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Status of investigator under the new criminal procedure code

Dmitry Dvornik


Probably not many people know or fully understand that investigative activities, particularly investigator's work, focused on investigation of criminal cases, are very difficult, painstaking, interesting and dangerous at the same time. After all, back since the University bench of the investigative and forensic department, we learnt that investigators are "white collars", they are police prosecutors, and it is the investigator that determines the fate of a person under a criminal investigation.

For many it is not very clear what investigator does in the first place; some of my friends even confuse and make no distinction between investigators and district police officers, or investigators and criminal detectives. But the difference is considerable. In my view, the investigator's work is very difficult in an intellectual sense too, as somebody who has just graduated from university, has to make decisions on many criminal cases, keep all valuable information in their mind. Let me tell this to you frankly, it is very difficult - I myself did this job several years ago, and I can say right away that the investigator must have a whole set of qualities essential for work in this sphere.

Firstly, there is ability to handle stress, and secondly, one should definitely be a psychologist, because, from my own experience I can honestly say that in the process of investigating cases an investigator has to meet different people of different social spheres and layers - from homeless people to company directors and very young children, so one requires a very good knowledge of psychology and pedagogics, sociology and conflict studies, because, as they say, without establishing proper psychological contact and without errors investigation will be impossible to conduct.

I believe you now get the idea of who is an investigator and I bet you think this is some kind of a prodigy within the internal affairs system, prosecution, tax service or SSU. I fully agree with you, though in no way do I intend in this way to belittle other professions, merely express my personal opinion. So, we have understood some features of the investigator's work. But why do they often refer to the investigator as a prosecutor or even a judge at pre-trial investigation - this, I think, you also understand a little, if not, later in this article you will definitely see it.

What is procedural independence of an investigatorof which so much say is so for many years argue? Do we need it at all? To this I will, my dear colleagues, openly tell you: of course, independence is necessary, not on paper but in reality. Earlier, working as an investigator, I had not even thought about that term, “procedural independence”, and when I was at university, at one of the exams I, of course, said what procedural independence of the investigator, is although without full understanding of what I was saying. The teacher was mocking me, "Yeah, downright independence and supremacy of own opinion, when on the one hand you have the head of the investigation department yelling at you, on the other - the prosecutor, and only then the judge".

But when I started working, only then did I realize what my teacher meant and why she smiled when I spoke of independence of the investigator. Dear reader, let me remind you that I was still working under the old 1960 Code of Criminal Procedure and to a young professional it was unclear whether it had any flaws whatsoever. And anyway, what right I did I have to say anything about this majestic Code that was for me like a Holy Bible, a desk book with which I spent time more than any other, where I found for myself a solution and procedural interpretation of a particular question? I remember very well how my mentor and colleague who taught me to work and who still is in investigating, though as a civil servant, would always say to me, "Take a good look and read what is written in the Code of Criminal Procedure, and do as it says, because you abide by the law and cannot invent something on your own. All you need is written in the law". I am very grateful to my colleague for that, the one who taught me to use the code and find all the necessary answers there when they were so needed. I remember the situation when I had a dispute with the prosecution, because, as it turned out, I had read the Code more closely. Thus, the conflict was exhausted and my position justified - I defended my opinion.

Ever since those times when I worked as an investigator - and that 2003, and during my training I heard a lot that the Criminal Procedure Code is so very imperfect, that it must be reformed, it has too many rules, which either do not work or are outdated undemocratic by nature. Now, with some experience, I can tell you that I agree with the above, because even when I worked as an investigator, I sometimes could not understand why make a person sign recognisance not to leave if it was not necessary, but it had to be done, as well as many other things that are not even outlined in the Criminal Procedure Code ... Most of all, I was irritated that my criminal cases were inspected by the head of investigation department, although it is contrary to the CCP, and the indictment was signed by the same supervisor. So much for procedural independence. Although in the CCP you will find only one thing: the indictment is signed by the investigator and approved by the prosecutor. So this is how we worked by the old Criminal Code. But time does not stand still, new laws are adopted. I did not see the new law on the status of an investigator in my time, but it would, because then I'm proud to be working in investigating, remembering the words from the university: "You are the elite, you are "white collars", and it is you on whom depends the fate of people." This I remembered well and tried to follow in my work.

Now, dear readers, I would like to share my impression of the adoption of the new Criminal Procedure Code and to express my personal opinion. Actually, I was very happy about the new Code, because I knew that the document, which we had used , was very outdated and could not function normally in modern conditions.

Today, many lawyers discuss how and what will work under the new Code and whether what is written in the new Criminal Code is correct. Everything happened so fast that I cannot even imagine how those investigators or judges who had worked under the old CCP now must follow a completely different document. I spoke with former fellow investigators, and they told me that on the first day when the CCP came into force, there were problems with the introduction of criminal offenses in the registry because it would "freeze" and overall, they had to record a lot - from a barking dog that was disturbing neighbors, to other more serious situations. And the very process of investigation from investigator's perspective has changed a lot in general, because certain things are not in use anymore that used to be, namely, decision to institute criminal proceedings, indictment at pre-trial investigation, pretrial questioning as a defendant. It's all gone in the past, as there is a new subject now, the investigating judge, though no one asked the court if is ready for such changes. In my opinion, and considering what I've seen personally, the judge who has not work in the investigation or prosecution agencies sometimes does not even know from which side to approach a criminal case, how to consider it. Just think yourself, if a person first sees a criminal case, how can he efficiently and objectively consider it with knowledge of the process? I believe that we need new personnel, particularly on positions of the investigating judge we should select those who have worked directly for investigation agencies, not how it is commonly done in the courts - secretaries and assistants of judges then become judges without any additional training and work experience in the investigative bodies. If the CCP has changed, we will need to reform the system of training as well, particularly that of investigators and investigative judges, so as not to stand in court and roll eyes from incompetence.

As for returning cases for further investigation, I was very glad that the new Code no longer contains this norm, because, frankly, this shuffling of cases from the investigator to the prosecutor, and then back to the investigator and then the same thing in court has not always been objective. Even during my work as an investigator, I received cases for further investigation not because I had violated criminal procedural terms, but for completely different reasons, for example, I had forgotten to put a comma in a word or made a spelling mistake. These cases would pile up and therefore had always remained in limbo.

I am also glad that now an investigator has the right to do unofficial investigative actions (UIA). Previously, it was only in the competence of operatives with the Criminal Investigation Department, and the investigator had no powers to do it. Yet, on this account I have also heard varying opinions: some said that it is invasion of privacy, others believe that this is a violation of the Constitution of Ukraine. But honestly, the adoption of any new legal act is always accompanied by arguing, and only time can reveal shortcomings, and so far it is too early to make any conclusions.

There is plenty to be said, to complain on someone and something or, vice versa, praise - that could fill the whole magazine. But I want to draw attention to the close relationship between the investigator and investigating judge. These are the two actors in the criminal process, on whom the law lays deciding human destinies, from the beginning of investigation and up to delivering judgment - either conviction, or acquittal. So, wouldn't it be fantastic if adaptation period, which is usually present after adoption of new laws went more or less smoothly, if errors were very insignificant, and once again I want to stress that we are in need of qualified personnel. I hope that training of such specialists is only a matter of time, so I wish both investigators and investigating judges to master the new Code of Criminal Procedure as quickly as possible and do their best to prove that it works well in practice, that difficult years of its preparation and adoption were not in vain for the future generation of investigators and investigative judges of Ukraine.

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