rape, kidnapping, etc.) committed by minors against persons under the age of 18, as well as those committed by officials persons listed in part two.
Certain criminal cases related to illegal drug trafficking, previously under investigation, belonged to the investigators (inquiry officers) of the Federal Drug Control Service. However, in 2016 this service was attached to the Ministry of Internal Affairs. From Art. 151 Code of Criminal Procedure in the new edition of this item at number eight as a result was deleted.
Inquiry is carried out in cases of criminal acts that belong to the category of small or medium gravity. They are also quite a lot. A detailed list and structure are reflected in Part 3 of Art. 151 Code of Criminal Procedure. If we turn to the text, it becomes clear how narrow the jurisdiction is. So, for example, investigators from the Federal Bailiffs Service can conduct inquiries only in certain cases, in particular those directly related to their competence, namely, non-payment of alimony or malicious evasion from payment of payables.
Also in paragraph sixth hour3 tbsp. 151 Code of Criminal Procedure of the state fire inspectors of state supervisory authorities have the authority to conduct inquiries on crimes related to violation of fire safety requirements, damage or destruction of forest plantations as a result of careless handling of sources of increased danger, including fire, etc.
The concept of local (territorial) jurisdiction
When studying art. 151 of the Code of Criminal Procedure with comments, it becomes clear that the main task of local jurisdiction is to delimit the competence of agencies and bodies of investigation of an equivalent level, depending on where the crime was committed in a geographic sense. It is implied in this case the territory in which the last act covered by the corpus delicti, or rather its objective side, was committed. At the same time the place of occurrence of consequences does not matter. For example, there are two sections, each of which is assigned to a separate investigation body. Suppose the offender was located within the boundaries of the plot "1" and fired a shot at the victim, located in the territory of "2".Despite the fact that the body is located on the second site, the authorities are obliged to carry out the investigation, to which the first territory is assigned.
However, it should be borne in mind that initially only an approximate establishment of territorial jurisdiction is possible. The preliminary investigation begins in the area where the criminal case was initiated, or to which it was sent by the prosecutor. Not always witnesses, the accused and the traces of the crime are located in the territory where it was committed. In this regard, there are some exceptions that ensure the completeness, speed and objectivity of the investigation.
This type of investigation is reflected in the article, following Article. 151 Code of Criminal Procedure. The boundaries of the territories of individual bodies of inquiry are established by regulatory departmental acts, taking into account the administrative-territorial division. This type of investigation is most clearly represented in urban areas of the ROVD.
Characteristics of personal or personal jurisdiction
Personal investigation establishes exceptions to the rules of the subject, depending on the signs of the victim or the accused.There are two such exemptions.
- The first is made from the inquiry in favor of the preliminary investigation. So, if a deranged person has a mental disorder (after committing a crime), which makes the appointment or execution of a punishment impossible, a preliminary investigation is necessarily carried out, even when an inquiry was to be made on the subject matter of the case.
- The second option of seizure is possible in cases where the crime was committed by a person who has official immunity (judges, prosecutors, deputies, etc.). It is carried out in favor of special structures from any other bodies of investigation.
Alternative jurisdiction: concept
In part five and six of Art. 151 of the Code of Criminal Procedure of the Russian Federation (with the latest amendments), an alternative sign of investigative authority is used. Let us dwell on it in more detail. Its essence lies in the fact that the withdrawal from the subject-matter jurisdiction is allowed in favor of the body of the preliminary investigation, which directly identified the criminal act and opened a criminal case. For example, this is a qualified fraud, refusal to testify, giving a bribe, etc.In other words, in any particular category of criminal cases, depending on certain circumstances, a preliminary investigation is carried out by bodies that belong to different departments.
What is universal jurisdiction?
Universal jurisdiction is a kind of exception from the subject. It takes place in the case when the qualification of a criminal act (generic attribute) does not matter. There is a universal jurisdiction in cases where the prosecutor submits any criminal case to the investigators of the Investigation Committee under the prosecutor’s office. This is enshrined in the criminal law norm 37 (part 11, 12). For such an action must be compelling reasons that you want to specify.
Dispute over jurisdiction
In accordance with part eight of Art. 151 of the Code of Criminal Procedure, the prosecution determines the jurisdiction of the criminal case in the presence of disputes, the competition of various signs. He is guided by the general rules.
- If there is a combination of different categories of cases, then the priority remains for the body to which the most serious criminal act belongs to the subject matter.As a rule, the preliminary investigation bodies have significant advantages over the investigator.
- If there is competition between personal and subject-matter jurisdiction, then the first priority is taken, except as specified in part four of Art. 151 Code of Criminal Procedure with the latest changes.
- Personal investigations are also more powerful when competing with alternative ones.