Protection of the rights of parties to a trial while exercising judicial control over the procedural discretion of the investigator

In the modern Russian criminal procedure, the investigator is a procedurally independent participant. Because of the specifics of criminal procedure, such procedural autonomy is most often expressed in the form of discretion. However, the procedural discretion of the investigator cannot be unlimited. Procedural control, prosecutor's supervision and judicial control are the main limiters of the investigator's discretion. The special role of judicial control is related to its appointment. Judicial control provides judicial protection of fundamental rights and freedoms of anyone who believes that their rights have been violated by criminal proceedings. Such an approach is fully in line with the constitutional norms and principles of international law. When providing judicial protection, the court can significantly limit the procedural discretion of the investigator. Judicial control is important not only for ensuring the rights of certain subjects but also for adjusting the activities of an investigator that do not meet the purpose of criminal proceedings. However, the effectiveness of the judicial control mechanism in modern Russian criminal proceedings is often the subject of justified criticism. Judicial control is exercised in two main forms: in the form of judicial sanction of proceedings restricting the constitutional rights of citizens and in the form of a consideration of complaints by the parties and other persons on the decisions, actions (inaction) of the investigator. The courts hear a significant number of investigators' motions related to the selection of a measure of restraint or the proceedings of an investigative act. Statistics show a high percentage of granted motions. However, the labour intensity of the procedure for getting judicial approval often makes the investigator search for grounds for an urgent investigative act, followed by judicial control. The low efficiency of the mechanism of judicial protection is demonstrated by appealing the decisions and actions of investigators in the court. The flow of complaints creates a load on the judicial system. The shortcomings of the appeal mechanism result in the infringement of investigators' rights in defending their procedural discretion on the one hand and make it difficult to enforce the judgment on the other. The improvement of judicial control should take place in reforming the mechanism for ensuring the procedural autonomy of the investigator. Judicial control must be maintained, but it is necessary to waive the excessive duplication of supervisory powers over the investigator's activities.

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