Art. 165 of the Code of Criminal Procedure in a new edition with comments

Art. 165 of the Code of Criminal Procedure has undergone a few, but significant changes. The procedure for obtaining permission for investigative and investigative officials to apply certain procedural methods is very difficult, especially if it is judicial. And it is these difficulties that need to be highlighted in order to accurately understand this procedure and its consequences.

What is investigative action

Law enforcement agencies have a large number of powers that allow them to capture criminals and prevent socially dangerous acts. However, one must always remember that all actions are not performed on their own, some of them require certain preliminary procedures. To such moments should be attributed investigative actions, which are simply necessary for the investigation.

What is attributed to the same permissible law methods of law enforcement? Investigative actions are a combination of methods that help investigative bodies and inquiry officers collect and verify all evidence in the case. This is the main means of establishing the truth, since it is regulated by the code and other various federal laws.

The significance of the actions under consideration

Art. 165 of the Code of Criminal Procedure of the new version says that investigative actions, albeit not all, but require the consent of the court. This is the first time that will determine the significance of such methods. Each procedural decision and action bear legal consequences and influence the course of the criminal case, and accordingly, must be controlled, which is what happens at the expense of this rule.

The second not less important aspect is truth. The totality of the funds that are legally available to law enforcement officers helps to achieve the best result in the fight against crime. The more effective the investigative actions, the faster and more correctly they are committed, the more likely to receive accurate and accurate evidence, and also to confirm their truthfulness.

Types of investigative actions

Classifications of methods and methods used by investigators are quite diverse. The criteria can serve as subjects, the degree of measures that apply, the procedures for their implementation, the composition of participants in these actions, and many others. However, the law establishes specific types of funds that help to collect and verify evidence. Even art. 165 of the Code of Criminal Procedure of the Russian Federation pays attention to some of them taking into account their specifics.

So, the criminal procedure law fixes the following actions: search and seizure, interrogation, examination, investigative experiment. In addition, examinations, inspections, identification, verification of testimony, confrontation, seizure of postal items, recording and wiretapping are conducted. However, not each of the listed means requires a court decision as a basis for its application.

Art. 165 of the Code of Criminal Procedure of the Russian Federation in part one says that it is necessary to find a court decision in the event of a search and seizure, property seizure, wiretapping and communication between subscribers, as well as during the inspection. The other investigative actions proposed above can only be carried out on the basis of a resolution adopted by the investigator. Also, the court decision is necessary for the exhumation of the corpse, if necessary for the investigation.

Conditions for conducting investigative actions

Before the head of the investigation department or the inquiry inquires with the court to carry out certain actions that are important for the investigation, it is necessary to make sure that a number of conditions have been met that, in principle, allow us to apply any methods of gathering and verifying the evidence. There are several requirements that must be met before proceeding to the chairperson.

The first requirement - the presence of an excited case. If this did not happen, then none of the above investigative actions can be discussed. The second condition is the sanction. Usually it comes from the prosecutor. The third is the subject, that is, the person who has the authority to do this must act. And one more condition - the procedural requirements must be observed in accordance with the Code of Criminal Procedure of the Russian Federation, otherwise they will not have any force as a result.

Petition for investigative actions

The question of applying to the court for the issuance of permission to use certain means of obtaining and verifying evidence is established art. 165 of the Code of Criminal Procedure in a new version. With the comments to this rule, we can fully illuminate the issue under consideration, without resorting to recourse to other sources of law. So, what is the procedure for submitting an application for investigative actions?

The investigator or the investigator goes to court. It is important that either with the consent of the head of the investigation department, or with the consent of the prosecutor, respectively. Self-sufficiency in this matter is not available to the employees of the bodies, control by the authorities is mandatory. Each action, including the application to the court, is subject to a resolution and is fixed in the case file.

In some cases it is possible to challenge the actions of the investigator by the prosecutor. However, if there were no refusals from the heads of agencies and the court accepted the petition, then the next stage is made, namely, the direct consideration of the application in court and the adoption of a certain decision.

Stage of consideration of petition by court

The first thing you should pay attention to is the composition of the court. Art. 30 of the Code of Criminal Procedure of the latest version establishes several options, which provide for the possibility of investigating the case in a different composition. It can be a collegial decision-making, and maybe even one, depending on the instance and various other similar conditions.

If we talk about the issue of conducting investigative actions, then the law defines a clear rule. Art. 165 of the Code of Criminal Procedure of the Russian Federation fixes that these petitions must be considered by a single judge alone, namely by the district court or by the military, if the specifics of the case so require. There is no other option for making a decision, since the criminal procedure law is categorical in this aspect.

As for the participants in the trial, the CPC also clearly defines the circle of persons present on it. A single-member court, an investigator or an inquirer, depending on who exactly sent the petition, and accordingly, the prosecutor, who most often carries out the supervisory function in this matter. It is also possible the defendant's participation in accordance with the Civil Code of the Russian Federation.

Decision-making

The application is considered in accordance with Art. 165 of the Code of Criminal Procedure. With the comments to this article, you can determine the order of how the decision is made and what it, in principle, can be. The presiding judge relies solely on facts and the need to apply certain investigative actions.

The judge considers the petition submitted in the presence of all participants in the proceedings. If necessary, he can listen to explanations and a number of arguments that will confirm the need for applying any measures. As a result of the meeting, the presiding judge issues a decision that implies either the satisfaction of the petition or the refusal in it.

Appeal of a court decision

Any decision of a judge, whether it be a verdict, a ruling or a determination, can be appealed against in a higher instance in accordance with the law. Whichever question the presiding judge considers, the outcome can be changed if the interested persons so desire. The appellate instance also allows the revision of petitions filed by the investigator or investigator.

The rule on appeal is a generalization under art. 165 of the Code of Criminal Procedure. So, persons interested in reviewing court decisions can apply to a higher court, that is, to the regional court, so that the decision on the application of investigative actions or, conversely, the refusal of them be reviewed. This can be done both by investigators and investigators, and by the prosecutor. In some cases, it may be an interested civil defendant.

The exception to Part 5 of Art. 165 of the Code of Criminal Procedure

The law clearly defines a list of actions that can be carried out solely by a court decision. However, there are cases when the rule can be violated, because due to the urgency of the actions, their importance and necessity, the judicial consideration of this issue may take time, which would be too valuable.

Part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation states that when a seizure, search, seizure of property and other cases are carried out, a judicial decision is not possible . If such actions can not be delayed and there is simply no time for procedural tricks, then the investigator or the investigator simply issues a resolution on the implementation of the permitted methods without resorting to a judicial authority, and the presiding judge and the prosecutor are notified within 24 hours.

However, in this exception there is a reservation. Comments on the article indicate that some investigative actions, namely exhumation, the seizure of state-important documents, telephone conversations, and the use of coercive measures in the form of premises in a medical institution, do not allow for independent application, are not considered urgent and must always be accompanied by a court decision .