The stage of initiation of a criminal case as an administrative barrier, beyond which a preliminary investigation begins (for example, Article 177 of the Criminal Code of the Russian Federation and other elements of crimes under the jurisdiction of the FSSP of the Russian Federation).

Sasykin Konstantin Yurievich Bachelor of Law of St. Petersburg State University, Master's student of Siberian Law University, practicing lawyer 196158, Russia, Sankt-Peterburg oblast', g. Saint Petersburg, pr.Dunaiskii, 13k1 sasykin-delo@mail.ru

The Constitution of the Russian Federation (Part 1 of Article 45, Part 1 of Article 46, Article 52) guarantees state, including judicial, protection of the rights and freedoms of citizens. The State must provide victims of criminal attacks with access to justice. The exercise of this right is closely linked to the effective exercise by the State of the criminal procedure function in the person of the relevant established preliminary investigation bodies.

The stage of initiation of a criminal case provided for in Chapters 19, 20 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), in practice called the stage of pre-investigation verification of a crime report, is considered as an integral initial stage of the procedural activities of the preliminary investigation bodies aimed at collecting information necessary for making a lawful and reasonable procedural decision to initiate a criminal case or any other decision provided for in Part 1 of Article 145 of the Code of Criminal Procedure of the Russian Federation, carried out within certain terms of the Code of Criminal Procedure of the Russian Federation.

This stage acquired the status of an independent one in 1960 at the time of the adoption of the Criminal Procedure Code of the RSFSR, being defined by articles 109 - 116 of this Code, which was an attempt to separate the existing institute of pre-investigation verification of a crime report, but not formally separate, from the institutions of preliminary investigation.

Indeed, until 1960, the norms of the criminal procedure legislation of the Russian Empire (the Statute of Criminal Procedure of 1864) and the RSFSR (the Code of Criminal Procedure of the RSFSR of 1922 and 1923) did not provide for the need to issue a separate procedural act on the initiation of a criminal case, determining the need to carry out verification measures without this.

For example, in the text of the Statute of Criminal Proceedings of 1864, although there were formulations "the right to initiate a criminal action" (Article 5), "initiation of a criminal case by a prosecutor" (Article 297), "the prosecutor and his comrades can initiate cases" (Article 311 of the Statute)^[1], but still the specified normative act regulated it is the reasons for the initiation of the investigation and the procedure for conducting such an investigation, without separating them into a separate stage. In particular, Article 303 of the Statute of Criminal Proceedings of 1864 established that "complaints are considered a sufficient reason to initiate an investigation. Neither a judicial investigator nor a prosecutor can refuse that to a person who has suffered from a crime or a misdemeanor."^[2]

The moment of initiation of a criminal case (initiation of criminal proceedings) in the specified Code of Criminal Procedure of the RSFSR of 1922, 1923 was also not indicated, since the issuance of a mandatory special resolution on the initiation of a criminal case was not required. In the presence of a reason specified in the law containing information about a crime, the body of inquiry began to conduct an inquiry, and the investigator - to conduct a preliminary investigation. In fact, the beginning of the investigation and the procedure for conducting such an investigation was built on the principle of "there is an investigation while there is no decision to refuse an investigation", since Article 100 of the Code of Criminal Procedure of the RSFSR of 1922 and Article 95 of the Code of Criminal Procedure of the RSFSR of 1923 contained identical norms according to which, having seen from the statement or message itself the absence of signs of a crime in the case, the bodies of inquiry, the prosecutor or the investigator had the right to refuse to conduct an inquiry or preliminary investigation and announced this to interested persons or institutions^{[3] [4]}.

It is reasonable that in the conditions of modern globalization, the introduction of standard generally accepted norms and models of legal organization into national legislation, the stage of initiation of criminal proceedings existing in Russian law, being both historically unusual for Russian law and a stage of criminal proceedings not characteristic of the vast majority of modern foreign legal systems, is traditionally of interest in the domestic scientific environment, both for liberal-minded scientists pursuing the development of democratic principles in our country, and pragmatists-representatives of law enforcement agencies who see serious practical shortcomings of Chapters 19, 20 of the Criminal Procedure Code of the Russian Federation.

Turning immediately to critical views on the stage of initiation of a criminal case, the definition presented by Yu.V. Derishev, who called it nothing more than a "relic of socialist legality", deserves attention^[5].  Makhov V.N. calls the stage a "relic of socialism", which makes the criminal process of Russia laborious and ineffective^[6]. According to M.Yu. Beketov, the stage of initiation of a criminal case in its current form is an element of the "inquisition process".^[7]

It is obvious that the basis for such conclusions is the persistent and continued during the long "Soviet" (after the adoption of the said Code of Criminal Procedure of the RSFSR in 1960) and the "post-Soviet period" of the development of our legislation, the transformation of this stage into a kind of "surrogate" investigation (or investigation of the first level), and, accordingly, the simultaneous degeneration of bodies preliminary investigation to the bodies of inquiry (especially in the conditions of an unwritten, but strict ban on the termination of criminal cases), which entails constant law enforcement problems around the search for the need to initiate criminal cases for newly identified crimes during the proceedings.

As some researchers note, new subjects of the Criminal Procedure Code of the Russian Federation, such as "the applicant", "persons involved in the production of procedural actions when checking a person's crime report", "a person against whom a preliminary check of a crime report is being conducted ..."^[8], still remain "phantom". It is reasonable to single out other law enforcement issues raised at the stage of initiation of a criminal case, such as: difficulties in identifying signs of certain categories of crimes^[9]; problems of using evidence obtained at the stage of initiation of a criminal case; ^[10]significant restriction of citizens' rights to access to justice^[11].

Taking into account the identified problems, the question of the expediency of preserving as such this initial independent stage of the criminal process, which has a pronounced administrative character, is reasonably raised. And in this "key" more than once among domestic processualists (including those mentioned above), ideas were voiced about the need to reform the stage of initiation of a criminal case by turning it into an institution of the beginning of criminal proceedings. Such ideas even acquired the status of the official position of the Ministry of Internal Affairs of Russia in 2013 by presenting in the form of separate theses in the "Roadmap for further reform of the internal Affairs bodies of the Russian Federation".^[12]

The domestic legislator did not go further than the announced plans, being cautious and only occasionally making point-based edits to chapters 19, 20 of the Criminal Procedure Code of the Russian Federation, than selectively and "after the fact" covering the existing gaps in legislation, although of a significant nature, but not solving the situation holistically (for example, Federal Law No. 27.12.2019 499-FZ "On Amendments to the Criminal Procedure Code of the Russian Federation")^[13]. Numerous proposals were never considered at all, or they were refused.^{[14] [15]}

It seems that in many respects the rejection of the "global" reform of the criminal case initiation stage has an economic explanation, although other positions are voiced along with concerns that such a significant redrawing of the Criminal Procedure Code of the Russian Federation will allow officials of the preliminary investigation bodies to carry out investigative actions involving the use of coercive measures, to apply measures of criminal procedural coercion on all registered statements and reports of crimes.^[16]

On the one hand, indeed, some scientists who support the existence of the stage of initiation of a criminal case, in support of its expediency, note the possibilities of saving the federal budget. Comparing the statistics of filing applications for crimes, statistics of criminal cases initiated in the same period, the amount of budget funds spent during this period, coming to the conclusion that significant expenses should be incurred in the event of the abolition of the stage of initiation of criminal proceedings, estimated in thousands of billion. per year for the federal budget.^[17] However, without examining the correctness of the application of such calculation methods, it seems that the very formulation of the question of the economic inexpediency of a particular stage of the criminal process as a fundamental approach is unacceptable, since it translates a narrow-profile discussion in the field of criminal procedure to a greater extent to the problems of the organization of budget planning. In accordance with Article 6 of the Code of Criminal Procedure of the Russian Federation, one of the main purposes of criminal proceedings is the protection of the rights and legitimate interests of persons and organizations who have suffered from crimes, and this principle, of course, should be reflected in the procedural institutions of criminal procedure legislation implementing it. Neither this article nor the Code of Criminal Procedure of the Russian Federation contain norms on the protection of the federal budget from excessive expenses for the implementation of this purpose.

As for the other explanation indicated - concerns about the possibility of investigative actions involving the use of measures of criminal procedural coercion for all registered statements and reports of crimes, this position is more theoretical and not based on a systematic interpretation of the Code of Criminal Procedure of the Russian Federation, also not reflecting reality.

Firstly, within the meaning of the presumption of innocence established by Article 14 of the Code of Criminal Procedure of the Russian Federation, a person is not guilty of committing a crime until the guilt is proved in accordance with the procedure provided for by the Code of Criminal Procedure and established by a court verdict that has entered into force, as a result of which it is necessary to talk about the unchanged status of a person actually suspected of committing a crime during the entire period of criminal proceedings until the entry into force of the court's verdict. In this regard, for example, the legislator should not make the possibility of applying criminal procedural coercion measures against such a person dependent on the fact of initiating a criminal case. In fact, a person suspected of committing a crime also does not become more dangerous to society after the initiation of a criminal case than after the alleged commission of a crime by her.

Secondly, when applying coercive measures, investigative actions should be taken into account only the presence or absence of grounds for their application or production, and the norms of the Code of Criminal Procedure of the Russian Federation (Chapter 16) determine the procedure for judicial and extrajudicial appeal of illegal actions committed in criminal proceedings. Accordingly, taking into account the above positions, a formally issued document - a resolution on the initiation of a criminal case can also not be laid as a basis. Otherwise, we would have to talk about the relevant violations after the initiation of a criminal case, but problems in this part of law enforcement are not seen in practice.

Thirdly, it is worth paying attention to the obvious parallel when comparing "verification" and investigative actions. For example, the interviewed persons will be re-interrogated during the preliminary check - the eyewitnesses as witnesses, the applicant as a victim. Such double actions cause unnecessary human and material costs, besides, many eyewitnesses believe that it is easier not to give an initial explanation, so as not to go and retell the same thing to the investigator, the interrogator during the interrogation. It does not seem logical enough that the information contained in the explanation allows the investigator to draw a conclusion about the presence or absence of signs of a crime, but at the same time it has no evidentiary value. ^[18]

Fourthly, the need for detention, search, seizure, and the use of "other" measures often manifest themselves after the commission of a crime, and not after the initiation of a criminal case, the verification of which can often last more than one month. For example, a study of criminal cases and "refusal" materials conducted back in 2010 showed unsatisfactory statistics - only 17% of applications and messages were made within three days; 35.3% of applications and messages were resolved within three to ten days; over ten days - 36.6%; and the remaining 11.1% - exceeding the monthly period.^[19] In this situation, the moment of the commission of the crime and the beginning of criminal proceedings in the interests of solving the crime in hot pursuit should chronologically coincide, and not intentionally separate for formal reasons.

And if the statistics given by the fourth paragraph takes into account obvious crimes that have a completed composition (for example, Article 105 of the Criminal Code of the Russian Federation), the moment of commission of which is often chronologically close to the moment of initiation of a criminal case, then using the example of complex crimes with higher latency, including ongoing crimes, we can talk about similar (low) indicators of excitability with exceeding the monthly period are not necessary. This means that there is no need to talk about even theoretical possibilities for the timely application of procedural coercion measures, including those not related to the restriction of freedom and movement.

From the perspective of such issues, it is reasonable to take into account certain elements of crimes under the jurisdiction of the Federal Bailiff Service of the Russian Federation (hereinafter referred to as the FSSP of Russia), encroaching on public relations in the field of justice, family and minors, as well as economic activities, when considering reports of which the above–mentioned shortcomings of the stage of initiation of criminal proceedings are manifested.

Thus, the FSSP of Russia in its report on the results of its activities for 2020^[20] noted that in the corresponding calendar period, 46.4 thousand criminal cases were initiated during the implementation of criminal law powers, of which only 239 cases were against persons who maliciously evade repayment of accounts payable on a large scale. (Article 177 of the Criminal Code of the Russian Federation). Out of 46.4 thousand criminal cases, 44.3 thousand criminal cases were initiated against persons who do not pay funds for the maintenance of children or disabled parents (Article 157 of the Criminal Code of the Russian Federation), and in relation to crimes under Articles 311, 312, 315 of the Criminal Code of the Russian Federation, the service indicates a generalized total indicator - almost 1.9 thousand cases. The crimes provided for in Part 1 of Article 294, Article 297 of the FSSP of Russia are not indicated at all in their report. Statistics of registered reports of crimes are also not provided. Similar excitability figures took place a year earlier - according to departmental statistical reports (for 2019)^[21] based on the results of consideration of reports of crimes by the bodies of inquiry of the FSSP of Russia, 54,143 criminal cases were initiated. It is important to note that the same document indicates 86,804 reports of crimes registered in the same period in the FSSP of Russia. According to the elements of crimes initiated: under Article 157 of the Criminal Code – over 51 thousand cases; Article 312 of the Criminal Code – over 1.2 thousand cases^[22], Article 315 of the Criminal Code – over 1.3 thousand cases., Article 177 of the Criminal Code - 179; Article 297 of the Criminal Code - 101; Part 1 of Article 294 of the Criminal Code – 20.

Such statistics on the detectability of these crimes and their excitability cause serious concerns, taking into account the circumstances of 110.5 million enforcement proceedings in the FSSP of Russia in the same year 2020 (according to the above report), the total rate of enforcement for which, although totaling 696 billion rubles, however, in percentage terms is only about 50%. of the total volume of enforcement proceedings initiated. Similar indicators took place in 2019 (102.9 million enforcement proceedings, in which a total of 731 billion rubles were recovered)^[23].  

Taking into account these indicators in relation to Article 177 of the Criminal Code of the Russian Federation (179 criminal cases in 2019 and 239 criminal cases in 2020), plunging into law enforcement practice, I dare to conclude that the relevant data are not a reflection of the low level of the corresponding crime in Russia, but an objective consequence of both the incorrectness of the criminal law norm itself and and as a consequence of the presence in the Criminal Procedure Code of the Russian Federation of the appropriate stage of initiation of a criminal case. And if so, then such a practice will have its consequences not only a hidden increase in crime, but also eliminate the preventive function of the corresponding criminal law norm.

And, indeed, first of all, it is worth paying attention to the flaw in Article 177 of the Criminal Code of the Russian Federation, namely, the absence in this code of norms that imperatively clarify the disposition of the article. This applies not only to Article 177 of the Criminal Code of the Russian Federation, however, in relation to this norm, in particular, it is currently not clearly defined what is malicious evasion and what is the malice; whether the malicious behavior of the debtor is formally issued by a warning or other document and in what quantity; what is the accounts payable and whether it is summed up accounts payable for several enforcement proceedings, including several creditors; etc. Failing to resolve such issues at the level of the legislator or at least through explanations by the Supreme Court of the Russian Federation in the form of a corresponding resolution of the Plenum, giving "at the mercy" of the FSSP of Russia ^[24] on the principle of "they will figure it out themselves" entails, even before the initiation of a criminal case, an incorrect interpretation of the law by officials of this service (in this case, it is reasonable to mention not only the interrogators, carrying out the inspection in accordance with Article 144 of the Code of Criminal Procedure of the Russian Federation, but also the bailiff, who is obliged^[25] to identify the relevant acts at the stage of enforcement proceedings, about which to issue a report in accordance with Article 143 of the Code of Criminal Procedure of the Russian Federation), as well as prosecutors exercising supervision, judges exercising in accordance with Articles 123-125 of the Code of Criminal Procedure of the Russian Federation consideration of complaints about the actions and inaction of officials.

Secondly, the very presence in the domestic criminal procedure legislation of the very specified stage of initiation of a criminal case as a "filter" aggravates the situation of improper regulatory regulation voiced above, providing an opportunity for authorized persons (in the case under consideration with Article 177 of the Criminal Code of the Russian Federation - FSSP of Russia) not only to interpret such norms in their own way, but also to abuse such a "filter".

The most "sore point" in this regard is the possibility allowed by the Criminal Procedure Code of the Russian Federation to refuse to initiate criminal cases and at the same time to petition for the cancellation of the relevant resolution before the supervisory authority – the prosecutor, followed by endless repetition, not limited by any deadlines and requirements for the content of newly issued acts. Taking into account the timing of the shipment, the risks of loss of verification materials, as well as the "traditions" existing in domestic law enforcement and supervisory authorities to review documents within the deadline, verification measures can last for years.

The presence of such a "disease" as a chronic one is indicated by the numerous judicial practice of the courts of appeal of general jurisdiction considering incoming complaints about the inaction of the investigators of the FSSP of Russia: The decision of the Khabarovsk Regional Court of 19.12.2018 in case No. 3A-184/2018~M-180/18, the Appeal decision of the Moscow City Court of 18.04.2019 in case No. 10-7295/2019, the decision of the Leningrad Regional Court of 27.05.2019 in case No. 3a-115/2019, the Appeal ruling of the Kaliningrad Regional Court of 06.02.2019 in case No. 33-23/2019(33-5766/2018;), the Appeal ruling of the Leningrad Regional Court of 12.09.2019 in case No. 33A-5743/2019, the Appeal Ruling of the Saratov Regional Court of 16.12.2020 No. 22-3093/2020, etc.

In particular, the desire to "grab your head" is caused by the circumstances set out in the above-mentioned Decision of the Khabarovsk Regional Court of 19.12.2018 in case No. 3A-184/2018~M-180/18 of the issuance of 23 decisions within 23 months to refuse to initiate criminal proceedings on the basis of paragraph 2 of part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation due to the absence in the act of the General Prosecutor the director of a business company of the corpus delicti provided for in Article 315 of the Criminal Code and Article 177 of the Criminal Code, without checking the applicant's arguments, in conditions of incompleteness of the verification materials, failure to demand the necessary evidence. At the same time, the court found that often no actions were taken between the decision to cancel the illegal decision to refuse to initiate criminal proceedings and the subsequent decision to refuse to initiate criminal proceedings.

There is a similar practice for other categories of cases, also reflecting the problems of the possibilities of lengthy red tape at the stage of initiating a criminal case. For example, the Appeal resolution of the Belgorod Regional Court of 16.09.2020 N 22k-1136/2020 deserves attention, within the framework of which the issue of conducting verification actions of a low-quality nature carried out from 2017 to 2020, which ended with identical in content decisions on refusal to initiate criminal proceedings, was considered. The decisions were canceled by the prosecutor's office "on the principle of just to cancel", without professional instructions, followed by repetition "in a circle". Similar and longer periods of "filtration" measures should be mentioned in the Appeal Decision of the Krasnodar Regional Court of 12.12.2019 in case No. 22-7968/2019, the Decision of the Rostov Regional Court of 12.03.2020 in case No. 3a-172/2020, the Appeal Decision of the Moscow Regional Court of 23.07.2020 in case No. 22k-4567/2020, the Appeal Ruling of the Samara Regional Court of 01.03.2021 in the case N 33-2286/2021(2-3428/2020, the Appeal decision of the Smolensk Regional Court of 07.09.2020 N 22k-1424/2020, 3/10-134/2020, etc.^[26].

Accordingly, reasoning about the possibilities provided for in the Code of Criminal Procedure of the Russian Federation for the unreasonable duration of consideration of reports of crimes as the reasons for such a practice, is it worth saying that during the period of pre-investigation verification, the debtors concerned have the opportunity to legally ignore appearances to the investigator of the FSSP of Russia, move freely, including travel outside the Russian Federation (if there is no ban established in the within the framework of enforcement proceedings in accordance with Article 67 of Federal Law No. 229-FZ of 02.10.2007 "On Enforcement Proceedings", the investigator, by virtue of the Code of Criminal Procedure, cannot limit the powers in the relevant law at the stage of checking the report of a crime), which only complicates the pre-investigation check and extends its term.

The problems are further exposed by the presence in the Code of Criminal Procedure of the Russian Federation of norms on exemption from criminal liability in connection with the expiration of the statute of limitations of criminal prosecution (Articles 24, 78 of the Code of Criminal Procedure), as well as law enforcement practice (paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 27.06.2013 N 19 "On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability responsibility"), which entails the impossibility of bringing the really guilty to justice if there is a long delay in initiating a criminal case.

Taking into account the above assessment, an effective mechanism in solving the designated issues of the stage of initiation of a criminal case, on the one hand, is the specification of criminal law norms by making appropriate changes to the articles of the General and Special Parts of the Criminal Code of the Russian Federation (in relation to Article 177 - with a clear definition of the concepts of malice, accounts payable, as well as the regulation of criteria for their determination) in order to eliminate the possibility of ambiguous interpretation at the stage of verification of a crime report and, accordingly, in order to eliminate additional opportunities for refusal to initiate criminal proceedings.

On the other hand, the criminal procedure norms themselves are subject to change, namely, the time has come for reforming Chapters 19, 20 of the Code of Criminal Procedure of the Russian Federation in order to bring the stage of initiation of criminal proceedings to the institution of the beginning of criminal proceedings, similar to the one that previously existed in the Code of Criminal Procedure of the RSFSR in 1922, 1923. In this regard, it is also possible to take into account certain provisions from the more developed civil procedure or arbitration procedural codes in Russia, for the initiation of proceedings on which formal compliance (by plaintiffs) with the procedures for filing a claim is sufficient, as well as in which the procedures for leaving applications without movement, their return to the applicant, leaving without consideration, are clearly regulated, in particular, the terms and procedure for appealing decisions are clearly regulated.

In order to reduce the "side effects" of abandoning the stage of initiation of a criminal case, I propose to discuss the possibility of introducing amendments to Article 306 of the Criminal Code of the Russian Federation to strengthen responsibility for committing a deliberately false denunciation in order to reduce unreasonably filed statements about a crime, as well as introducing into this article of the Criminal Code of the Russian Federation in the form of a separate part of the corresponding responsibility for deliberately false denunciation It involves accusing a particular person of committing a crime, which is due to the presence of an additional object - the honor and dignity of a particular person, and will strengthen the balance of interests of all participants in criminal proceedings.