Art. 166 of the Code of Criminal Procedure with comments
Protocols are one of the most commonevidence in criminal cases. They are the most popular means of fixing the process of investigative actions and their results. However, as evidence, they can be adopted only if they meet the requirements established by law, specified, in particular, in Art. 166 of the Code of Criminal Procedure. With the latest changes to this criminal procedure, its content and comments can be found further in the article.
Protocol of the court session, as well asinvestigative action, a written act is recognized in which the authorized person (inquirer, investigator, court), in accordance with the procedure established by the legislator, based on direct perception and observation, recorded information on the circumstances that are relevant or relevant to the case. As evidence, they can be used only if the requirements of the legislation are strictly observed, viz. 164-167 and 259 of the Code of Criminal Procedure.
What protocols can be evidence?
Independent evidence may beprotocols of such investigative actions as all types of examination, investigation experiment, search, examination; seizure of postal items (postal and telegraphic), seizure, recording and control of negotiations, verification on the spot of evidence, presentation for identification. The list is exhaustive. The protocols of other actions (investigative) are not evidence. Although they also must comply with art. 166 of the Code of Criminal Procedure. For example, protocols of confrontations, interrogations. This fact is due to several reasons.
In the first category of protocols (inspection,surveys, etc.) reflect the process and results of the study by the prosecutor, the investigating body or the court of phenomena, actions, the environment, the experiment, in other words, a certain experimental action. Actually, only the information observed by the official in charge of the criminal proceedings, as well as the participants in the proceedings, is recorded in the acts.
The protocols of confrontations and interrogations, on the contrary, are only technical means of fixing the testimony of the interrogated person and in connection with this proof are not.
Part 1, 2 166 art. Code of Criminal Procedure of the Russian Federation: time and method of drawing up a protocol
The creation of this type of protocol ismandatory procedure for each investigative action. It is formalized directly in the process or immediately after its termination. The protocol is written in one of the ways stipulated in Part 2 of Art. 166 of the Code of Criminal Procedure, namely: by hand or using technical means. In addition, during the investigation, photography, shorthand, audio recording and video recording, filming can be used. In this case, photographic images and negatives, stenographic record and transcript, audio and video materials are stored together with the criminal case.
According to Part 8 of Art. 166 of the Code of Criminal Procedure, the results of the use of video, photo, film or audio equipment should be attached to the protocol, if they were actually applied during the investigative action. They are an illustration of the contents of the written act and its component, therefore do not have the status of independent evidence. Protocols, drawings, diagrams, plans and verbatim records can also be attached to the protocol.
Part 3 of Art. 166 CCP RF: Introduction
According to the text of the norm, the introductory part of the protocol must contain the following data:
- date and place of its production, time (to the nearest minute) of its beginning and end;
- Data of the person who executed the protocol (name with initials, position);
- the data of all those who participated in the investigative action (a surname with initials, and if necessary, other personal data, including the address).
Commentary to Part 3 of Art. 166 CCP
In accordance with the commentary to art. 166 of the Code of Criminal Procedure, at the very beginning of the introductory block of the protocol it is necessary to indicate its name (seizures, search, inspection of places, etc.). The name of the settlement where the investigative action is carried out is given below. The date in the protocol is indicated in the format number, month and year. For example, July 11, 2017 Abbreviated entry is not allowed. Similar requirements relate to the timing of actions. It is indicated after the date, but before the information about the person who drafted the protocol.
The introduction should also reflectthe procedural grounds by which the authorized person is guided in the course of the production of the relevant action (investigative), with reference to the specific norms of the CPC.
Part 4, article 166 of the Code of Criminal Procedure: a substantial or descriptive part of the protocol
In the new edition of art. 166 of the Code of Criminal Procedure (relevant at the moment) requires that all ongoing procedural actions are subject to a detailed description in the protocol. They need to be fixed in the order in which they were actually conducted. Incidentally, circumstances that are of significant importance in the consideration of a particular criminal case in court, and statements of persons who participated in the investigative action are reflected.
The protocol shall specify the namefound items and documents with a detailed description of their individual characteristics, as well as the location of their detection and quantity. Thus, during a search, information about discovered caches, their contents, damages caused during the investigation, as well as attempts of the searched person to destroy them or hide them. If documents and items to be seized are found, it is mandatory in the protocol to indicate whether they were issued voluntarily or forcibly.
Use when logging technical means
As already mentioned above, when compilingprotocol allows the use of hardware (computer). According to Part 5 of the analyzed article, they must be listed in the protocol. In addition, the conditions for their application and procedures, objects to which they were used, and the results obtained are indicated. The protocol should include information that the persons participating in the investigative actions were aware of the use of technical means in advance.
Part 6 of Art. 166 of the Code of Criminal Procedure: familiarization with the protocol
The third part of the protocol structure wasthe name "final". It sums up the work done. It indicates all items that were seized, how they are packed and where their storage will be carried out. The signatures of all participants of the process are put.
According to Part 6 of Art. 166 of the Code of Criminal Procedure, the protocol should be presented for review to all those who participated in the investigative action. In this case, the authorized person should explain that they have the right to make comments to the act (specifying or supplementing its content) to be included in it. All additional comments must also be certified by the signatures of the participants who gave them.
If participants refuse to sign the protocol
St. 166, 167 of the Code of Criminal Procedure are closely interrelated. Cases of refusal of participants of a certain investigative action (suspect, victim, accused and other person) from signing the protocol in practice occur frequently. The rules for registration of this stage are described in art. 167 of the Code of Criminal Procedure. So, if the specified persons refuse to sign the protocol, the investigator enters an appropriate entry into it and signs it with his signature. At the same time, the guilty, accused, injured and other participants are given the opportunity to explain their refusal.
In the event that the listed above persons can notsign the protocol because of their physical disabilities, or for health reasons, they are introduced to the act in the presence of a legal representative, witnesses or counsel. The latter confirm the contents of the document, as well as the inability to sign it with personal signatures.
Signing the Protocol
The final part of the act should also containinformation about the applications (photos, negatives, phonograms, plans, schemes, imprints, casts, etc.), provided that they were carried out precisely in the course of the production of this investigative operation. In conclusion, according to the requirements of paragraph 7 of Article 166 of the Code of Criminal Procedure, the protocol is signed by all participants and the investigator. In some cases, stipulated in the legislation, all persons involved in the conduct of the investigative action receive a copy of the act, as the corresponding note is made in the original document. For example, during a search, seizure of property, seizure.
Part 9 of Art. 166 CCP: safety of the injured person
Part 9 of Art. 166 of the Code of Criminal Procedure allows not to indicate to the investigator, investigator in the protocol data on the identity of the victim, as well as his representative or witness. This is permissible in the event that it is required to ensure the safety of the said persons or their close people and relatives.
Investigator or investigator with consenthigher officials (the head of the body of inquiry or the head of the investigation department) issues a resolution. In it, he sets out in detail the reasons for the decision to keep the data secret. In addition, a pseudonym is indicated, under which the victim or witness will later appear in the documents, as well as a sample of their signature, which they will use when drawing up a protocol of the action taken with their participation.
Further, the resolution is sealed in an envelope,which is sealed and attached to the criminal case. It should be stored in conditions that preclude the possibility for other participants in the process to become acquainted with it.
If the matter is urgent, thethe action may be carried out on the basis of the decision of the investigator or the investigator without obtaining the consent of the higher official. However, as soon as possible, the document is handed over to the heads of the investigative body or inquiry.
Part nine of the article in question introduceddomestic criminal procedure legislation a new measure aimed at protecting witnesses and victims. It closely comes into contact with the possibility of these persons to give evidence in court in conditions that exclude visual contact with other participants in the proceedings (in accordance with the comments). Art. 166 of the Code of Criminal Procedure in 2016 was amended in this part. Previously, only the investigator possessed the authority to issue the order. The amendments, which came into force in 2016, allowed this action to be carried out to the bodies of inquiry.