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§ 2.1. INVESTIGATORY ACTIONS AS APPROPRIATE WAYS COLLECTING OF MATERIAL EVIDENCES

Having considered system of ways of collecting of proofs in criminal trial, we can approve, that, certainly, basic link in this system are investigatory actions. They are adapted for reception and transfer of a certain type of information, made directly by the inspector or the body which is carrying out the criminal trial.

Other ways of collecting of proofs play an auxiliary role. « Others »ways of collecting of proofs are more actively used at collecting of the evidentiary material for excitation (or refusal in excitation) criminal case. Importance of investigatory actions consists not only that they are ways of collecting of proofs, but they are still used and for check of the collected evidentiary material. For example, the victim presents a subject with material evidence signs. The inspector can check up an origin of this subject by investigatory action - interrogation of the specified person. Manufacture of those or other investigatory actions has the features depending on their specific targets on which performance they are directed, but all general rules concerning investigatory action are thus applied. Investigatory actions are made only in a statutory order. Actions of the inspector, the investigator, agency in charge of preliminary investigation on manufacture of investigatory actions are in detail regulated in criminally - the law of procedures. Thus the law in details establishes procedure, the maintenance of manufacture of investigatory action, paints, that should do the investigator, agency in charge of preliminary investigation, the inspector. Investigatory and legal proceedings on collecting of material evidences are made mainly after criminal case excitation, though ch. 1 item 144 UPK the Russian Federation provides large powers of the inspector, the head of the organ of inquiry, the investigator, agency in charge of preliminary investigation at reception and check of the message on a crime.

As writes S.B.Rossinsky, «the Code of Criminal Procedure of the Russian Federation uses the term« investigatory actions »in this or that context of 178 times. Thus the legislator for some reason evades from a formulation of legitimate definition of investigatory actions; such definition is not present either in item 5, or in other positions UPK the Russian Federation».

Here pertinently to agree with A.M.Larin's opinion: «In connection with absence of official treatment of various terms used in the law there are certain problems of the theoretical plan which are reflected subsequently and in practical activities, and interpretation attempts in the special literature are based on intuitive representations and pragmatical reasons more often and have under itself no system approach».

As the Russian Federation providing the basic concepts, used in UPK the Russian Federation follows from item 5 UPK, the legislator has differentiated all legal proceedings on investigatory, judicial and other legal proceedings. It is possible to assume, that it has made such differentiation concerning the corresponding subject - the inspector, vessels and other participant of the criminal trial. However the understanding of investigatory actions concerning the subject does not allow to establish concept of investigatory action as legal proceeding which is way of collecting of proofs. In this case investigatory action acts as a part of more capacious criminal procedure phenomenon, such as means of collecting of proofs, and those are not only investigatory actions, but also other legal proceedings of the suspect convicted, the defender who has sustained, the civil claimant, the defendant and their representatives on assistance to the inspector in collecting of proofs.

The told allows to draw a conclusion that any investigatory action is remedial and is not simple legal proceeding, and the action directed on collecting of proofs, their check and an estimation, thus not each legal proceeding is investigatory.

S.A.Shejfer has paid attention, that scientists in a criminal procedure science "investigatory actions" understand or in «wide sense», or in "narrow". In a broad sense concept "investigatory actions" are treated concerning the subject of activity, i.e. the wide sense covers all legal proceedings which are carried out by the inspector or the investigator, irrespective of their purpose and a problem. Therefore all significant legal proceedings of the inspector or the investigator admit investigatory.

So, A.M.Larin considered, that it is necessary to carry any to investigatory actions regulated UPK the Russian Federation activity during manufacture of preliminary investigation. I.M.Luzgin adhered to a similar position. He believed, that under «investigatory actions it is necessary to understand: 1) actions by means of which collecting and check (research of proofs) is carried out; 2) actions by means of which investigation process is regulated, are defined its borders, terms and a carrying out order; 3) the actions connected with a presentation of all manufacture on business to corresponding participants of process».

Supporters of narrow treatment "investigatory actions" consider only informative actions of the inspector, i.e. those investigatory actions which are directed on collecting new and check of already available proofs. So,

A.N.Gavrilov, S.P.Efimichev, V.A.Mihajlov and P.M.Tulenkov in the collective work devoted to investigatory actions, specified, that it is necessary to understand as them «provided by the criminal procedure law and set of operations provided with the state compulsion and receptions which are carried out at investigation of crimes for detection, fixings and checks of the fact sheet, important proofs on criminal case».

Close positions in definition of concept of investigatory actions as the actions connected with collecting and hearing of evidence, are traced in works N.S.Alekseeva, V.G.Daeva, L.D.Kokorev, A.B.Soloveva, V.A.Simeon - tsova and other authors.

So, I.E.Bykhovsky obosnovanno defined investigatory action as «a kind of activity of the inspector, consisting in detection, research, fixing and studying of the proofs, carried out according to special procedure».

O.J.Baev approving adheres to a similar position, that «all investigatory actions are remedial, but is far not all legal proceedings is investigatory as it is far not all of them are directed directly on proving and processing of the evidentiary information».

A.B.nightingale investigatory action defines as «the criminal procedure actions in details regulated by the law including in the structure system of operations, caused by presence and an original combination in each of them of general scientific methods the knowledge having co-operating informative and udostoveritelnye aspects (parties) both directed on collecting and hearing of evidence for the purpose of the decision of problems of the criminal trial».

In my opinion, it is necessary to support the most widespread judgement in remedial, and in the criminalistic literature that investigatory actions are «the legal proceedings directed on collecting (detection, fixing, withdrawal), research, fastening and hearing of evidence».

The most essential sign of investigatory action is that it is way of collecting of proofs. As in the course of their manufacture there is a knowledge the inspector of actual facts of business all investigatory actions are consolidated by a sign of informative essence. In activity on collecting of proofs by reflected system the traces left a crime in the world surrounding us, reflecting system - consciousness of the inspector are, and as a reflexion product, changed then the informative image which arises in consciousness of the inspector serves in the legal description or other reliable way. R.S.Belkin also has paid attention to it, specifying, that «of representation and concepts of the subject collecting the proofs, being display of the objective validity, have the objective maintenance and value».

Thus, as result of investigatory action reception of the potential evidentiary information which after its familiarising with criminal case becomes the proof serves.

Among scientists there are discussions concerning possibility of reference of all legal proceedings specified in gl. 24-27 UPK the Russian Federation, to a category investigatory, and therefore, according to S.A.Shejfera, «is required perfection of norms UPK the Russian Federation which are devoted investigatory actions».

According to S.B.Rossinsky, the criminal procedure law wrongly to number of investigatory actions carries arrestment on property, exhumation of a corpse, reception of samples for comparative research.

As it is represented to me, S.B.Rossinsky has fairly noted discrepancy of the criminal procedure law in this part, one of which reasons consists in uncertainty of the relation of the legislator to a category "investigatory actions". For example, ch. 2 items 164 UPK the Russian Federation in its system unity from item 9 ch. 2 items 29 and ch. 1 item 165 UPK the Russian Federation represents arrestment on property as investigatory action. One more reason of discrepancy consists in incorrect interpretation by some authors of separate positions ugolovnoprotsessualnogo the law as structurally exhumation and reception of samples for comparative research are included in those chapters and articles of the Code by which certain ways of remedial knowledge are regulated. Possibly, the legislator has carried out such construction of articles UPK as in the subsequent exhumation is connected with survey of a corpse, and reception of samples for the comparative analysis - with expert testimony in court manufacture. As it is fairly marked in the legal literature, such legal proceedings closely adjoin to investigatory, those thus not being. O.J.Baev names their "preinvestigatory" actions. It is necessary to agree with it, though we would name their auxiliary legal proceedings having obespechitelnyj character, but in any way investigatory as they have no informative value.

It is necessary to establish, that after the changes brought in item 144 UPK the Russian Federation by the Federal act of Russia from March, 4th, 2013 № 23-FZ, reception of samples for comparative research during check of the message on a crime is named by the legislator legal proceeding.

Arrestment on property is not connected with collecting of the evidentiary information, specification or acknowledgement of the available evidentiary information. It is not directed on an establishment of the new data important on criminal case. Arrestment on property in general is directed on the decision of other problems, for example, safety of property in cases of its possible confiscation, civil suit maintenance. Not having informative character, it is not investigatory action, and only remedial.

Exhumation of a corpse and reception of samples for comparative research condition for realisation of investigatory actions following them by means of survey of a corpse or expert testimony in court and carry purely obespechitelnyj character. They are legal proceedings, but they cannot be carried to investigatory, especially to such which are ways of collecting of material evidences.

So, investigatory actions then are ways of collecting of material evidences when as their primary goal detection and withdrawal of subjects and the documents which are potential material evidences serve, concerning the given criminal case.

The analysis of the special literature also testifies that the system of investigatory actions changes, it is not generated and cannot be generated up to the end, it can be transformed eventually. In this connection also ways of collecting of material evidences change, as there are new ways of fulfilment of crimes, criminals apply last achievements of science and technology, public relations develop, that inevitably attracts perfection of ways of reception of evidentiary data.

In the educational literature on sense of the criminal procedure legislation to the investigatory actions which purpose is reception of proofs, concern: « Survey of a scene, district, dwelling, subjects and documents; survey of a corpse; survey of the suspect convicted, the victim, the witness; investigatory experiment; a search; dredging; arrestment on pochtovo-cable departures, their survey and dredging; the control and record of negotiations; reception of the information on connections between subscribers and (or) user's devices; interrogation; a confrontation; a presentation for an identification; check of indications on a place; expert testimony in court manufacture ». However, in my opinion, not all from the listed investigatory actions have for an object reception of material evidences. For example, material evidences cannot be received by investigatory experiment manufacture as it as it is specified in item 181 UPK the Russian Federation, is spent with a view of check and specification of the data important for criminal case. Also a confrontation according to the item 192 UPK the Russian Federation is spent not for reception of new proofs, and for elimination of contradictions in indications before the interrogated persons.

G ovorja about investigatory actions, it is necessary to notice, that within the limits of separate investigatory actions their versions are allocated. For example, interrogation: interrogation of the suspect, interrogation convicted, interrogation of the defendant, interrogation of the minor, interrogation of the witness, interrogation of the victim. Or a search: a search in dwelling, a search indoors, a personal search. Or survey: scene survey, survey of a subject, the document having signs of a material evidence.

So, not all investigatory actions can be considered as ways of collecting of material evidences. Accurate representation about a circle of such investigatory actions in which course probably collecting of material evidences, has basic value for bodies of preliminary investigation as only with their manufacture the legislator has designated strictly certain consequences for the status of the found out subjects and objects. Manufacture of such investigatory actions leads to reception of the evidentiary information. Manufacture of investigatory actions in the pre-judicial criminal trial is the basic way of collecting of material evidences. This conclusion proves to be true results of the studying of 300 criminal cases spent by the competitor. In particular, the question was investigated: «What ways of collecting of proofs were applied at detection of material evidences at stages of preliminary investigation?» . By me it is established, that in pre-judicial manufacture in 252 cases (56,6 %) material evidences have been found out by manufacture of investigatory actions.

By means of separate investigatory actions, such as scene survey, a search, dredging, are found out the diversified subjects which in the subsequent can get the material evidence status. But for this purpose they should be collected in the appropriate way of collecting of material evidences.

Let's consider, what investigatory actions in pre-judicial criminal manufacture are appropriate ways of collecting of material evidences. To start research of investigatory actions as ways of collecting of material evidences it is necessary to pay attention that in the legal literature the concept of investigatory action is defined basically through set regulated by the law and carried out by the inspector search, informative and udostoveritelnyh of receptions and the operations adapted for search, perception and fastening of the fact sheet having evidentiary value on criminal case. At the same time the set of the informative receptions constituting an essence of investigatory action, differs depending on character of the concrete action, problems facing to it, and also concrete circumstances.

It is represented to me, that such investigatory actions which can be considered as ways of collecting of material evidences, are: survey; survey; a search; dredging; check of indications on a place; a personal search; arrestment on pochtovo-cable departures, their survey and dredging; the control and record of negotiations reception of the information on connections between subscribers and (or) user's devices. It is expedient to consider other investigatory actions verifying as they are not directed on reception of the evidentiary information. It is necessary to carry to verifying actions: investigatory experiment; a confrontation; a presentation for an identification; check of indications on a place; expert testimony in court manufacture. By manufacture of the specified investigatory actions probably establishment of circumstances important for criminal case, but ways of collecting of material evidences they are not.

The analysis of norms UPK the Russian Federation regulating manufacture of investigatory actions, has allowed to designate criminal procedure requirements to collecting of material evidences which represent unity of three components: 1) observance of the norms regulating the general procedure by the appropriate subject of preliminary investigation; 2) observance of the norms regulating the bases and the procedure of investigatory actions, in which course probably reception of subjects, documents, money, values, things, the traces displayed on various objects, with signs of the material evidences, appropriate remedial registration of these actions; 3) observance of the norms regulating an order and conditions of survey, a recognition of subjects and documents material evidences and their familiarizings with criminal case materials.

Remedial and criminalistic rules of search, detection and withdrawal of material evidences by manufacture such investigatory dej -

stvy as survey, the search, dredging, are in detail enough investigated and developed in the criminalistic and remedial literature.

The Russian Federation regulating the bases of manufacture of survey where it is specified directly specifies in survey as for a way of collecting of material evidences item 176 UPK, that survey is made with a view of detection of traces of a crime, finding-out of other circumstances important for criminal case. Thus, the legislator has defined a main objective of carrying out of investigatory survey - detection of the objects important for criminal case.

Generalisation of materials of archival criminal cases with a view of dissertational research has shown, that quality of survey of a scene (one of the most widespread investigatory actions in pre-judicial manufacture) not always meets the requirements of the remedial legislation that is not in the best way reflected in the activity directed on collecting of material evidences. Scene survey is spent quickly, is negligent, indifferently, without attraction of experts, and the scene record of search is constituted short and at times not clearly and even nechitabelno. Only on one example from practice it is possible to show, how many infringements the inspector supposes at scene survey, thereby leaving investigation on criminal case without the important material evidences.

Citizen SH was convicted of robbery fulfilment. On March, 7th, 2013 it went to 9 o'clock in the morning on the car on motorway FAD "caucasus". At a bus stop he has seen earlier unfamiliar T and has approached on a stop. T has approached to it and has asked to bring up it in a village. SH has agreed, but, having passed some distance, it has suddenly curtailed from the asphalted road and has called in in lesoposadku. Threatening with a knife, visors at T a bag and phone, and it has pushed out from the car. From a bag it has taken away 2 500 roubles, from phone has taken out a battery. A bag and phone has thrown out in lesoposadke, and itself has left. The inspector as a scene has examined a road site (and a scene of crime was lesoposadka) and has found out nothing, though during the further investigation (in criminal case materials there are some records of search of the crime scene) all the same has been examined lesoposadka where there was a crime. In a course of the already carefully spent investigatory action material evidences have been found out: phone without a storage battery and a female bag. The found out fingerprints of hands on metal parts of a bag have allowed to establish their accessory convicted SH which was earlier we judge for a similar crime. In criminal case materials there was one more record of search of a scene (more similar to the record of search) in which course the apartment convicted SH where the knife has been found out and withdrawn has been examined. Thus in the scene record of search there was no its any description. Similar examples are available in judiciary practice of Southern and North Caucasian federal districts.

Thus, properly spent and issued survey of a scene - the keystone to success in disclosing of crimes.

Confirming to the stated we will give an example from practice. On June, 10th, 2013 at 10 o'clock in the apartment № 4, located in the house № 22 on Michurin's street of settlement of Malorossijsky Tihoretsky area of Krasnodar territory, corpse M with plural bruises and body grazes, plural kolotorezanymi wounds has been found out. During scene survey, in particular corpse M, in the field of a forward surface of its thorax in a horizontal direction the strip of a painting adhesive tape is found out. At adhesive tape removal three wounds are found out. Later by examination it has been established, that death M has come from two koloto-rezanyh blind wounds: in the field of a thorax, in the field of a stomach. As a result of the spent actions it has been established, that the victim often took alcoholic drinks with neighbour S, living in apartment № 3 to the specified address. During drinking of alcohol S often beat the victim. At night since June, 7th, 2013 for June, 8th, 2013 Between them again there was a scandal. S in state of drunkenness it was knocked on apartment of victim M and demanded, that it has opened a door and has poured pohmelitsja. All has abated only for a midnight. During an apartment S search on a refrigerator "Orsk" in a metal pan the roll of a paper painting adhesive tape of light grey colour has been found out. On the specified roll on a diagonal rough failure of an adhesive tape is located. As a result of the carried out examinations it has been established, that the fragment of a sticky tape withdrawn at survey of a scene from a corpse of citizen M, and a sticky tape in a roll, withdrawn during an apartment search № 3 suspects S, constituted earlier a single whole. S after drawing nozhevyh wounds to the victim to stop blood, has stuck wounds with a sticky painting tape. Careful survey of a scene, studying of the found out subjects (in particular, a piece of the adhesive tape left the criminal on a corpse) have allowed to find quickly for the person involved in a crime in spite of the fact that murder has been made «in conditions neochevidnosti».

Studying of materials of criminal cases within the limits of dissertational research has shown, that inspectors forget the main appointment of survey of a scene - research and fixing of conditions of a scene, revealing, fixing and withdrawal of traces. Scene survey - the most frequent investigatory action in which course subjects are found out, documents, the things concerning business, allowing to establish circumstances of committing a crime. This conclusion proves to be true the questioning of practical workers spent by me which on the brought attention to the question «what Manufacture of investigatory actions, in your opinion, allows to find out most of all material evidences?» Have answered, that material evidences at survey of a scene and are flagrante delicto found out in 106 cases (45,1 %), and subjects, documents, things - potential material evidences at scene survey, dredging and a search together taken, have been found out in 218 cases (93 %).

The analysis of the considered 300 criminal cases also has shown, what exactly material evidences during scene survey more often are found out. So, at studying of criminal cases the question was investigated: «what Manufacture of investigatory actions has allowed to find out subjects and documents - potential material evidences?». It has been established, that in 153 cases (47,8 %) potential material evidences have been found out during scene survey. For this reason timely and qualitative carrying out of survey of a scene defines a successful course of a direction of investigation of a crime. Remedial rules of carrying out of the given investigatory action consider its originality, provide necessity to certificate the fact and circumstances of detection of subjects, and also presence at it signs which will be used in the course of proving.

Article 182 UPK the Russian Federation regulating the bases and the procedure of a search, provides, that the basis of manufacture of a search is presence sufficient given to believe, that in any place or any person can have crime instruments, subjects, documents and values which can matter for criminal case. The maintenance of the specified norm assumes an unequivocal conclusion, that the search is that investigatory action which can be considered as a way of collecting of material evidences.

The search as investigatory action consists in compulsory inspection of premises and other places, and also physical persons for detection and withdrawal of crime instruments, material and written evidences on business, search disappeared convicted or suspects, detection of a corpse or its parts, withdrawal of property and the values received as a result of committing a crime, for civil suit maintenance. The search is spent not only at the suspect convicted, but also at other persons who do not have to a crime the direct relation. Individual signs of a searched subject the inspector can and not the nobility, but it, going on a search, should know, that the relevant subject can be in a searched premise.

To investigatory practice cases when during a search subjects which did not concern business were found out are known, for example, the search was made for the purpose of knife detection as crime instruments on business about murder in summary the narcotic was revealed. In such cases the subject found out during a search forbidden to the free reference, should be withdrawn, though it has no relation to investigated murder. The search is made on the basis of the decision of the inspector after criminal case excitation. According to ch. 2 items 29 UPK the Russian Federation only court make the decision on search manufacture in dwelling. In cases, being urgent, the search can be spent without judgement reception. Subsequently, however, legality of the spent search should be confirmed in court.

The questioning of 235 practical workers carried out with a view of the present dissertational research has shown, what they do not see difficulties at search carrying out, whether as on the brought attention to the question «Are available, in your opinion, difficulty by search manufacture?» Following answers have been received: has positively answered 61 persons (26 %), it is negative - 165 (70,2 %), were at a loss to answer 9 respondents (3,8 %). The analysis of the considered criminal cases for 2012-2014 allows to establish, that all searches spent on these affairs, have been made only after judgement reception.

In spite of the fact that practical workers do not consider a search as difficult investigatory action for manufacture, we believe, that the search is a difficult investigatory action with the methods, receptions and rules. It is possible to carry suddenness, activity, regularity, a system, completeness and carefulness of a search, the account of the person to them searched, observation of the inspector, eventually, its persistence in search of a necessary subject. Observance of these principles leads, as a rule, to purpose achievement.

For example, K it was convicted of assignment of the money resources entrusted to it. It, being chairman TSZH (association of proprietors of habitation), has collected at proprietors of habitation money resources on repair of entrances. A part of money has spent for repair, and a part has appropriated. However fault in it did not recognise, approving, that repair of entrances has executed on all collected money, and it has corresponding documents on all expenses. Confirm or confute its arguments expert testimony in court for which carrying out the documents kept K in the apartment were required could. The inspector, having received a judgement, has conducted a search in apartment K and has not found out the necessary documents. After a while from tenants of the house the inspector has learnt, that K from a house cellar where it had an office, has transferred any things to apartment. The inspector with the big work has received again a new judgement, has conducted a search in apartment To. Also has found the necessary documents which have been recognised subsequently by material evidences. Expert testimony in court conclusions under the withdrawn documents were not in advantage To.

The search as a way of collecting of material evidences possesses ample opportunities. For example, upon murder of the deputy of the State Duma G.Starovojtovoj 40 searches which correspond with interrogation of 1 000 witnesses, have been spent by 26 dredging, 62 surveys, 104 examinations. According to a number of sociological researches, searches were spent on 65 % of all studied criminal cases.

A little bit other picture develops concerning a personal search which as the search version is investigatory action, that directly and directly follows from the law. The Criminal procedure law of Russia includes a personal search in system of investigatory actions and provides an order of its manufacture. Thus, it is necessary to recognise a personal search as way of collecting of subjects and documents as potential material evidences.

The personal search is specific enough legal proceeding. Its legal nature is difficult, and application practice is not always lawful. Often personal search is spent under cover of other, more "reliable" and less expressive legal proceedings in the compulsory relation (scene survey, premise survey, survey) or measures of is administrative-legal character (personal inspection, examination of things as administrative-jurisdiktsionnogo manufactures). Thus the rights of searched persons are roughly broken, and the received results raise serious doubts at an estimation of their evidentiary value.

Practically there are no barriers to investigating agencies and inquiry in reception of proofs by substitution of one investigatory actions by others, imitation of investigatory actions. The analysis of the studied criminal cases pays attention to a variety of objects which look round inspectors as a scene. In one case it is an office of the divisional where on a table the gun belonging to the citizen is revealed, in other case scene survey specifies the document with fake signs, and about narcotics which are everywhere found out by scene survey, there is no sense to speak.

Confirming to the stated we will give an example. Citizen V in February, 2014 at dismantling of an old shed has found out a fowling piece, has truncated it and has hidden at home for a private use. And after a while, having decided to do some shooting dogs, took a sawn-off shotgun of a fowling piece and has gone on a village to search for cartridges at familiar hunters. However in the street has been stopped by the divisional of police whom having noticed at V the "sticking out" subject under a jacket, has resulted it in the office where has found out at V behind a belt of trousers under a jacket fire-arms about what has executed not the process-verbal of a personal search which the scene record of search as has actually spent, and legality of the given investigatory action, i.e. scene survey at anybody does not raise the doubts. The scene in the report had been specified an office of the divisional where on a table the sawn-off shotgun of a gun which belongs to Century has been found out

It is necessary to notice, that the way of collecting of material evidences of each kind is intended and adapted to provide necessary reliability of the received information in the concrete form. Material evidences should be received in the appropriate way. Here pertinently to result J.V.Hudjakovoj's position. She considers, that an appropriate order of reception of data and source formation in which these data should contain, assume appropriate (statutory) ways of collecting, fastening, check and evaluation of evidence.

The special group of ways of "detour" of rules of admissibility of evidence is represented by interbranch ways. Speech in this case goes about the proofs collected within the limits of relations, regulated by other branches of law, but "converted" in criminal procedure proofs. Already there was classical a reception of law enforcement bodies on withdrawal of narcotics

At the person when within the limits of item 27.7 KoAP the Russian Federation is spent personal inspection of the person. Presumably the narcotic is withdrawn at understood, and the process-verbal of personal inspection and examination of the things which are at the person is executed. Subsequently this report along with other documents lays down in a basis dosledstvennoj preliminary check by which results criminal case is initiated. Thus courts accept the given report of personal inspection and among other proofs use for the decision of a verdict of guilty.

The Supreme Court of the Russian Federation, unfortunately, has supported the specified practice. So, in appeal definition under complaints of defendants K and of the Russian Federation recognised an admissibility of the material evidences extracted during personal inspection, and has specified: «Withdrawal of clothes B on which there were traces of brown colour, is made during personal inspection, on purpose to avoid possible destruction of the found out traces».

Our research on a question «What kinds of crimes were considered by vessels?» By studying of 300 criminal cases has shown, that 34,4 % from the general number of the affairs considered by vessels of regions covered by research, are the affairs connected with illegal circulation of narcotics, the weapon, an ammunition and explosives and devices, from them the illegal acts connected with narcotics and psihotpropnymi by substances, constitute 25 %. Almost on all affairs connected with illegal circulation of narcotics, the weapon, an ammunition (78,6 %), material evidences - narcotics, the weapon and an ammunition have been received within the limits of administrative-jurisdiktsionnogo manufactures, i.e. out of criminal trial when it was required to initiate criminal case and to conduct a personal search. Results of the researches spent by the author testify that it is necessary to settle more accurately at legislative level introduction process in proving of the subjects which have been found out at a stage of excitation of criminal case.

The examples resulted above, results of studying of criminal cases and questioning of practical workers allow to establish infringements of the remedial legislation by manufacture of a personal search, on which inspectors go forcedly in view of absence in the norm current legislation about granting to the investigator, to the inspector and other authorised persons of the right to make a personal search before criminal case excitation when in it there is a necessity, and delay does its irrelevant.

V.N.Kornukov, R.S.Valiev write: «... It would seem, that legislative fastening of a personal search at a stage of excitation of criminal case in the conditions of strengthening of legal protection of the rights, freedom and legitimate interests nevozmozh - but». Meanwhile, in their opinion, the given position is erroneous for following reasons. «First, not any interdiction is good in itself because not always excludes possibility of manufacture of corresponding actions under more plausible excuse. Secondly, the practical requirement for withdrawal of subjects, documents and values before criminal case excitation as it was already specified, satisfied at the expense of carrying out of personal inspection, survey of a scene and other actions by which manufacture are not observed and are not provided the rights, including constitutional, persons at whom withdrawal of the specified objects» is made.

Not supporting to the full given position, we will notice, that KoAP the Russian Federation contains appropriate guarantees of maintenance of the rights of the screened person in the form of presence understood one floor with it, carrying out of the given action by the same-gender official with screened (ch. 3 items 27.7 KoAP the Russian Federation), possibility in «a necessity case to apply a photo-and filming, other established ways of fixing of material evidences» (ch. 5 items 27.7 KoAP the Russian Federation), executing a process-verbal of examination and delivery of its copy screened under its request (ch. 8 items 27.7 KoAP the Russian Federation).

Except a personal search as independent investigatory action, the law provides a personal search at detention of the suspect.

The research of judiciary practice spent by A.P.Aleninym, has shown, that from 557 condemned on the criminal cases studied to them for a drug trafficking concerning 87,4 % of these persons the personal search was conducted at their detention. It has been thus withdrawn 767 objects concerning considered structures of crimes.

These data confirm, that a personal search - the phenomenon frequent enough, but it is spent basically at detention of the person or its conclusion under guards, and also in the presence of good causes to believe, that the person who is in a premise or other place in whom the search is made, hides at itself subjects and documents which can matter for criminal case. And such personal search can be made without the corresponding decision that is directly provided item 184 UPK the Russian Federation.

Proceeding from the analysis ch. 1 and ch. 2 items 184 UPK the Russian Federation, a personal search can be spent not only concerning suspected and convicted, but also concerning the witness, the victim and is simple the by-stander who has casually appeared in a place of manufacture of a search in a premise or other place (for example, a vehicle search). During studying of 300 criminal cases the question «What persons was investigated were exposed to a personal search?». It has been established, that all on the specified affairs 130 personal searches (100 %) have been spent, suspects there were 96 persons (73,8 %), also to a personal search have been subjected 34 convicted, that constitutes 26,2 %. Other persons were not exposed to a personal search, from what follows, that in practice to a personal search subject suspected or convicted.

As it was specified earlier, according to item 184 UPK the Russian Federation at detention the personal search can be made without the judicial decision, and according to item 92 UPK the Russian Federation results of a personal search are specified in the detention report. Here there is a question: whether there can be a detention appropriate way of collecting of material evidences?

Considers, that detention by appropriate way of collecting of material evidences is not. As a way of collecting of material evidences legal proceeding (investigatory, other legal proceeding), directed on detection and withdrawal of subjects and the documents can be considered, able to matter for criminal case. Detention is the coercive measure.

The question concerns number debatable in a criminal trial science: whether is detention by investigatory action or only a measure of remedial compulsion?

For example, A.V.Olshevsky approved, that detention is only a measure of criminal procedure compulsion. However, further in the reasonings in dissertational work on competition of a scientific degree of master of laws A.V.Olshevsky speaks about evidentiary value of detention, but nevertheless the investigatory action status behind it does not recognise.

V.V. Bychkov also does not consider detention by investigatory action and carries it to measures of remedial compulsion.

Some scientists, for example, V.M.Bykov, E.S.Zhmurova, consider as investigatory actions detention and arrestment on property.

Similar discussions take place among scientists not only Russia, but also abroad. For example, in the Kirghiz Republic discuss necessity of use of remedial registration of detention for direct collecting of the proof, though according to gl. 11 UPK the Kirghiz Republic detention is carried only to measures of remedial compulsion.

We are convinced, that detention, as well as arrestment on property, is not that legal proceeding which can be used as a way of collecting of proofs, especially material.

O.J.Baeva and D.A.Solodova's judgements that «detention has the purpose a possibility exception are proved to influence investigation, thereby to provide an appearance of the person to the inspector». Difficulties in practice for pravoprimenitelja create actions on entering into the report of detention of results of the spent personal search of the arrested person as by manufacture of such personal search potential material evidences can be found out. So, reports of detention among other accusatory proofs have been taken by some vessels as a principle a sentence at a substantiation of validity of fault of the defendant. With it, in my opinion, it is impossible to agree in any way. The detention report can be considered as the remedial document reflecting two legal proceedings as in it the fact of detention of the person, and results of a personal search of the arrested person is fixed also, but it is not the proof on criminal case.

Proceeding from item 11 of item 5 UPK the Russian Federation, a main destination of detention of the suspect is election concerning it a preventive punishment. During too time manufacture of a personal search in which course subjects and documents - potential material evidences can be found out is carried out. Thus the fact of their detection is fixed in the detention report. In this connection separate protsessualisty carry detention both to measures ugolovnoprotsessualnogo compulsions, and to investigatory actions on collecting and fastening of proofs.

Probably A.B.Ryzhakov proceeds from the same reasons, speaking about «detention of the suspect simultaneously as investigatory action and a measure of remedial compulsion». It is necessary to notice, that later it has changed the opinion and did not rank detention as investigatory actions.

Like it would be necessary to agree with A.B.Ryzhakova's arguments as detention pursues only one aim - maintenance of an appearance of the person to the inspector and is not investigatory action. However why even more often defenders address with petitions to court about an exception of the report of detention as incompetent evidence? The given question was a subject of the carried out research at studying of 300 considered criminal cases. Questions «How many all reports of personal searches were found out it is revealed in materials of criminal cases?"And"what remedial documents on manufacture of a personal search contain in criminal cases?». Results the following: 130 personal searches (100 %) are spent, 34 reports of a personal search as independent investigatory action from the leave of court (26,2 %) are constituted, and also 96 reports of detention with results of the spent personal search without a judgement (73,8 %) are established. Also following questions were found out: « Whether petitions for a recognition of reports of detention with results of a personal search incompetent evidences were declared? "," whether reports of detention with results of a personal search of the arrested person Admitted court under petitions of protection by incompetent evidences? ». It is as a result established, that 27 petitions for a recognition of the report of detention with results have been declared prove -

dennogo a personal search the incompetent evidence (28,1 %), it is satisfied by court only 2 (7,4 %), are not satisfied - 25 (92,6 %) 126.

It is necessary to recognise legitimacy of action of that court which does not satisfy similar petitions as the detention report cannot be excluded from criminal case materials, at least because it, eventually, certificates the fact of detention of the person (especially if it is spent lawfully, with observance of rules of the item of item 91-92 UPK the Russian Federation). And still it is necessary to think of arguments of defenders, whether so they are groundless? How to arrive to defenders if the detention report contains very important evidentiary information including about material evidences with which the defender and convicted (defendant) do not agree? It is a question of subjects and the documents extracted during a personal search of the detained suspect which results are reflected in the detention report.

Considering lawful regarding refusal in a recognition of the report of detention by the incompetent evidence, nevertheless it is necessary to pay attention of action of court that, refusing in satisfaction of the petition of the defender about an exception of materials of criminal case of the report of the detention containing results of a personal search spent at detention, the court to the sentence decision actually does a conclusion about an admissibility of these material evidences extracted during a personal search, made at detention that mismatches main principles of the criminal procedure legislation.

We believe, to correct such position it is possible if to provide in UPK the Russian Federation registration of a personal search of the suspect spent right after of detention, the separate report of a personal search of the arrested person. For the decision of this question the maintenance of item 93 UPK the Russian Federation is necessary («the Personal search of the suspect») to add with following words: «By results of a personal search of the suspect the separate process-verbal is executed». And from ch. The Russian Federation («the Order of detention of the suspect») is considered expedient to exclude 2 items 92 UPK words «results of its personal search». In that case it is not necessary to vessels in sentences

To refer to the report of detention containing results of a personal search, as the proof of fault of the defendant.

Importance of collecting of material evidences in the course of proving consists that all other actions with proofs are carried out concerning already collected proofs. Therefore the inadequate way of collecting of material evidences, non-observance of requirements to its carrying out attract a recognition of these proofs inadmissible.

Practice shows, that the personal search is urgent investigatory action especially on the affairs connected with illegal circulation of narcotics, the weapon and an ammunition, reception or bribery, at fulfilment of thefts or crimes of violent character., For example, on the affairs connected with illegal circulation of narcotics, many researches are devoted questions of a personal search of citizens. Most full this question is studied by G.M.Meretukovym.

Personal searches in practice are made often, but mask other more indisputable investigatory actions, such, for example, as scene or district survey that proves to be true materials of the studied archival criminal cases.

For example, N approximately 5 years ago has illegally got a rifle and stored it at itself in apartment, and has then decided to hide it in garage. Having hidden a rifle under hollow jackets, about 23 hours it has gone to garage. But on its way there was a divisional who has stopped it, has resulted in the office where has withdrawn from it a rifle. The personal search has actually been conducted, but detection and rifle withdrawal have been issued by the scene record of search. Thus the office of the divisional where on a desk air rifle МР-512 of calibre of 4,5 mm 0251200479 has been found out, prinad was a scene

The laying N.Ostaetsja a riddle how the office of the divisional became a scene how this rifle has got to it on a table and why it belongs N?

Let's result other example. M it is condemned by court for illegal acquisition and storage without a narcotic sales objective in the considerable size. On August, 23rd, 2014 about 19 hours it has been stopped in the street, delivered in point of police of a village Arkhangelsk Tihoretsky area of Krasnodar territory, and during personal inspection in it have found out 28 grammes of marihuana. As follows from business materials, personal inspection has been made, and the fact of detection of a narcotic is fixed by the report dostavlenija. However the given actions by way of collecting of material evidences by the criminal procedure legislation are not provided.

If to reflect, detention of the suspect, process of registration of detention attract not only manufacture of a personal search. During detention it is actually examined things of the arrested person. Manufacture of the specified action in general remedially is not fixed also by any documents not made out, its results are not fixed. In other words, substitution of one investigatory action by another, manufacture of inadequate investigatory action lead to loss of evidentiary value of the received material evidence.

The analysis of the scientific literature, judicial and investigatory practice allows to draw following conclusions: 1) the personal search is not only urgent, but also irreplaceable investigatory action; 2) the personal search urged to provide search, withdrawal and fastening of subjects, the documents, able to matter for criminal case; 3) subjects, the documents withdrawn during a personal search, should be examined, checked up, estimated, packed, are sealed, assured by signatures of the inspector on a survey place, at presence on that of the bases are recognised by material evidences and are attached to materials of the criminal

Affairs; 4) the legal nature of a personal search is dual: on the one hand, this investigatory action, and with another - a measure of criminal procedure compulsion; 5) in system of operating standard regulation the personal search in the criminal trial cannot be substituted by analogy for actions, adjustable norms of other branches of law, in particular, personal inspection.

The following investigatory action which is of interest within the limits of our research, dredging which is very close by the nature to a search as by its manufacture subjects and documents with material evidence signs can be found out is. Unlike a search, dredging assumes not search of objects, and only withdrawal at physical and legal bodies of subjects important for business and the documents which site already precisely is known. Dredging is undertaken also for the purpose of withdrawal of samples for comparative research. Seizure of documents, components secret protected by the law, is spent on the basis of a judgement.

Within the limits of the spent questioning of 235 practical workers the following question was asked: «what Manufacture of investigatory actions, in your opinion, allows to find out most of all material evidences?». Such investigatory action as dredging, it has been named often enough - in 73 cases (31,1 %) 131. Results of questioning allow to establish, that scene survey, a search and dredging - investigatory actions which form the basic part of material evidences on criminal case.

To investigatory actions which can represent for us interest, survey concerns. In the legal literature as to a way of collecting of material evidences not enough attention is given survey. In survey problems were engaged A.R.Belkin, V.G.Glebov,

J.G.Torbin, A.P.Ryzhakov, so-called SHamonova and some other scientists, however problems of manufacture of survey remain not resolved and to this day.

One scientists-protsessualisty approve, that survey is one of kinds of investigatory survey, proving the point of view to that at them identical methods of knowledge. Others object and approve, that survey is independent investigatory action, giving reason for the position to that at these actions (investigatory survey and investigatory survey) a various remedial order of their carrying out (for carrying out of survey by the inspector the decision is taken out); various tactical receptions as survey is connected with belittling of advantage of the person.

Survey on the informative receptions is similar to survey, but survey of special object - the live person. Consideration of the person as special object of survey, necessity of observance of its rights and interests, and also ethical standards and rules do survey by independent investigatory action in which course objects with signs of material evidences can be found out, for example, washouts from hands, a cut of nail plates with podnogtevym contents, even can sometimes be obnaru

Wives in intimate places of the person narcotic средства135. Practice testifies that the given way of collecting of subjects, substances which can be recognised by material evidences, is carried out seldom enough. It proves to be true results of the questioning of 235 practical workers spent by me, whether which on a question «is frequent, in your opinion, survey as a way of collecting of material evidences is made?» Have answered as follows: the negative answer of a distance 184 respondents (78,3 %), positive - 36 (15,3 %), were at a loss to answer 15 respondents (6,4 %).

From nedoponimanija essence of survey practical workers often make washouts from hands, cuts of nail plates and other actions at the suspects convicted, incorrectly making out these actions, namely as reception of samples for comparative research. These and others uncertainty force practical workers to search for the most simple decisions, and survey in the course of proving use reluctantly.

For decision-making on survey manufacture, as well as any investigatory action, it is necessary to define the purposes, the bases and an order of its manufacture. According to item 179 UPK the Russian Federation survey is spent «for detection on a body of the person of special signs, traces of a crime, physical injuries, revealings of state of drunkenness or other properties and the signs important for criminal case if for this purpose it is not required expert testimony in court manufactures».

The remedial nature of survey during the different periods was defined differently. If to speak about Soviet time survey considered as a survey version. And to such point of view adhered M.S.Strogovich, M.A.Cheltsov, S.D.Karev, P.S.Tarasov-Rodionov, A.I.Vinberg,

G.M.Minkovsky. Before acceptance UPK RSFSR 1960 survey was considered as: 1) a version of survey of the live person; 2) a version of medicolegal, judicial-psychiatric examination. UPK RSFSR considered survey already as independent investigatory action, regulating it in item 181 1960.

Article 144 UPK the Russian Federation names survey among those actions which can be made at a stage of excitation of criminal case. But at once there is a problem as in item 179 UPK the Russian Federation it is specified, that survey can be made concerning the suspect convicted, the victim, and also the witness. And at a stage of excitation of criminal case still there are the suspects convicted, no sustained and other persons. Certainly, in item 179 UPK the Russian Federation it is specified, that in cases, being urgent, survey can be made before criminal case excitation, but thus the legislator does not give concept «cases, being urgent».

In item 179 UPK the Russian Federations are fixed two purposes of survey: detection of traces of a crime and revealing of state of drunkenness, and also other properties and the signs essential to criminal case. Some authors notice, that on a body of the person it is possible to recognise traces as material evidences. It is obviously possible to agree with the specified opinions if such traces are presented in the form of various microobjects: "microparticles", "microtraces" and «microquantities of substance», i.e. material formations of the small parametres connected with event of incident, collecting and which research is inconvenient and it is impossible without application of special means. For example, contents of nail cuts can be considered as a material evidence.

Among scientists there is no common opinion concerning withdrawal of traces of a crime by survey manufacture. One authors consider, that the survey subject includes only detection of traces of a crime, and their withdrawal can be made only by manufacture of a personal search. Others, on the contrary, believe, that during survey it is possible not only to withdraw crime traces, but also to examine clothes in which it is dressed osvidetelstvue - myj, for the purpose of comparison of traces on clothes.

We are inclined to agree with opinion of the second group of the scientists considering, that within the limits of survey probably and to examine clothes of the person which is exposed to survey, and to withdraw crime traces as the purpose of the survey is detection of traces of a crime.

Further, item 144 UPK the Russian Federation provides possibility to examine subjects and to withdraw them in an order established by the Code. For elimination of some ambiguities arising by manufacture of survey, agreeing with V.A.Sementsovym, we suggest to add item 179 UPK the Russian Federation with possibility of manufacture of survey of clothes osvidetelstvuemogo, and also withdrawals of the subjects important for criminal case. Stated allows to make the proposal on inclusion in item 179 UPK the Russian Federation new ch. 1.1 following maintenances:

«1.1. With a view of detection and withdrawal of subjects, documents, the substances important for criminal case, the inspector, the investigator examine clothes osvidetelstvu - emogo with the subsequent check and an estimation of results by rules of the present Code. Scientific and technical means» can be if necessary used.

We believe, that nedootsenivanie survey roles in system of ways of collecting of material evidences it is inadmissible, as during the specified investigatory action subjects, substances with the material evidence signs, having crucial importance for crime investigation can be found out, fixed and withdrawn.

The stated allows to come to conclusion that survey is independent investigatory action in which course the subjects able further to become by material evidences can be found out. It can be spent and before criminal case excitation. During survey are supposed survey of clothes of the person osvidetelstvuemogo and withdrawal of the subjects important for criminal case. Unfortunately, in practice of possibility of the given investigatory action for reception of material evidences to the full are not used.

Objects with prospect of their recognition material evidences can be found out further by arrestment manufacture on pochtovo-cable departures, their survey and dredging as truly specifies N.N.Egor.

It is necessary to recognise, that the Russian Federation provided in item 185 UPK possibility of manufacture of such investigatory action as arrestment on pochtovotelegrafnye departures, their survey and dredging, in enough powerful degree limits fundamental laws and freedom of the person and the citizen.

According to ch. 2 items 23 of the Constitution of the Russian Federation everyone have the right to the privacy of correspondence, telephone conversations, post, cable and other messages. With the specified position of the Constitution of the Russian Federation, having the higher validity and direct action, korrespondirujut positions of item 13 UPK the Russian Federation according to which the specified restriction of the right of the citizen is supposed only under the decree. Besides, according to Federal act item 15 «About a mail service» the privacy of correspondence, the post, cable and other messages entering into a field of activity of operators of a mail service, is guaranteed by the state. In communication by it it is necessary to underline once again, that survey and opening of items of mail, survey of their investments, and also other restrictions of secret of communication are supposed only under the decree.

Close interpretation of position of item 185 UPK the Russian Federation leads to thought that the purpose of manufacture of the given investigatory action is detection, and in necessary cases and withdrawal of subjects and documents with signs of material evidences.

Arrestment on pochtovo-cable departures, their survey and dredging is a difficult (complex) investigatory action which is presented by algorithm of three legal proceedings: arrestment on pochtovotelegrafnye departures, their survey, dredging. Arrestment on pochtovotelegrafnye represents departures established on relations establishments will lock to send or transfer to the addressee the concrete correspondence which is specified in the corresponding remedial document, without the permission of the person or the body which has seized. Survey of pochtovo-cable poisonings represents acquaintance with the maintenance of the text or contents of a parcel, the parcel post or other departures.

Dredging is a withdrawal and the subsequent familiarising with materials of criminal case of subjects and the documents concerning criminal case.

In item 185 UPK the Russian Federation directly it is not specified, it is necessary to recognise as what kind of proofs the withdrawn pochtovo-cable departures, however from sense of given article, and also taking into account signs of material evidences the answer to this question will depend on a kind of pochtovo-cable departures. It is represented, the withdrawn telegrammes, radiogramms should be carried to other documents as they are issued by workers of pochtovo-cable establishment, instead of the sender, and therefore do not contain material evidence signs. And here letters, parcels, parcels post and so forth can be attached to criminal case as a material evidence. If inspector the maintenance of the letter or the address of the sender for the purpose of an establishment of a site of the criminal or without a message of the gone person in case of its search such object joins criminal case as other document interests only. When in the given objects interest of the inspector is caused by the material information containing in this object and furthermore if the object possesses the signs specified in item 81 UPK the Russian Federation (for example, the parcel is signed to the suspects convicted, and also parcel contents - narcotics) such object should admit a material evidence.

On sense of item 185 UPK the Russian Federation arrest can be imposed on pochtovotelegrafnye departures as physical persons, and the organisations, both on entering, and on proceeding departures. However in item 1 ch. 3 items 185 UPK the Russian Federation are specified: «In the petition of the inspector for arrestment in pochtovo-cable departures and manufacture of their survey and dredging are specified: 1) the surname, a name, a patronymic and the address of the person, which pochtovo-cable departures should be late». From this follows, that the given investigatory action can be carried out only concerning the physical person.

Arrestment possibility on proceeding pochtovo-cable departures in practice is inconvenient, as the item of mail the person can be made from any post office of communication without a binding to its residence or registration. To foresee the concrete post division of which services the person can take advantage, it is practically impossible. In my opinion, pravoprimenitelju it is necessary to know, that the given investigatory action is possible only concerning physical persons, and only concerning incoming documents.

Investigating the specified investigatory action as a way of collecting of material evidences, we have paid attention to that fact, that in a legal field, except the specified investigatory action, still in FZ «About operatively-search activity» it is provided practically identical not only on the terminology, but also on the substance of realisation procedure such operatively - search action, as the control of items of mail, the cable and other messages which results after known procedure of the "legalisation" established by the instruction about an order of representation of results of operatively-search activity to agency in charge of preliminary investigation, to the inspector or in court from September, 27th, 2013, can be used in criminal procedure proving.

We believe, it is made by the legislator to expand powers of the inspector, having accorded it a right not only to initiate investigatory action manufacture, but also to make realisation «operatively-search action in remedially-legal regime». Such decision of the legislator is caused by necessity of struggle against illegal circulation of narcotics and psychotropic substances that is made often enough recently by the order of narcotics on the Internet and their reception by means of a mail service. Observance of procedure of carrying out of this difficult investigatory action will lead to reception of material evidences by appropriate way and will promote an establishment of actual facts of business.

Similar conclusions are fair and for the analysis of such actions as the control and record of negotiations, reception of the information on connections between subscribers and (or) user's devices which obosnovanno are included in system of investigatory actions of O.V.Gladyshevoj and V.A.Sementsovym along with arrestment on pochtovo-cable departures, their survey and I will eat away - which. These actions also have difficult operational structure as which components the legislator specially allocates legal proceedings of the inspector with the received soundtrack of record of negotiations or a data carrier about connections between subscribers and (or) user's devices. Not casually and 186.1 UPK the Russian Federations are entered into texts of articles 186 of a part 8 and 6 accordingly, establishing rules of fastening of the status of material evidences behind the given sources of the information.

Considering a question on investigatory experiment reference to ways of collecting of material evidences, pertinently to result N.N.Egorov's opinion which considers, that «by investigatory experiment manufacture material evidences» cannot be found out. According to A.A.Rjasova, investigatory experiment is that investigatory action in which course material evidences can be received. For example, if convicted of forging of documents expresses desire to repeat the actions and to make of experiment counterfeit prints of the seals or stamps the objects made by it can be attached to materials of business in quality of a material evidence. As it is represented to me, A.A.Rjasov is not right, as is not right and A.N. Smiths which considers, that «in some cases by investigatory experiment manufacture it is possible to receive new material dock -

147

zatelstva ».

Investigatory experiment has absolutely other purpose. It is represented, that on sense and the maintenance of item 181 UPK the Russian Federation investigatory experiment is made with a view of check and specification of the fact sheet available and fixed remedial by as proofs and attached to materials of criminal case. It is directed not on reception of the new evidentiary information, and on check and specification of already received evidentiary information for the purpose of finding-out of possibility of its application as the admissible proof. This investigatory action in which conditions and other circumstances of investigated event for check by practical consideration are reproduced, specifications of the data important for business (item 181 UPK the Russian Federation). The investigatory experiment essence as investigatory action consists in skilled research of the separate events, allowing to establish existence possibility in the past of certain events, the phenomena, and also in check of the data received at interrogations convicted, of the suspect, sustained, witnesses. This one of the most difficult investigatory actions demanding huge efforts by its preparation, manufacture and fixing of results. Thus it one of the most informative, but in an ideal kind cannot be way of collecting, i.e. reception of subjects, documents as material evidences. The given investigatory action can be way of acknowledgement or a refutation of proofs already available in business.

Investigatory experiment, as a rule, is spent with a view of check of the version, check of indications of the victim, the witness suspected, more often in case of road accident at check of visibility of obstacles or possibility establishments to leave a vehicle. The analysis of judicial and investigatory practice confirms, that investigatory experiment more often at a preliminary investigation stage spend on the facts of thefts and road and transport incidents, and in the trial court or by manufacture in court of appeal instance the question on legitimacy of the investigatory experiment spent on preliminary investigation is solved.

The fact established as a result of questioning of 235 practical workers which in the majority consider investigatory experiment as verifying investigatory action with a view of acknowledgement or a refutation of data available on business is interesting. Whether on particularly brought attention to the question «Is, in your opinion, appropriate way of collecting of material evidences investigatory experiment?» The negative answer of a distance of 197 respondents (83,8 %), affirmative - 27 (11,5 %), were at a loss to answer 11 persons (4,7 %).

Thus, investigatory experiment cannot be way of collecting of material evidences. In practice last years the given investigatory action is not spent almost. It speaks, in my opinion, in - the first as already it has been told earlier, complexity of its carrying out, and secondly, discrepancy formulated in UPK the Russian Federation essence and problems of this investigatory action.

We believe, check of indications on a place has not for an object detection of material evidences, therefore it is impossible to agree with A.A.Rjasova's statement, that «material evidences can be found out at carrying out of such investigatory action, as check of indications on a place». Thus he approves, that «the fact of detection of a trace or a subject during check manufacture should be reflected in the same report of investigatory action». He offers «fixing of results of survey of the found out subject in the same report of check of indications on a place». Considering A.A.Rjasova's arguments, it is possible to speak about carrying out possibility in criminal trial of investigatory actions with difficult structure, the so-called mixed investigatory actions, such, for example, as "experiment-survey" or "survey-search".

Such investigatory actions, on our deep belief, should not be, as there is a merge of the received information that leads to the new information which can be recognised further by inadmissible as it is received in an inadequate order. Besides, measures of maintenance of an order of carrying out of various investigatory actions are diverse, that also does association of actions impossible.

Challenging A.A.Rjasova's statement, we will result N.N.Egorov's opinion which notices, that «at check of indications on a place the person shows certain actions. Extraneous intervention in a check course is inadmissible». In my opinion, research of the specified places during check of indications on a place just also will be such intervention.

The opinion on that check of indications on a place is way of collecting of material evidences, wrongly. Really, frequently check of indications is spent on a place which did not look round earlier, therefore during its carrying out objects with material evidence signs can be found out. In this case, in my opinion, the inspector should suspend investigatory action - check of indications on a place for manufacture of other investigatory action, for example, scene survey. It will allow to enter correctly into criminal trial a subject which further, probably, will be recognised by a material evidence, will stand good in law, as the found out subject will lawfully get the material evidence status. Such position is represented to me correct. The offered actions in case of detection of the subjects, able to matter for criminal case, do not contradict position ch. 2 items 194 UPK the Russian Federation that «extraneous intervention in a course of check and leading questions are inadmissible» as they cannot be considered as intervention in a course of check of indications on a place. And here incorrectly issued fixing of the found out subject with material evidence signs calls into question its legal importance for business.

For an illustration we will give an example. M and K were convicted of fulfilment of stealing of the car. At night they have climbed through through a fence and from garage have pushed out on street the car, have got it and have gone on small river where have broken from the car the state licence plate and somewhere it have thrown, and continued to go for a drive. In the morning they have thrown the car on village suburb. During preliminary investigation K has agreed to participate in carrying out of check of indications on a place. To - gda the given investigatory action on a tree growing on the bank of small river, the state licence plate of the stolen car has been found out was spent. The fact of detection of the given subject recognised further as a material evidence, the inspector has illegally fixed in the same report of check of indications on a place.

We believe, that the found out licence plate of the car from the specified example of investigatory practice has been entered into criminal trial with infringement of requirements of the criminal procedure legislation. If on a place the inspector has suspended check of indications, would spend other investigatory action - scene survey then the found out subject lawfully would get the status of a material evidence and stood good in law. By consideration of the specified criminal case the court has referred to the found out licence plate as on a material evidence of charge M and K in fulfilment of stealing of transport, that, in my opinion, is illegal. Anybody from litigants has not declared the petition for a recognition of the given material evidence to the inadmissible. Court under own initiative of it to do did not become. Possibly, the court, estimating all proofs in aggregate, doing a conclusion about guilt of persons in committing a crime, has counted in this case not basic the fact of reception of a material evidence as inadequate way, however the criminal procedure law as any another, demands its exact observance. Unfortunately, the law does not oblige the judge at the sentence decision to state an estimation to each material evidence on an admissibility, reliability, sufficiency. In the presence of such requirement in the law the question on ways of collecting of material evidences would pass in the category essential and then the material evidences collected in the inadequate way, would become inadmissible and would be excluded from evidentiary base. Probably, on the given case the exception of licence plate of proofs as inadmissible would not affect court conclusions about guilt of defendants in committing a crime as in criminal case, and further during examination during trial other indisputable proofs (including the material have been presented court in sufficient volume: the finger-prints of defendants left on the car, the personal things of the persons involved in the criminal liability) found out in the car, the bases giving to court to enact a verdict of guilty. But, in my opinion, the given position of court which are not giving values to lawful ways of collecting of material evidences, belittles the sentence enacted by it.

It is necessary to notice, that in judicial and investigatory practice it is not not enough similar examples, as experts are convinced basically, that check of indications on a place is way of collecting of material evidences. It proves to be true results of the questioning of 235 practical workers spent by me, whether which on a question «you Consider as appropriate way of collecting of material evidences check of indications on a place?» Have answered as follows: 140 respondents (59,6 %) have given the positive answer, do not consider the given investigatory action by way of collecting of material evidences 82 respondents (34,9 %), 13 persons (5,5 %) were at a loss to answer.

The Criminal procedure law carries an identification to investigatory actions, however studying of the legal literature devoted to a presentation for an identification, the analysis of some criminal procedure norms allow to establish, that the presentation for an identification though is investigatory action, thus way of collecting of material evidences is not, as consists in an establishment of identical similarity, and also distinctions between the shown object and the image which has remained in memory of the person.

In the given context pertinently to result R.S.Belkin's writing opinion, that «in effect, an identification any cognizance of a required subject is at a search or observable object at survey when as its consequence object allocation serves. The identification is carried out here on the fancy which has arisen or at preceding perception of object, or at transformation in a fancy of the description of object».

For example, B it was convicted of causing of deliberate heavy harm to the health which has entailed on imprudence death of the victim. Criminal case has been initiated upon receipt in hospital of victim D with heavy physical injuries from which he, not coming to consciousness, in some days has deceased. During investigation it has been established, that victim D, witness T and suspect B drank spirits. Then witness T has left, and victim D and suspect B continued to drink alcohol, then have quarrelled. Quarrel has outgrown in fight between them in which course they at first struggled, and then B began to strike sustained blows by hands, feet to various parts of a body, including on a head. When B has been detained and shown for an identification to witness T the witness has identified it, including on a sweater - woollen, black with inserts of grey colour. Considering, that earlier on clothes of the victim (a stripped vest and a sweater) has been found out extraneous fibres, the inspector for the purpose of check of a possible finding of clothes of the victim and suspected of contact mutual relation during investigatory action carrying out - presentations for an identification has withdrawn at B a sweater about what has made the identification entry. The inspector has committed an error as the identification is not way of collecting of material evidences, to it followed suspend an identification and to withdraw a sweater by manufacture of a personal search or dredging.

On the basis of stated it is possible to draw following conclusions.

1. Investigatory actions as ways of collecting of material evidences are provided in the operating criminal procedure legislation, carried out in stages of pre-judicial criminal manufacture by officials of investigating agencies and inquiries (the appropriate subject of criminal trial) actions on detection of subjects, documents as material evidences, to their withdrawal and fastening, check and an estimation from the point of view of the relevancy, an admissibility, reliability and sufficiency for the criminal case permission.

2. Not all investigatory actions are ways of collecting of material evidences about what it is expedient to add item 32 of item 5 UPK the Russian Federation In particular, the investigatory actions connected with detection of subjects and documents, coming under further to a recognition the following can be material evidences: survey of a scene, a premise, a search, a personal search, dredging, survey, arrestment on pochtovo-cable departures, their survey and dredging, the control and record of negotiations, reception of the information on connections between subscribers and (or) user's devices. Other investigatory actions specified in the criminal procedure law, do not concern ways of collecting of material evidences.

3. Investigatory actions, representing itself as the basic way of collecting, bear all loading on collecting of proofs at crime investigation.

4. Investigatory actions share on the actions directed on collecting of proofs, and verifying investigatory actions.

5. The personal search of the suspect spent right after of detention, it is necessary to make out the separate report of a personal search of the arrested person.

6. Survey is independent investigatory action in which course the subjects able further to become by material evidences can be found out. For elimination of some ambiguities arising by manufacture of survey, we suggest to add item 179 UPK the Russian Federation with possibility of manufacture of survey of clothes osvidetel - stvuemogo, and also withdrawals of the subjects important for criminal case.

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A source: MAMEDOV RAMIL JAGUBOVICH. WAYS OF COLLECTING OF MATERIAL EVIDENCES IN THE RUSSIAN CRIMINAL PROCESS. The dissertation on competition of a scientific degree of the candidate Jurisprudence. Krasnodar - 2016. 2016

More on topic § 2.1. INVESTIGATORY ACTIONS AS APPROPRIATE WAYS COLLECTING OF MATERIAL EVIDENCES:

  1. Chapter 2 INVESTIGATORY AND OTHER LEGAL PROCEEDINGS AS WAYS OF COLLECTING OF MATERIAL EVIDENCES IN THE CRIMINAL TRIAL
  2. § 2.2. OTHER LEGAL PROCEEDINGS AS WAYS OF COLLECTING MATERIAL EVIDENCES
  3. § 3.2. WAYS OF COLLECTING OF MATERIAL EVIDENCES IN JUDICIAL CRIMINAL MANUFACTURE
  4. Chapter 1 CONCEPT AND WAYS OF COLLECTING OF MATERIAL EVIDENCES OF CRIMINAL TRIAL RUSSIA
  5. Chapter 3 WAYS OF COLLECTING OF MATERIAL EVIDENCES IN SEPARATE HUNDRED DIJAH CRIMINAL TRIAL
  6. § 1.1. CONCEPT OF COLLECTING OF MATERIAL EVIDENCES
  7. MAMEDOV RAMIL JAGUBOVICH. WAYS OF COLLECTING OF MATERIAL EVIDENCES IN THE RUSSIAN CRIMINAL PROCESS. The dissertation on competition of a scientific degree of the candidate Jurisprudence. Krasnodar - 2016, 2016
  8. admissible ways of reception of material evidences On criminal cases
  9. § 1.2. THE GENERAL CHARACTERISTIC OF WAYS OF COLLECTING OF THE MATERIAL PROOFS IN CRIMINAL TRIAL
  10. § 3.1. FEATURES OF WAYS OF COLLECTING OF THE MATERIAL PROOFS IN THE STAGE OF EXCITATION OF CRIMINAL CASE
  11. Chapter 3. System of judicial actions of investigatory character and questions of their regulation 3.1. System and general terms of carrying out of judicial actions of investigatory character
  12. 3.3. Criminalistic aspects of manufacture of investigatory actions in the course of investigation mnogoepizodnyh crimes participants of investigatory-operative group
  13. § 1. The typical investigatory situations demanding manufacture of investigatory action «Reception of the information on connections between subscribers and (or) user's devices», and the program of actions of the inspector
  14. § 3. Remedial features and difference of reception of the information on connections between subscribers and (or) user's devices from other investigatory actions and operatively-search actions
  15. 3.1. Admissible subjects of reception of material evidences In criminal trial
  16. CHAPTER 3. FEATURES OF TACTICS OF CARRYING OUT OF SEPARATE INVESTIGATORY ACTIONS AT INVESTIGATION OF VIOLENT ACTIONS OF THE SEXUAL CHARACTER MADE CONCERNING MINORS
  17. 2.1. Essence, concept and value of material evidences in criminal trial
  18. features of an estimation of material evidences on criminal cases
  19. an admissible order of reception of material evidences On criminal cases
  20. the admissible remedial form of material evidences in Criminal trial