On the procedural status of the prosecutor, the head of an investigation body and the investigator in the contemporary Russian pre-trial proceedings

The article analyses the amendments to the Criminal Procedure Law (since 2007) concerning the functions of the prosecutor and the investigator in the pre-trial proceedings. The author finds these changes inconsistent and requiring significant modification. Special attention is paid to the fact that the prosecutor no longer performs the procedural supervision of the preliminary investigation. However, the prosecutor still retains some functions of procedural supervision, the list of which is constantly growing. There are two possible solutions to the problem. There can be a single investigation body, the head of which (either directly or through subordinate managers) will implement procedural supervision of the preliminary investigation and prosecution, and the representative of which will then support the public prosecution in court. In this case the prosecutor performs the supervisory function only both during the preliminary investigation and in court. Another way is when the prosecutor regains the function of procedural supervision during the preliminary investigation together with the relevant powers of authority. In this case the prosecutor again becomes the focal point of the preliminary investigation, bearing responsibility for its quality and efficiency. In any case the prosecutor shall regain his/her right to open a criminal case. Besides, the article concerns the problem of procedural independence of the investigator. Here the author means the influence that is exercised by the head of the investigation body, the prosecutor and the court on preliminary investigation. The head of the investigation body accumulates not only powers of authority as the supervisor of the investigator, but also those as the procedural supervisor. Moreover, the procedural powers of the head of the investigation body have been expanded in comparison with those which used to belong to the supervising prosecutor due to the fact the head of the investigation body is not just the procedural supervisor, but also the investigator's immediate superior. Another factor that seriously undermines the procedural independence of the investigator is total judicial supervision of the preliminary investigation. The list of cases that require judicial decision to perform investigative or other procedures is gradually expanding (Part 2 of Article 29 of the Criminal Procedure Code of the Russian Federation). Moreover, this list (contrary to the Constitution of the Russian Federation) can be expanded not only by the legislator, but also by the Constitutional Court of the Russian Federation. Furthermore, Article 125 of the Criminal Procedure Code of the Russian Federation is worded so that almost any action (inaction) of the investigator as well as its decisions can be appealed against in court. A serious blow to the procedural independence of the investigator, bringing it almost to nought, was delivered by amending Article 5, Paragraph 40 of the Criminal Procedure Code of the Russian Federation. This law states another participant of the criminal proceedings for the prosecution - a forensic investigator. Finally, a significant blow to the investigation authorities in general was caused by the Federal Law of December 6, 2011 (No. 407-FZ). According to this law, the material from the tax authorities only can encourage initiation of a criminal case on tax crimes. This innovation seems to have no sense at all.

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