Theoretical – Controversial Aspects of the Procedural Control of Pre-trial Investigation
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Abstract
This article discusses the origin of the procedural control, analyses internal and external forms of procedural control of pre-trial investigation.
Procedural control, as one of the aspects of the criminal procedure, is composed of separate actions of the participants of the criminal procedure and their decisions aimed at the relevant realization of the procedural guarantees and procedural forms. It is presumed that the aggregate of such actions and decisions comprises one of the elements of the contents of the function of the procedural control. Another element of this function is a participant of the criminal procedure or, in other words, one of the subjects of procedural legal relation, who is able to execute a certain procedural action or is authorized to take a certain decision related to inadequate execution of the duty of the other subject of the procedural legal relation. These elements of the contents of the procedural control start to function only when one of the participants of the procedural relation, according to the opinion of the other participant of the procedural relation, fails to fulfill a certain duty or, in case he does – fulfills it inadequately. According to the opinion of the author of this article, procedural control, first of all, is aimed at the prevention of procedural violation of the law or a procedural mistake and only then – at the establishment of the fact of such violation or mistake. In other words, procedural control, first of all, seeks to prevent potential mistakes or violations and, if such mistakes or violations are established, to make one or another person to apply measures that corrective actions are taken against such mistakes or violations and procedural responsibility is restored. Procedural control can be implemented is two ways: through procedural responsibility or by imposing sanctions restoring or revoking certain rights. Procedural responsibility is applied in cases when procedural violation of the law is established, whereas sanctions are imposed to correct procedural mistakes.
The entire system of the procedural control consists of external and internal control. Thus, the pre-trial investigation control is not the exception from the system.
According to the author of the article, it is possible to speak about the internal procedural control of the pre-trial investigation in Lithuania only in cases, when pre-trial investigation is carried by the prosecutor, whereas in other cases mechanism of the internal procedural control in Lithuanian criminal procedure has not been established and therefore is inactive. The situation prevailing in Lithuania could be characterized as an illogical one: when a pre-trial investigation institution is authorized to carry out general pre-trial investigation, the right of procedural control at the same time is left out of the competence of such an institution. An individual carrying out the pre-trial investigation within the institution, is left on his own from the procedural point of view, as looking from the procedural (not administrative) aspect, no other individual within the institution has neither the right nor responsibility to control activities related to the concrete pre-trial investigation carried out by that individual. However, even in those cases, when a pre-trial investigation is carried out by the prosecutor, this internal procedural control of the pre-trial investigation appears to be only passive or, in other words, a static one. It is called passive or static procedural control, because a prosecutor of a higher rank as a subject carrying out internal procedural control as well as a head of pre-trial investigation institution or its sub-division, exercises no procedural rights which allow him to act at his own discretion.
In the opinion of the author of this article, the system of the external procedural control of pre-trial investigation in Lithuania is not relevant as well, as in the present system of the external procedural control of pre-trial investigation elements of the same system acting in different levels duplicate one and the same function. In such a system, an individual lodging a complaint against supposed violation or unjust derogation of his rights is forced to run from one institution to another and from one official to another to come in nowhere. Besides, there is no person in such a system to be really responsible for his actions or decisions – „responsibility“ becomes simply lost in such a system.
Procedural control, as one of the aspects of the criminal procedure, is composed of separate actions of the participants of the criminal procedure and their decisions aimed at the relevant realization of the procedural guarantees and procedural forms. It is presumed that the aggregate of such actions and decisions comprises one of the elements of the contents of the function of the procedural control. Another element of this function is a participant of the criminal procedure or, in other words, one of the subjects of procedural legal relation, who is able to execute a certain procedural action or is authorized to take a certain decision related to inadequate execution of the duty of the other subject of the procedural legal relation. These elements of the contents of the procedural control start to function only when one of the participants of the procedural relation, according to the opinion of the other participant of the procedural relation, fails to fulfill a certain duty or, in case he does – fulfills it inadequately. According to the opinion of the author of this article, procedural control, first of all, is aimed at the prevention of procedural violation of the law or a procedural mistake and only then – at the establishment of the fact of such violation or mistake. In other words, procedural control, first of all, seeks to prevent potential mistakes or violations and, if such mistakes or violations are established, to make one or another person to apply measures that corrective actions are taken against such mistakes or violations and procedural responsibility is restored. Procedural control can be implemented is two ways: through procedural responsibility or by imposing sanctions restoring or revoking certain rights. Procedural responsibility is applied in cases when procedural violation of the law is established, whereas sanctions are imposed to correct procedural mistakes.
The entire system of the procedural control consists of external and internal control. Thus, the pre-trial investigation control is not the exception from the system.
According to the author of the article, it is possible to speak about the internal procedural control of the pre-trial investigation in Lithuania only in cases, when pre-trial investigation is carried by the prosecutor, whereas in other cases mechanism of the internal procedural control in Lithuanian criminal procedure has not been established and therefore is inactive. The situation prevailing in Lithuania could be characterized as an illogical one: when a pre-trial investigation institution is authorized to carry out general pre-trial investigation, the right of procedural control at the same time is left out of the competence of such an institution. An individual carrying out the pre-trial investigation within the institution, is left on his own from the procedural point of view, as looking from the procedural (not administrative) aspect, no other individual within the institution has neither the right nor responsibility to control activities related to the concrete pre-trial investigation carried out by that individual. However, even in those cases, when a pre-trial investigation is carried out by the prosecutor, this internal procedural control of the pre-trial investigation appears to be only passive or, in other words, a static one. It is called passive or static procedural control, because a prosecutor of a higher rank as a subject carrying out internal procedural control as well as a head of pre-trial investigation institution or its sub-division, exercises no procedural rights which allow him to act at his own discretion.
In the opinion of the author of this article, the system of the external procedural control of pre-trial investigation in Lithuania is not relevant as well, as in the present system of the external procedural control of pre-trial investigation elements of the same system acting in different levels duplicate one and the same function. In such a system, an individual lodging a complaint against supposed violation or unjust derogation of his rights is forced to run from one institution to another and from one official to another to come in nowhere. Besides, there is no person in such a system to be really responsible for his actions or decisions – „responsibility“ becomes simply lost in such a system.
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