No 1 (2025)

The paper presents the author’s vision of the organization of balanced pre-trial proceedings based on the functional delineation of the activities of state authorities ensuring the fulfillment of public-law duties of the state in criminal procedure. Analyzing the activities of bodies implementing criminal intelligence activities, preliminary investigation bodies and the prosecutor in pre-trial proceedings, the author judges from the focus of their activities on ensuring the interests of the state in the fight against crime using various forms of state-authority activities – solving crimes, investigating crimes and prosecuting guilty persons. The interaction of state bodies when solving and investigating crimes and their general focus on identifying the facts and circumstances of the committed act allowed evaluating critically the current norms of the Criminal Procedure Code of the Russian Federation, which exclude criminal intelligence activities and their results from the subject of criminal procedural regulation, and substantiating the conclusion on the advisability of combining these types of activities in one criminal procedural function – the function of solution and investigation. The absence of legal regulation of the prosecutor’s activities in carrying out criminal prosecution in pre-trial proceedings and the absence of legal norms regulating the procedure for forming and bringing state charges allowed substantiating the conclusion about the need for functional separation of criminal prosecution as an independent area of activity – the criminal prosecution function. Based on the obtained results, the author proposed a legal model for the implementation of law-enforcement criminal procedural functions in pre-trial proceedings, including: 1) the function of solving and investigating crimes combining two types of state-authority activities – solving crimes by bodies performing criminal intelligence activities and investigating crimes by preliminary investigation bodies, with the latter playing the leading role; 2) the function of criminal prosecution carried out by the prosecutor through the formation and bringing of state charges and the subsequent initiation of judicial proceedings in a criminal case. Based on the presented classification of law enforcement functions of criminal procedural activities, the author concluded about the need for legislative restructuring of the pre-trial part of the criminal procedure.

The paper considers concepts of investigative action competing in the theory of criminal procedure – the concept of investigative action as a method of collecting evidence and the concept of investigative action as a method of forming evidence. By studying the mechanism of interaction of the preliminary investigation body with traces of a crime, the author substantiates the nonidentity of the concepts of “collection of evidence” and “formation of evidence” in order to determine the place of each of them in the system of criminal proceedings. The study shows that the discussion about the nature of investigative action is generated by a complex, multi-component and ambiguous concept of evidence, which has informational (cognitive) content and an external form that preserves this content, both independent of the actions of the investigator, inquiry officer and created (formed) by him during investigative actions. According to the author, the two scientific concepts of the epistemological nature of investigative action considered in the paper are based on the difference between ready (paratus, according to S.B. Rossinsky) evidence and evidence that receives a procedural form in the process of investigative action. Taking into account the nonidentity of the concepts of “collection of evidence” and “formation of evidence” noted in the paper, the author rejects the proposal made in science to replace the first term with the second. Each of them has its own content, and none of them is a universal characteristic of an investigative action, the structure of each of which contains both rules regulating the process of collecting evidence and rules concerning the formation of evidence. Formulating a proposal to classify evidence into collected (received) and formed, based on the degree of influence of the cognitive activity of the investigator, inquiry officer on their content, the author substantiates the conclusion about the impossibility of classifying investigative actions themselves into methods of collecting evidence and methods of their formation.