On the legality of the judicial appeal of the initial charge during the preliminary investigation

The expansion of the scope of judicial participation (control) at the stages of preliminary preparation of the case is one of the main directions in the development of criminal justice. It can become a complete guarantee of the equality of the parties to legal proceedings, the competitiveness and fairness of the procedure. Currently, in the Russian criminal procedure, such control is provided only for actions (inaction) and decisions of the preliminary investigation bodies and the prosecutor affecting the constitutional rights of citizens (some preventive measures and investigative actions, seizure of property, criminal prosecution of certain categories of persons, resumption of long-discontinued cases, etc.). At the same time, the court often has to assess the evidence and the factual validity of the suspicion and accusation of a person, or the very need to continue the criminal prosecution. In this regard, the question arises of how to prevent the courts from prejudging the question of guilt. The adoption of standards of proof, including prima facie (evidence reasonable at first view), may serve as a guarantee when the question of guilt is examined in a purely preliminary sense, under the condition that guilt will be definitively established, only if the evidence presented by the investigator is confirmed during the trial on the merits. Since the current law (Article 125 of the Criminal Procedure Code of the Russian Federation) declares the possibility of appealing against any decisions of the preliminary investigation bodies if they affect, among other things, constitutional rights and freedoms, the question arises as to the legality of complaints about the unjustified bringing of the so-called initial charge, since it affects such constitutional values as the dignity and inviolability of the person, the presumption of innocence, the use of only admissible evidence in the administration of justice. In practice, however, there is no appeal against the charge, which affects the quality of the preliminary investigation, the legitimate interests of the accused and the burden on the courts of first instance. In order to prevent judges from forming a biased view of guilt, it is necessary to specialize judges or, as the most radical measure, to introduce the institution of investigating judges. The purpose of this study is to justify the possibility of a judicial appeal at the stage of preliminary investigation of the initial charge. The article uses empirical methods of comparison, description, interpretation, formal-logical method as well as specific scientific methods: legal-dogmatic and interpretation of legal norms.