About modern national criminal procedure science generally and organizations of the investigative device in particular

The present article deals with selected aspects and problems of the current state of national science of penal procedure in relation to optimization of the organization of criminal pre-judicial proceedings. On the basis of the critical analysis of separate positions about the place of the investigative apparatus in state mechanism the author states that procedural science cannot move beyond the established framework of pre-judicial proceedings and that neither legislators nor practical workers have a full picture of views on the specified questions. The occurrence of a similar situation has become possible in the conditions when the state and science of penal procedure don't have a verified single (non-departmental) concept of procedural and organizational legal (functional) structure of criminal pre-judicial proceedings. In this regard, the author of the article offers his vision of a sought concept relying on the research of Professor A. P. Gulyaev. The stage of initiation of legal proceedings needs to be transformed to the police inquiry according to the experience of pre-revolutionary Russia and contemporary foreign countries. By its gnoseological, legal, axiological and historical genetic nature the investigative power is a derivative of judicial authority under the full coincidence of their purpose. Thus, in this connection a preliminary investigation is a function of justice, and the investigator must be regarded as its representative and be in a judicial office. The prosecutor in pre-judicial proceedings shall have different roles. In the course of a preliminary investigation he is a prosecuting attorney deprived of supervising powers. During pre-investigation and summary proceedings he is a procedural head of criminal prosecution combining the function of prosecuting and supervision over legality of penal procedure and operational search activity. Differentiation of functions in the proceedings on the merits of the case and of the judicial control of legality and validity of preliminary investigation is ensured by introducing a relatively independent investigative judge who performs an independent judicial and control function. At the same time the preliminary investigation must be conducted only on the crimes (as a rule, grievous and extremely grievous ones) requiring a careful examination of the circumstances of a criminal event and its consequences with optimal simplification of pre-judicial preparations of the criminal case files about the crimes which don't require a preliminary investigation. The author believes that the theoretical framework for the above compromise has always been a single paradigm, which is not only accepted and shared by the scientific community but unifies the majority of its members. In other words, within the scientific community there is a need for a compromise i.e. a more or less coherent vision of a theoretical concept and, in particular, of procedural and functional legal construction of criminal pre-judicial proceedings.

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