Сибирское юридическое обозрение (Oct 2024)
Shortcomings of the Preliminary Investigation Under the Statute of Criminal Procedure of 1864
Abstract
A significant body of scholarly literature examines the shortcomings of the preliminary investigation. However, the historical aspects of this problem have not been thoroughly investigated. Currently, there is a lack of papers giving the comprehensive analysis of the shortcomings of preliminary investigation before the revolution. The paper examines the concept and types of shortcomings of the preliminary investigation mentioned in the works of Russian processualists of the second half of the 19th and early 20th century. The Author hypothesizes that by the beginning of the twentieth century, the doctrine prescribed that the shortcomings of the preliminary investigation as a relatively mass phenomenon, the essence of which was a violation of the requirements and procedures of the preliminary investigation. The Author uses historical and legal, statistical methods, a system analysis. The historical and legal methods enabled the Author through the analysis of the provisions of the doctrine, the Statute of Criminal Proceedings of 1864, and the changing judicial practice, to retrospectively trace academic approaches to the shortcomings of preliminary investigation. In addition to the historical and legal methods, the Author uses the method of system analysis. This analysis helps to examine the shortcomings of preliminary investigation in their connection with the main stages and institutions of the pre-revolutionary criminal procedures. The statistical methods helped to reveal the structure and identify the changes in the shortcomings of the preliminary investigation from 1874 to 1914. The Author has come to the following conclusions: the content of the concept of "shortcomings of the preliminary investigation" was revealed through characterizing typical violations committed during the preliminary investigation; such shortcomings of preliminary investigation as major violations committed; non-criminal actions of the court investigator; certain procedural and social consequences. The Author concludes that it is advisable to relate investigation mistakes of present time to the provisions of the pre-revolutionary doctrine. The paper reveals the structure of the shortcomings of preliminary investigation including the incompleteness of the preliminary investigation and its biased character, prolonged proceedings, violations of the forms and procedure of preliminary investigation, incorrect classification of crime. The Author proves that the greatest drawback in the structure of the preliminary investigation was incompleteness of the preliminary investigation. For the period from 1874 to 1914, a tendency of increasing the number of mistakes made at the stage of the preliminary investigation was revealed.
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