To the question of Eugene, what exactly is “investigation” in the literal sense of the word — as it were — the answer is already in the studio ... Read carefully ...
In modern historical and legal science, there is an increased interest in the problem of the organizational and legal foundations of the fight against crime in pre-revolutionary Russia. Only for the period 1997 - 2007, according to our estimates, about 40 such studies of various levels of scientific degree and complexity were published. In addition, the historical aspects of activities aimed at combating crime, attract the attention of specialists in specialized legal sciences, in particular the criminal process and the theory of operational-search activity. In all scientific papers without exception, the term “investigation” is actively used - and this is natural -. At the same time, authors, as a rule, invest in this concept a different meaning depending on the chronological period under consideration, the subject and purpose of the study, or their own scientific ideas.
Considering the above circumstances and sharing the opinion of V.M. Savitsky, that “the rule on the unambiguousness of terms is the alpha and omega of any truly scientific terminology” <1>, we believe that there is a need to bring the concept of “search” to a common denominator and define it in the status of a special scientific concept even within the framework of historical and legal scientific direction. The relevance of the development of the historical and legal concept of “investigation” is also determined by the task of the historical and legal science of generating ideas and creating for the theory of state and law, branch and private legal sciences, an absolutely necessary adequate historical basis for them. Without pretending to be the ultimate truth, we will attempt to formulate a definition of the concept of “search” on the basis of the study of its historical and legal transformation, traced in the regulatory legal acts of the pre-Soviet period of the 10th – early 20th centuries. Confining ourselves to the scope of the article, we present here the results of an analysis of the texts of legal and partially literary monuments about the origin and development of the term “detective”.
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<1> Savitsky V.M. Language of procedural law: Questions of terminology. M., 1987.S. 24.
The basis of the origin of the term "detective" is the common vocabulary of the pre-Slavic origin "iskati" used in ancient Russian law of the 11th - 13th centuries in fixing the procedural rules governing social relations arising from personal injury and property. The prefixal formation of the initial search term, recorded in the legal vocabulary of the fourteenth and fifteenth centuries, appears as a special legal term denoting investigative actions to investigate criminal cases and qualifying the criminal procedure relationship as opposed to civil procedure defined by the term “seek” . The derivative "search" in regulatory legal acts of the XVI - XVII centuries. used in the legal sense of the judicial investigative action and at the same time as a means of investigating criminal cases - a survey of the local population in order to identify information about crimes and criminals. In the same period, the token of “search” is replaced by the legislator with “search”. The “investigation” derived from it, recorded in the monuments of law of the second half of the 16th century, gradually acquires the significance of an investigation in criminal cases.
In the middle of the XVII century. the term “detective” becomes a key special legal term in emerging domestic criminal procedural law, acquiring three main meanings: investigative litigation, the functions of administrative and judicial authorities authorized to conduct an investigation and criminal court, the activities of officials aimed at detecting and catching criminals. This paradigm of the term “investigation” and its meanings is enshrined in the largest body of laws - the Council Code of 1649, which has been in force in the Russian state for over two hundred years.
The terminological vocabulary of the emerging language of criminal proceedings is enriched during this period with the “detective” token as a designation of government officials specially authorized to conduct local investigations. Initially, the terms "searchist" and "detective" were equivalent and interchangeable. With the gradual decline in the importance of the institution of a general search in criminal proceedings of the second half of the XVII century. the term "common man" loses its meaning, passing through the XVIII century. into the passive composition of legal vocabulary. In parallel with this, the term “detective” increases the frequency indicators of use in regulatory legal acts of the second half of the XVII - the first half of the XVIII century, which was caused, first of all, by the special attention of the legislator to the organization of a mass search on the state scale and the return of fugitive peasants to their places. In particular, one can mention the order of detectives of runaway peasants and serfs in 1683, a decree on sending detectives to all cities to search for runaway peasants and serfs and penalties for keeping the runaways and for resisting their investigation in 1698, etc. At the same time, it is increasing the importance in the fight against crime of the permanent representatives of the center in the field, authorized to conduct an investigation and criminal court, i.e. detectives, whose activities were regulated by a number of regulatory legal acts: New-decreed articles on tateb, robbery and murder cases of 1669, Rules for investigators sent to Nizhny Novgorod to eradicate thieves and robbers of 1675, "On sending detectives to all cities and about rejection of the challenges submitted to them "1689," On the unimpeded search and prosecution by detectives of thieves and robbers and their accomplices in all provinces "1711, Decree for detectives 1743, an instruction specific for the search and eradication of thieves and robbers to the chief investigator 1756 g. etc.
At the end of the XVII - beginning of the XVIII century. the tendency of the development of procedural legislation and judicial practice of the previous century is coming to an end - the replacement of the adversarial principle by investigative, inquisition. The assignment of the term “search” to the meaning of an investigative, inquisition trial by combining the functions of the court and the investigation in one state body, using torture as the main method, is recorded in the Personal Decree 1697 “On the abolition of confrontations in court cases, on being instead of them interrogation and search, about witnesses, about their withdrawal, about oath, about punishment of false witnesses and about duty money ". In this Decree in Art. 1 reads: "And instead of courts and confrontations for petitioning any ranks of people in grievances and in ruin, repair the wanted list in scolding and in dishonor or in battle and in mutilations and in any grievances and ruin" <2>. In the other 13 articles of the Decree, the synonym for the term “wanted” is the “token” token. The essence of the concept of "search" in the legislation is reflected in Art. 2 chap. 2 Brief depiction of processes and litigation in 1715: "When, for the sake of his rank, a judge fixes a judicial question and search: where, how, how and from whom such a crime is committed." Here, criminal cases are called "search" <3>. From this moment on, the concept of judicial proceedings in criminal cases, including all its elements (search and capture of a criminal, inquiry, investigation, decision making), has been firmly fixed in the domestic legislation for the term “search”.
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<2> Russian legislation of the 10th-20th centuries T. 4.M., 1986.P. 399.
<3> Ibid. S. 411.
Thus, the first of the indicated meanings of the term “investigation” in the first half of the 18th century. receives a new nomination - "wanted", which has become a special legal term in law and law until the first half of the 19th century, and from the second half to the present - the basis of a scientific term widely used in historical and legal science as one of the forms court proceedings, namely the investigative, inquisition trial in pre-revolutionary Russia. On this basis, the terms "search" and "search" in a linguistic sense began to be considered as synonyms.
A manifestation of the meaning of the term “search” (“search”) as a function, apart from indications in regulatory legal acts, appears to be its use in the nomination of the relevant bodies established at various historical stages in the development of the state apparatus to solve the problems of protecting public order and combating crime: The search order (1682, 1730 - in Moscow), the search expedition (1729 - in St. Petersburg; 1763 - in Moscow), the Secret Chancellery of Investigation (1731). Derived adjectives from the terms "search" and "search" indicated the functions, purpose, goals and content of the activities of these bodies: the detection and capture of criminals, conducting inquiries, investigations and trials in criminal and political cases.
The “detective” token now already nominates a set of actions by officials to identify, search and capture criminals and runaway peasants, soldiers, dragoons and sailors. One of the characteristic examples of the new meaning in the legal language of the terms "search" and "investigation" and their interaction in the regulatory legal body of the XVIII century. serves as Art. 10 Instructions specific to the search and eradication of thieves and robbers by the chief investigator in 1756: "Where the fugitive dragoons, soldiers and sailors will be found and caught, they should also look for where they molested and weren’t in robberies; if they are suspicious, and reach torture ... "<4>.
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<4> Cit. by: Detective Anthology: from police to foreign intelligence. Kiev, 2006.S. 51.
In normative legal acts of the second half of the XVIII century. the frequency of use of the terms “search” and “search”, which retain their special legal meaning, is gradually decreasing. With the establishment in the Russian Empire in 1718 of the police in the history of domestic legislation in the period of the 18th - early 20th centuries. a very significant layer of normative legal acts appears, defining goals and objectives, regulating the organizational and legal foundations of its activities and becoming the basis for the formation of police law. Despite the fact that the police have been charged with the duty of preventing, combating and prosecuting crimes, investigating and even trying petty crimes, the terms “search” and “wanted” are practically not found in the legislation on police.
In the legislation of the middle of the XIX century. the term “search” appears again, and it is understood as the actions of the police, aimed at clarifying the circumstances of the incident in order to identify signs of crime in this incident and fix its traces <5>. In the Charter of the criminal proceedings of 1864, the terms "search" and "investigation" are revived as special legal concepts. Their content was significantly influenced by the development of legal proceedings, criminal procedure and law during this period: the replacement of the inquisition trial by an adversarial process, the establishment and development of the institution of preliminary investigation, the transformation of the police into the body of inquiry.
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<5> See: Code of laws of the Russian Empire. T. XV. Art. 946, 4217.
The term “search” was defined in the Charter (Articles 254, 300) as an integral part of the inquiry and at the same time as a form of its implementation: “When conducting an inquiry, the police collect all the necessary information through searches, verbal questioning and secret surveillance ...”; "an indication of an important misconduct or criminal act threatening public peace ... serve as a pretext for a police search or inquiry ..." <6>. The term “investigation” (Articles 386, 847 - 851) means the search for the accused through publication in the Senate announcements, in the statements of St. Petersburg, Moscow and provincial cities, if his whereabouts are unknown or if he escaped <7>.
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<6> Russian legislation of the 10th-20th centuries T. 8.M., 1991.S. 145, 150.
<7> See also: Brockhaus F.A., Efron I.A. Encyclopedic Dictionary. T. 63. St. Petersburg, 1901.S. 236.
In the second half of the XIX - beginning of XX centuries. As part of the general police of the Russian Empire, special units are established to combat common crime. These new units carried out the function of preventing, combating and prosecuting ordinary crimes. The content of their activities was the disclosure of crimes following the traces left, the detection and capture of criminals, their transfer to the hands of the judicial investigative authorities with all the evidence found and recorded and evidence gathered during the investigation of the crimes. Based on the traditions and continuity of the terminology of legislation aimed at regulating public relations in the field of combating crime, these units were called the Detective Police (St. Petersburg, 1866; Moscow, 1881) and the Detective Departments (1908). In the normative acts that determined the organizational and legal foundations of their activities (the Law on the organization of the detective part of 1908, the Instruction for the ranks of the detective offices of 1910 (hereinafter referred to as the Instruction)), the term “search” acquires a narrower special meaning - activity aimed at disclosing crime through the collection, recording and storage of information about the crime, the detection and capture of the offender.
The normative legal innovation of the traditional legal content of the search token was based on the results of theoretical and legal studies of Russian lawyers in the field of criminal procedure law of the late XIX - early XX centuries, who attempted to theoretically distinguish between the concepts of "inquiry" and "search". So, for example, A.A. Kvachevsky believed that "the search is part of the inquiry, in the broad sense - one of the methods of its production, aimed at detecting and indicating the hidden, secret, mainly the culprit of the crime" <8>. According to I.Ya. Foynitsky’s search included inspecting the area, the victim, all kinds of objects - physical evidence (even with the help of experts), newspaper publications, detours of shelters, etc. <9>. Thus, in his understanding, the search is all measures to establish the event of a crime. Therefore, they also included verbal questioning and unspoken observations specified in the law as forms of inquiry, as well as prosecution of the criminal in hot pursuit. P.V. Maklinsky argued that "the concept of inquiry is broader than the concept of search; the latter represents, as it were, a part of the first aimed at discovering something hidden, not easily accessible; it assumes speed of action and therefore is mentioned when it is said about cases or circumstances of a mysterious or important requiring special police action "<10>. As shown above, it was this understanding of the search, which turned out to be the most preferable, that was adopted by the legislator and subsequently specified in the Instruction.
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<8> Kvachevsky A.A. On the criminal prosecution, inquiry and preliminary investigation of crimes under the Judicial Statutes of 1864. Part III. St. Petersburg, 1869.S. 5.
<9> Foynitsky I.Ya. Course of criminal proceedings. SPb., 1895. Issue. 1 - 2.P. 291.
<10> Maklinsky V.P. A practical guide for judicial investigators in St. Petersburg, 1907. P. 30.
From the contents of Section IV of the Instruction, it follows that the search refers to "the collection of information exclusively by secret surveillance, interrogations, certificates, without questioning in an official tone, and with the completion of the necessary information not visible to outsiders", i.e. The unofficial nature of activity <11> is emphasized. The term “criminal investigation” is fixed in the same regulatory legal act (Article 61). Based on the general meaning of the Law on the organization of the detective part and the Instructions, it was understood as a set of areas of activity (i.e. functions) of detective departments - inquiry and search in criminal cases with the aim of preventing and prosecuting ordinary crimes, as well as the means and methods of their production.
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<11> Instructions to the officers of the detective offices. St. Petersburg, 1910.S. 15.
Thus, the term “detective” acquires the meaning of activities aimed at combating crime carried out by authorized police bodies that use special means and methods to achieve the goals of preventing, solving and investigating crimes, that is, type of criminal procedure prior to the investigation and trial. The term "search" takes on a narrower meaning - as an unofficial activity, a necessary part of the investigation aimed at collecting and recording information about crime in order to prevent and investigate crimes, identify and capture criminals. This type of criminal procedural activity precedes inquiry and investigation.
The search begins to appear as a broader, general, specific concept, denoting a type of law enforcement activity aimed at protecting the interests of the state, society and individuals from criminal attacks. The term "search" becomes a special legal concept and generic in relation to the nomination "search". As part of the search, the search is important for the type of activity aimed at finding reliable information about a criminal act in order to achieve truth during the investigation and trial.
At all stages of historical development, the term “detectives” and its derivatives are used in the legal language to define activities aimed at combating crime, which has an organizationally ordered form, regulated and regulated by law. In this regard, it seems that we have the initial foundations for the transition of the term “investigation” from a general historical, legal and philological meaning to a special scientific concept. As such, a search is a historically determined type of state activity aimed at protecting the state, society and individuals from criminal attacks, having an organizationally and structurally ordered form, regulated by law, implemented by special means and methods. In a narrower sense, a detective is the activity of specially established and (or) authorized bodies of state power bodies and their employees, regulated by the norms of law, aimed at preventing, suppressing and prosecuting criminal encroachments on the interests of the state, society and private individuals protected by law. In this sense, investigation is a function of state bodies. Taking into account that since ancient times in Russian, and then in jurisprudence, the designation of a criminal offense was assigned the name of criminal <12>, there is reason to use the special term “criminal investigation activity” to nominate the activities of the state and its bodies aimed at combating it "
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<12> The word "criminal" arose on the basis of the old Russian "head" - killed. Over time, an expansion of meaning has occurred. See: Chernykh P.Ya. Historical and etymological dictionary of the modern Russian language. T. 2.M., 1993.S. 282.
