1. CONCEPT AND FORM OF PRETRIAL INVESTIGATION
Pretrial investigation - is carried out according to the Criminal Procedure Act the activities of the investigator and the police, aims to collect, research, assessment and use of evidence, prevention, preventing and detecting crimes, establishing the objective truth of correct application of law, protection of rights and lawful interests of individuals and entities. In the pretrial investigation and the police investigator solve such problems as: establishment and damages and to identify and eliminate the causes and conditions conducive to crime; education of citizens in a spirit of respect for the dignity of the citizen, the desire for justice and observance. The legal basis for pre-trial investigation is ruling on a criminal case. Pre-trial investigation may be conducted only with broken affair, carried out pre-trial investigation must in all cases, except in cases of crimes referred to in paragraph 1 of Article 27 and Article 425 CPC of Ukraine (to the right of private prosecution and pretrial preparation protocol form items) on which preliminary investigations in cases where a crime is a minor or a person who because of their physical or mental disabilities can not itself exercise its right to protection, and when it deems necessary prosecutor or court. Pre-trial investigation includes pre-trial investigation and inquiry, pre-trial investigation - investigative activities by the broken and admitted him to his criminal case proceedings, which has included in the collection, testing, inspection, assessment and use of evidence, establishing the objective truth, the implementation of legal action to ensure correct application of law, human rights and legal interests, natural and legal persons, creating conditions for administering justice. Inquest - is based on the law to research, and law enforcement activities dokazuvalna procedural powers vested with administrative and operational jurisdiction, directed to the detection, prevention, crime prevention and detection, investigation and detection of guilty, of the tasks of criminal justice.
2. Inquest: GENERAL PROVISIONS ORDER PROCEEDINGS, TIME
The preliminary investigation as procedural activity has two forms, connected between the goal and procedure: a preliminary investigation, carried out investigating prosecutors, investigators, police, investigators, security agencies and police investigating the tax (art. 102 CCP) as the leading form of inquiry and that conducted by the inquiry, listed in Art. 101 CCP, and in fact - the body of inquiry appointed by the chief person (eg, operational attorney criminal investigation, the officer-diznavachem in the Armed Forces) with the approval of his most important decisions in the case (on the search, the selection of preventive measures, etc.). Thus, the inquiry is one of two forms of proceedings in the preliminary investigation that leads to urgency and importance of its research procedures and organization. Inquest - "is based on the procedural law activities specifically authorized administrative organs to stop and solve crimes, track and exposing the perpetrators" [12, c. 331]. In the criminal procedure law of this exhaustive list, have the right to conduct the inquiry. For all their inquiry function is not the main activity. With the need to do criminal investigations they face in specific cases when necessary and inevitable. In such cases, the actions of those governed by rules of criminal procedure law, and they act as organs of inquiry. The police - is the authority empowered to criminal procedural law and investigate violations of criminal cases in connection with the information that came to them about crime and lack of opportunities to investigator proceed to trial proceedings. Inquest - the investigation carried out of necessity by the administrative jurisdiction that granted the status of the body of inquiry. Criminal procedural activities of the inquiry includes: 1. admission, registration, examination, inspection and permit applications and reports of crimes or the decision whether to institute criminal proceedings in case of direct detection of signs of crime (Articles 94-100 CPC of Ukraine); 2. investigation on cases of serious crimes (Part 2 of Art. 104 CPC of Ukraine); 3. inquiry in cases of crimes that are not serious (Part 1 of Art. 104 CPC of Ukraine); 4. pre-trial preparation materials in the form of a protocol (Articles 425 - 429 CPC of Ukraine); 5. conducting investigations in the manner of some investigative commissions of inquiry or other authority (Articles 114, 118 CPC of Ukraine); 6. participation in specific investigative actions that are carried investigator (part 3 art. 114 CPC of Ukraine).
The bodies of inquiry in accordance with Art. PPC 101 Ukraine are: 1) the police; 1.1) Tax Police - in cases of evasion of taxes and duties (mandatory payments), as well as in cases of concealment of foreign exchange earnings; 2) security authorities - in cases within their jurisdiction by law; 3) the commanders of military units, formations, heads of military institutions - for all crimes committed by their subordinates and soldiers indebted during their meetings, as well as in cases of crimes committed by workers and employees of the Armed Forces of Ukraine in connection Connections of duty or in the location of parts, connection establishment; 4) Customs authorities - in cases of contraband; 5) The heads of such establishments, remand prisons, hospitals and dispensaries and labor guilty labor dispensaries - in cases of crimes against the established order of performance of duty, committed by employees of these institutions as well as in cases of crimes committed in the location of these institutions; 6) fire safety authorities - in cases of violation of fire safety and fire regulations; 7) state border guard - in cases of illegal border crossings; 8) captains of ships which are in the distant sea. Inquiry as a form of pre-trial investigation in theCriminal procedure law currently provides for two forms of preliminary investigation activities as procedural. Both of these forms in their tasks, procedures interconnected. The presence of both forms of proceedings in the investigation of every criminal case is optional. The leading form of pretrial investigation is a preliminary investigation, which is investigating prosecutors, investigators, police, tax police investigators and investigative security services that provide art. 102 CPC of Ukraine. The second form of pre-trial investigation is an inquiry. Art. PPC 101 Ukraine provides a comprehensive list of the inquiry, ie, bodies and officials who have the right to conduct inquiry in criminal cases, as discussed above. By June 30, 1993 inquiry types differ depending on whether in a criminal case as a preliminary investigation, is not required. In the Code of Criminal Procedure was presented a list of articles of the Criminal Code and determined that the investigation of criminal cases under these Articles, the police had the right to terminate their drafting an indictment or close by nereabilituyuchymy circumstances. Thus the right of the victim and the accused were slightly narrowed than they had in pre-trial investigation. Since 1993, investigation of all criminal cases may be only the first stage of preliminary investigation. That is, the preliminary investigation is obligatory in all cases except for cases in which the protocol provides a form of pretrial preparation of materials and cases of private prosecution.
Quest by the rules established by the Criminal law for pre-trial proceedings, with some specifically agreed on withdrawal, amendments and regulations. Among the general provisions specific to all forms of inquiry and not inherent in pre-trial investigation are the following. "The person who conducts the inquiry, does not use procedural independence in that extent that the investigator uses. When you disagree with the instructions of the prosecutor: the prosecution as the accused, on the qualification of the crime and the amount of charge, on sending the case to court or to dismiss - the police (the person who conducts the inquiry) the right to challenge their superior prosecutor, but still of these guidelines. Such instructions prosecutor binding, as well as guidance on the election of a preventive measure, change or cancel a preventive measure, classification of crimes proceedings separate investigation and search of persons committed the crime "[11, c. 206].
Authority in conducting certain proceedings law itself confers no person who conducts the inquiry, but "the police". Therefore, in these cases, the chief organ of inquiry instructions required for the person who directly carries out the inquiry. In addition, those procedural documents, which reflect the decision of the investigation (the decision to accept that the law authorized the police) are subject to mandatory approval by the head body of inquiry. Article 104 of the Criminal Procedure Code determines the order an inquiry in criminal cases. This procedure is different for certain categories of criminal cases and depends on the severity of the crime. The severity of the crime is determined not arbitrarily but according to Art. 12 of the Criminal Code of Ukraine. Lines of inquiry and their features Quest for the crimes that are not severe. By checking the signs of the crime is not serious, the police institute criminal proceedings (usually it does is head of the person or body of inquiry diznavach) and, following the rules of criminal procedure law, conducts investigation into identifying the person who committed it. We approached the concept of "identifying the person who committed a crime.
"This concept may not identify with the term 'person is guilty of a crime." According to the Constitution of Ukraine guilty of a crime a person can recognize only the court (part 1 of article 62.).
Can not the concept of "identifying the person who committed a crime identified with the term" suspect "because according to the last village. 43-1 PDAs Ukraine covers a limited number of persons with a certain probability only beginning to be attracted to criminal responsibility, and applied for detention on suspicion of committing a crime or one of the safeguards to an order of arraignment of the accused "[8, c. 83-84]. If "installed by the person who committed a crime to believe the accused, the question arises as whether the police have the right to make decisions about the arraignment of the accused. Art. 131 CCP provides that a decision on an order of bringing the accused person accepts investigator. But this rule does not point to the prosecutor's right (as the body of inquiry), which defines art. 227 CPC of Ukraine. Meanwhile, legislators in the art. 109 CCP allows the body to close the inquiry a criminal investigation if the circumstances under art. 6 PDA. Such circumstances, in particular, may be referred to in paragraph 4 of Art. 6 CCP amnesty act if it eliminates the use of punishment for an act in connection with pardon individuals. Closing a criminal case under these circumstances may only be relatively perpetrators if they pleaded guilty of a crime and did not object to close a criminal case under these grounds. This can be made (define) only by a person is charged and the questioning of the accused. Thus, "giving the body of inquiry to close criminal cases on the grounds under paragraph 4 of Art. 6 CCP, the legislators came from the fact that the police have the right to decide on the prosecution of a person as a defendant. But, given the importance of the decision to bring the accused person (perhaps a fundamental decision on pretrial investigation) and that the police may not finish compiling criminal indictment, to give a final assessment of evidence, in fact, for the arraignment of the accused immediately liable investigator, who finished the preliminary investigation. So we can assume that the police should decide on the arraignment of the accused and the prosecution to present only when there are grounds for termination of criminal proceedings under Art. 6 paragraph 4 device Ukraine "[8. 84].
No criteria, rules, circumstances and conditions when you can come to the conclusion that in a criminal case at an inquiry "set the person who committed a crime, the law does not define. Therefore, in practice the police often determines the time "identifying the person who committed a crime at random - with a person's testimony in which she tells about the circumstances of the offense, and the presence of a minimum of evidence, which enable to believe that a crime is a particular person. This approach to the determination of "identifying the person who committed a crime" enables the police, without making the whole amount of the procedural actions necessary for gathering evidence, send criminal investigators, without bearing any responsibility for it.
Approval or Disapproval prosecutor orders the transfer of criminal investigators, is not a reliable guarantee that "set the person who committed a crime, because the prosecutor's always advantageous to pass criminal investigator to achieve the objectives of criminal justice. Supplement Code of Criminal Procedure Art. 98, which includes "identifying the person who committed a crime even to the criminal case, further underlines the ambiguity of the concept. From the moment when the definition of "prescribed person who committed a crime related to the launching point timing of the investigation. Today, with such uncertainty concept of "identifying the person who committed a crime, not counting the period of pre-trial investigation (inquiry or pretrial investigation) link from the adoption of a procedural decision or at least with the foliation of any specific procedural document. Make a person who commits a crime, the police have the right to continue an inquiry for another ten days, and then must pass a resolution on the transfer of criminal investigators. This regulation gives the police prosecutor for approval. In adopting this resolution the prosecutor, the criminal case is assigned to the investigator. If the prosecutor is not approved the resolution on the transfer of criminal investigators, it is presumed that the person who committed a crime is not established and the police continues to carry out legal proceedings. If the body of inquiry in the case of crime is not serious, does not have a person committed a crime, and all necessary and possible investigations made, the inquiry stops in keeping with Art. 209 CPC of Ukraine. Extension of the inquiry does not involve law. Inquest in cases of serious crimes. The police have the right to bring criminal charges of any crime. "If the police instituted criminal proceedings on serious crime, according to the requirements of art. PPC 104 Ukraine, he must, guided by the rules of criminal procedure law, perform urgent investigation within ten days. In this case we are talking about the investigation, delays in proceedings which might hinder the achievement of objectives investigation that lead to loss of evidence or the possibility of their taking. As a negative consequence of this may be the inability of the crime. Emergency can be any investigatory action. This is determined by the inquiry body, depending on the particular circumstances of the case. Vivid examples of the urgency of the inquiry is the appointment of expertise related to research facilities, perishable detention of suspects, etc. "[8. 86]. Completing urgent investigation, the police must pass criminal investigation by the prosecutor within ten days, regardless of the installed person who commits a crime, not installed. In practice, the question arises whether the prosecutor must approve resolutions of inquiry on the transfer of a criminal investigation of serious crime investigation, if the ten-day period ended and immediate investigation (probably no investigatory action) not held. "Since the prolongation of an inquiry does not involve law, the prosecutor has to approve the resolution on the transfer of criminal investigators under such circumstances. Meanwhile, Attorney must respond to the violation of the law in accordance with Art. 30 of the Law "On Prosecution" [8. 86]. In the event of a criminal investigation of serious crime, which do not have the person who committed it, the police, according to art. PPC 104 Ukraine is obliged to continue the operational-search actions and report on their findings to the investigator. According to Art. PPC 109 Ukraine if the circumstances envisaged by Article 6 of the CPC of Ukraine, the police obliged to close a criminal case. On closing the criminal case the police is a reasoned decision, a copy of a daily period in directing the prosecutor.
On closing the criminal case the police must inform interested persons, or send them a copy of the closure case. Features close a criminal case under paragraph 4 of Art. 6 CPC of Ukraine stated above. Decision to close a criminal case consists of the requirements of Articles 130, 214 CPC of Ukraine. The introduction states: location and time of its making, the officials, who shall rule, its name, the case in which the decision was. In the descriptive-reasoning part of defining all legally significant facts and circumstances set forth in the case, especially crime scene or act, who committed it, a qualification or other legal act of assessment, factual and legal grounds and motives of the case, procedural rules, which at that managed. The operative part must logically run out of descriptive-motivation part of the decision. It should say: The essence of the decisions to close the case, indicating the grounds the case and information on the person against whom the case is closed or the event details in connection with which the case has been infringed; § decision about the fate of evidence and property, which are arrested; § decision to cancel a preventive measure; § decision to cancel the arrest of postal and telegraph messages; § decision to cancel the arrest of deposits; § the decision to bring to the notice of termination of criminal proceedings stakeholders to clarify their rights to appeal this decision and to clarify law on rehabilitation of a person who was illegally brought to justice. If the investigation found evidence that require the application of disciplinary or civil or administrative penalty impact on a person who prytyahalas as defendant or to others, the investigator, closing the criminal case, bring those facts to the attention of the NGO friendly court of the staff or administration enterprise, institution or organization to take appropriate enforcement actions or send the case file to court for application of administrative penalties. Copy of resolution of the case is sent to the prosecutor, the person prytyahalasya criminal charges, the person on the statement which was a violation of the right and the victim and civil party. Pursuant to art. PPC 104 Ukraine for signs of crime is not serious, the police institute criminal proceedings and, following the rules of criminal procedure law, conducts investigation into identifying the person who committed it. Then the police, the Holding periods provided in clause 1 of Art. 108 CCP, is a resolution to refer the case investigator, submitted a prosecutor for approval. In case of violation of the inquiry body of serious crime, he must pass it to the investigator by the prosecutor after the implementation of urgent investigative actions within not more than 10 days (Part 2 of Art. 108 CCP). If in the case of a serious crime, given that the investigator does not have a person who committed it, the police continues to carry out operational-search actions and inform the investigator about their consequences.