What does the law say about prosecutorial powers?
According to the provisions of the federal legislation “On the Prosecutor's Office of the Russian Federation” and the norms of criminal procedural legislation, the participation of the prosecutor in the consideration of criminal cases by the courts, as well as civil, administrative, arbitration and other cases, is intended to oversee the legality of decisions, sentences or resolutions adopted by the court. This official has the right to appeal these acts if they do not comply with the principles of legality and the Constitution of the Russian Federation.
The prosecutor is a full participant in legal proceedings in any legal sphere. Carrying out his direct duties, he protects human rights and freedoms, protects the interests of society and the state, ensures and strengthens unity and the rule of law. The prosecutor in court for criminal or any other proceedings achieves these goals by issuing regulatory documents on the basis of the powers granted by law. These include:
- participation in the consideration of cases in court;
- carrying out criminal prosecution in the administration of justice;
- acting as a public prosecutor;
- applying to the court to intervene in the process at any stage, if this is necessary to protect the interests of the participants in the criminal case;
- appealing any illegal or unfounded court decision or order, regardless of whether the normative legal act of justice has already entered into legal force or not;
- a request for a request from a court at any level of criminal proceedings, the decision on which is already in effect.
The prosecutor, his procedural functions and powers
Prosecutor is an official authorized, within the competence established by law, to carry out criminal prosecution on behalf of the state during criminal proceedings, as well as supervision over the procedural activities of inquiry bodies and preliminary investigation bodies.
During pre-trial proceedings in a criminal case, the prosecutor is authorized to:
1) verify compliance with the requirements of federal law when receiving, registering and resolving reports of crimes;
2) make a reasoned decision to send the relevant materials to the investigative body or the inquiry body to resolve the issue of criminal prosecution based on violations of criminal law identified by the prosecutor;
3) demand from the bodies of inquiry and investigative bodies the elimination of violations of federal legislation committed during the inquiry or preliminary investigation;
4) give the investigator written instructions on the direction of the investigation and the conduct of procedural actions;
5) give consent to the investigator to initiate a petition before the court for the selection, cancellation or change of a preventive measure or for the performance of another procedural action that is permitted on the basis of a court decision;
6) cancel illegal or unfounded decisions of a lower-ranking prosecutor, as well as illegal or unfounded decisions of an inquiry officer
7) consider the investigator’s information about disagreement with the prosecutor’s demands presented by the head of the investigative body and make a decision on it;
participate in court hearings when considering during pre-trial proceedings issues on the selection of a preventive measure in the form of detention, on extending the period of detention or on the abolition or change of this preventive measure, as well as when considering petitions for other procedural actions that are allowed in on the basis of a court decision, and when considering complaints in accordance with
9) allow challenges filed to the investigator, as well as his self-recusations;
10) remove the investigator from further investigation if he has violated the requirements of the Code of Criminal Procedure
11) withdraw any criminal case from the investigative body and transfer it to the investigator with the obligatory indication of the grounds for such transfer;
12) transfer a criminal case from one preliminary investigation body to another (except for the transfer of a criminal case within the system of one preliminary investigation body), withdraw any criminal case from the preliminary investigation body of a federal executive body (under the federal executive body) and transfer it to an investigator of the Investigative Committee at the Prosecutor's Office of the Russian Federation with the obligatory indication of the grounds for such transfer;
13) approve the decision of the investigator to terminate the criminal proceedings;
14) approve an indictment or indictment in a criminal case;
15) return the criminal case to the inquirer or investigator with his written instructions to conduct an additional investigation, to change the scope of the charges or qualifications of the actions of the accused, or to re-draft the indictment or indictment and eliminate identified deficiencies;
Upon a reasoned written request of the prosecutor, he is given the opportunity to familiarize himself with the materials of the ongoing criminal case.
During criminal proceedings, the prosecutor supports the state prosecution, ensuring its legality and validity.
The prosecutor has the right to refuse to carry out criminal prosecution with the obligatory indication of the reasons for his decision.
These powers are exercised by district and city prosecutors, their deputies, equivalent prosecutors and superior prosecutors.
If the head of the investigative body or investigator does not agree with the prosecutor’s demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to apply to the head of a higher investigative body with a demand to eliminate these violations. If the head of a higher investigative body disagrees with the specified requirements of the prosecutor, the prosecutor has the right to appeal to the Chairman of the Investigative Committee at the Prosecutor's Office of the Russian Federation or the head of the investigative body of the federal executive body (under the federal executive body). If the Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation or the head of the investigative body of a federal executive body (under a federal executive body) disagrees with the prosecutor's demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to appeal to the Prosecutor General of the Russian Federation, decision which is final.
The prosecutor exercises his powers in criminal proceedings independently of any bodies and officials, obeying only the law and guided by the instructions of the General. Prosecutor of the Russian Federation.
Prosecutor's decisions made acc. with the law, are binding on all enterprises, institutions, organizations, officials and citizens.
Prosecutor is an official authorized, within the competence established by law, to carry out criminal prosecution on behalf of the state during criminal proceedings, as well as supervision over the procedural activities of inquiry bodies and preliminary investigation bodies.
During pre-trial proceedings in a criminal case, the prosecutor is authorized to:
1) verify compliance with the requirements of federal law when receiving, registering and resolving reports of crimes;
2) make a reasoned decision to send the relevant materials to the investigative body or the inquiry body to resolve the issue of criminal prosecution based on violations of criminal law identified by the prosecutor;
3) demand from the bodies of inquiry and investigative bodies the elimination of violations of federal legislation committed during the inquiry or preliminary investigation;
4) give the investigator written instructions on the direction of the investigation and the conduct of procedural actions;
5) give consent to the investigator to initiate a petition before the court for the selection, cancellation or change of a preventive measure or for the performance of another procedural action that is permitted on the basis of a court decision;
6) cancel illegal or unfounded decisions of a lower-ranking prosecutor, as well as illegal or unfounded decisions of an inquiry officer
7) consider the investigator’s information about disagreement with the prosecutor’s demands presented by the head of the investigative body and make a decision on it;
participate in court hearings when considering during pre-trial proceedings issues on the selection of a preventive measure in the form of detention, on extending the period of detention or on the abolition or change of this preventive measure, as well as when considering petitions for other procedural actions that are allowed in on the basis of a court decision, and when considering complaints in accordance with
9) allow challenges filed to the investigator, as well as his self-recusations;
10) remove the investigator from further investigation if he has violated the requirements of the Code of Criminal Procedure
11) withdraw any criminal case from the investigative body and transfer it to the investigator with the obligatory indication of the grounds for such transfer;
12) transfer a criminal case from one preliminary investigation body to another (except for the transfer of a criminal case within the system of one preliminary investigation body), withdraw any criminal case from the preliminary investigation body of a federal executive body (under the federal executive body) and transfer it to an investigator of the Investigative Committee at the Prosecutor's Office of the Russian Federation with the obligatory indication of the grounds for such transfer;
13) approve the decision of the investigator to terminate the criminal proceedings;
14) approve an indictment or indictment in a criminal case;
15) return the criminal case to the inquirer or investigator with his written instructions to conduct an additional investigation, to change the scope of the charges or qualifications of the actions of the accused, or to re-draft the indictment or indictment and eliminate identified deficiencies;
Upon a reasoned written request of the prosecutor, he is given the opportunity to familiarize himself with the materials of the ongoing criminal case.
During criminal proceedings, the prosecutor supports the state prosecution, ensuring its legality and validity.
The prosecutor has the right to refuse to carry out criminal prosecution with the obligatory indication of the reasons for his decision.
These powers are exercised by district and city prosecutors, their deputies, equivalent prosecutors and superior prosecutors.
If the head of the investigative body or investigator does not agree with the prosecutor’s demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to apply to the head of a higher investigative body with a demand to eliminate these violations. If the head of a higher investigative body disagrees with the specified requirements of the prosecutor, the prosecutor has the right to appeal to the Chairman of the Investigative Committee at the Prosecutor's Office of the Russian Federation or the head of the investigative body of the federal executive body (under the federal executive body). If the Chairman of the Investigative Committee under the Prosecutor's Office of the Russian Federation or the head of the investigative body of a federal executive body (under a federal executive body) disagrees with the prosecutor's demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to appeal to the Prosecutor General of the Russian Federation, decision which is final.
The prosecutor exercises his powers in criminal proceedings independently of any bodies and officials, obeying only the law and guided by the instructions of the General. Prosecutor of the Russian Federation.
Prosecutor's decisions made acc. with the law, are binding on all enterprises, institutions, organizations, officials and citizens.
Competence of the Prosecutor General of the Russian Federation
This position is the highest in the system of Russian supervisory authorities and prosecutors. The Prosecutor General has the right to participate in sessions of the Supreme Court of the Russian Federation. In addition, he may initiate appeals to the Constitutional Court of the Russian Federation necessary to restore the violated rights and freedoms of citizens, and demand clarification on issues of specific criminal proceedings.
It is inappropriate to list all the powers of the prosecutor when participating in the consideration of criminal cases by courts, since all of them are specified in the Federal Law “On the Prosecutor's Office of the Russian Federation” and the Code of Criminal Procedure of the Russian Federation. It also specifies the powers of the official to conduct a judicial investigation, participate in cassation, appeal and supervisory authorities within the framework of procedural legislation.
Consideration of criminal cases in court
The legal basis for the participation of the prosecutor in criminal proceedings at the stage of trials and hearings is the Constitution of the Russian Federation, the federal law on the prosecutor’s office, orders of the Prosecutor General of the Russian Federation, the Code of Criminal Procedure of the Russian Federation - all these documents regulate the specifics of the inclusion of prosecutors in legal proceedings. According to Article 37 of the Code of Criminal Procedure of the Russian Federation, an official acts as a state prosecutor.
At the same time, the participation of the prosecutor in the consideration of criminal cases by the courts automatically deprives him of the administrative powers that he had before entering the legal process. Here the prosecutor is an equal participant in the meeting. The prosecutor acts on the side of the injured party when filing charges. The position of the prosecutor is opposed to the position of the defense.
Trials in criminal cases are carried out during hearings of courts of any instance. The participation of the prosecutor in criminal cases is mandatory, regardless of the nature of the proceedings. The initiation of public-private or public cases is carried out by the investigator or inquiry officer with the permission of the state prosecutor.
Participation of the prosecutor in the consideration of criminal cases by the courts. Forms of participation.
The Law of the Russian Federation “On the Prosecutor's Office of the Russian Federation”, adopted in 1992, which retained supervision over the implementation of laws as the main function that determines the purpose of the prosecutor's office in the state, no longer considers the participation of prosecutors in the consideration of cases by the courts as an exercise of supervision, classifying it as other functions of the prosecutor's office . In Part 3 of Art. 1 of the Law states: “Prosecutors, in accordance with the procedural legislation of the Russian Federation, participate in the consideration of cases by courts, appeal decisions, sentences, rulings and rulings of courts that are contrary to the law.”
Specific tasks, forms, and procedures for the participation of prosecutors in various stages of judicial proceedings in criminal cases are established by the Criminal Procedure Code of the Russian Federation.
The change in ideas about the relationship between the court and the prosecutor's office in no way means a weakening of the role of prosecutors in criminal proceedings. Their active, professionally competent participation in judicial proceedings is an important condition, one of the guarantees of the legality and effectiveness of the administration of justice.
By taking part in the consideration of the case, the prosecutor contributes to a comprehensive, complete examination of the evidence, the establishment of the circumstances of the case as they actually took place, the correct application of the criminal and criminal procedural law, and the adoption of a lawful and reasonable verdict.
The forms of participation of the prosecutor in the consideration of criminal cases by courts are determined by the Code of Criminal Procedure. This:
participation as a public prosecutor in the trial of a case by a court of first instance;
appealing against sentences, rulings and decisions of courts (judges) that have not entered into force, as well as those that have entered into legal force;
participation in the consideration of criminal cases in the control stages of criminal proceedings - appeal, cassation, supervisory authorities, as well as when resuming proceedings due to new or newly discovered circumstances;
participation in court consideration of issues related to the execution of sentences.
The Criminal Procedure Law and the order of the Prosecutor General of the Russian Federation indicate the mandatory participation of prosecutors in the trial of criminal cases of public and private-public prosecution, as well as in the trial of a criminal case of private prosecution, if the criminal case was initiated by an investigator or with the consent of the prosecutor by an interrogating officer.
The Prosecutor General of the Russian Federation in the Orders “On the organization of prosecutorial supervision over the observance of the constitutional rights of citizens in criminal proceedings” dated November 27, 2007 No. 189 and “On the participation of prosecutors in the judicial stages of criminal proceedings” dated November 20, 2007 No. 185 requires subordinate prosecutors to pay special attention to improving the professional skills of public prosecutors, primarily prosecutors who do not have sufficient experience in participating in trials. To this end, a reliable vocational training system should be established; constantly improve the educational and methodological process, attracting experienced practitioners and legal scholars to participate in training events; study and disseminate positive work experience; increase the role and responsibility of the heads of city and district prosecutors' offices for the quality preparation of public prosecutors for participation in court hearings.
It is proposed to use the media to promote the activities of public prosecutors, to ensure the reliability of materials to be published and their legal validity.
Territorial prosecutors, military and other specialized prosecutors must maintain constant interaction and exchange experience on issues arising in the practice of ensuring the participation of prosecutors in the consideration of criminal cases by courts and bringing submissions on unjust court decisions.
Heads of prosecutor's offices are ordered to regularly support the state prosecution, while prosecutors of the constituent entities of the Russian Federation, equivalent military prosecutors and prosecutors of other specialized prosecutor's offices personally support the state prosecution in criminal cases that cause wide public outcry at least once a quarter. Instructions to support the state prosecution shall be given to subordinate prosecutors in writing.
The Directorate for Ensuring the Participation of Prosecutors in the Consideration of Criminal Cases by the Courts of the General Prosecutor's Office of the Russian Federation is constantly improving the organization of control over the activities of lower-level prosecutors, regularly analyzes the state of work on the participation of prosecutors in the consideration of criminal cases by the courts, the practice of applying criminal and criminal procedural legislation, trends in its changes and develops appropriate recommendations.
The need of the corps of public prosecutors for organizational and methodological assistance should be identified in a timely manner; the department of methodological support, together with the Research Institute of the Academy of the Prosecutor General's Office of the Russian Federation, should develop the necessary manuals and recommendations for use in practical activities.
The Criminal Procedure Code, having secured the leading role of the prosecutor in criminal prosecution, introduced new procedures for criminal proceedings, which require a significant improvement in the quality of maintaining public prosecution and strengthening the corps of public prosecutors.
The main regulatory framework for this area of activity of the prosecutor is the Code of Criminal Procedure of the Russian Federation. The general tasks of the prosecutor’s activities in court are specified in the process of their implementation in criminal proceedings in the form of special (sectoral) tasks. Among the special tasks of this activity of the prosecutor, the main ones can be identified:
— ensuring the participation of the prosecutor in the consideration of criminal cases by the court;
—ensuring the legality of sentences, rulings and court decisions issued in connection with the consideration of criminal cases;
— ensuring in the legal process the legal rights of victims, defendants and other participants in the process.
Enshrining in the law the provision on finding guilty and on the application of criminal punishment only by the court makes the trial the central, decisive stage of the Russian criminal process, and the participation of the prosecutor in the trial is one of the priority areas of his activity
The Law on the Prosecutor's Office (Article 1) considers the activities of the prosecutor in the judicial stages of the criminal process as “the participation of the prosecutor in the consideration of cases by the courts and the appeal of sentences, decisions and rulings of the court that are contrary to the law.”
Thus, the Law on the Prosecutor's Office, determining that the prosecutor's office and the court are not in a relationship of subordination and supervision, indicates that the main task of the prosecutor in court is to fulfill his functions as the prosecution.
The main regulatory framework for this area of activity is the Code of Criminal Procedure of the Russian Federation. A study of this law shows that among the tasks of the prosecutor’s participation in judicial activities, the following should be highlighted:
— ensuring the participation of the prosecutor in the consideration of criminal cases by the court;
— ensuring the legality of sentences, rulings and court decisions issued in connection with the consideration of criminal cases;
— ensuring in the legal process the legal rights of victims, defendants and other participants in the process.
The solution to each of these problems, in turn, determines the need to formulate and subsequently solve a number of more specific, specific problems.
Thus, to solve the first of the mentioned tasks, it is necessary to organize the presence of the prosecutor in court, ensure the participation of the most qualified prosecutor, carry out thorough preparation for the trial of the criminal case, etc.
To solve the second task, the prosecutor must ensure the timely verification of the legality of legal acts (sentences, decisions, rulings) adopted by the court in a criminal case, ensure qualified preparation of submissions, the participation of the prosecutor in the consideration of cases in the cassation and supervisory instances, etc.
Due to the fact that Art. 125 of the Code of Criminal Procedure of the Russian Federation establishes a judicial procedure for appealing decisions of the inquirer, investigator, prosecutor, as well as their actions (inaction), which can cause damage to the constitutional rights and freedoms of participants in criminal proceedings or impede citizens’ access to justice; when considering such complaints in a court hearing, participation is also required prosecutor.
Officials supervising the procedural activities of the inquiry and preliminary investigation bodies must take part in the court of first instance. Prosecutors from departments that ensure the participation of prosecutors in the consideration of criminal cases by courts take part in the review of court decisions made based on the results of consideration of these complaints.
In necessary cases, other prosecutors may participate in these courts at the direction of the heads of prosecutor's offices.
The question of which employee of the prosecutor's office should speak in court in a particular case is decided by the head of the prosecutor's office. This takes into account the nature, volume and complexity of the case, the qualifications and experience of the prosecutor who is entrusted with maintaining the prosecution. As a rule, a prosecutor at the level of the relevant court participates in the trial of a criminal case (in a district court - a district prosecutor, in a regional court - a regional prosecutor, etc.), or their deputies, senior assistants, assistants, senior prosecutors and prosecutors of departments and departments. In the same prosecutor's offices where structural units have been created to ensure the participation of prosecutors in the consideration of criminal cases by courts, employees of these units are appointed
In the most complex, multi-episode cases, cases with a large number of persons brought to criminal liability, the heads of the prosecutor's offices decide on the creation of a group of public prosecutors and the distribution of responsibilities among the members of this group in relation to the characteristics of each specific case.
In a jury trial, specially trained prosecutors with oratory skills act as public prosecutors.
It is especially important for the public prosecutor to carefully prepare for the trial and to study the case materials in depth and in detail.
The preparation of the prosecutor to participate in the process includes, first of all, “a thorough study of the case materials, the main one, familiarization with the legislation, study of the specifics of the crime committed and the development of proposals on the procedure for examining evidence.”
In practice, prosecutors tasked with prosecuting cases use reasonable methods and techniques to examine criminal case materials. Some of them become familiar with the case, starting with reading the indictment. Naturally, with this method, the prosecutor immediately gets to the heart of the case, sees the limits of the charge, the volume of evidence, and the rationale for the legal assessment of the crime.
However, this technique often leads to the fact that the prosecutor begins to adhere only to the version that is put forward by the investigator and substantiated in the indictment, and also analyzes the case materials only within the limits of the evidence specified in the indictment. Meanwhile, the prosecutor, as a state prosecutor, is required to analyze the case materials in full, including the facts that speak in favor of the defendant.
In this regard, it seems that the most rational method is when the prosecutor begins studying the case with a decision to initiate it. In this case, the public prosecutor follows the same path of investigating the circumstances of the case as the investigator, and he understands why the investigator discarded this or that version, why he brought in the persons named in the indictment, and, accordingly, stopped proceedings against others.
The prosecutor must carefully study the materials of the criminal case, even in cases where he supervised its investigation or approved the indictment. Otherwise, the prosecutor will not be able to qualitatively support the state prosecution, since insufficient knowledge of the case materials will bind him.
Due to the fact that summary statements of the testimony of the accused, witnesses, victim, expert opinions, and in some cases verbatim excerpts from these sources of evidence allow the prosecutor to actively participate in the verification and examination of evidence in court, it is necessary to consider in more detail the rules for taking notes in the case.
When taking notes on the case materials, the prosecutor needs to note the contradictions in the testimony of victims, witnesses and accused, and also decide what procedural actions to take at the court hearing to eliminate these contradictions.
The public prosecutor should prepare questions in advance for the participants in the process and, accordingly, present them in strict sequence. It is also advisable to prepare and formulate questions for the expert in advance in order to present them in writing during the judicial investigation.
In addition to studying the evidence, the prosecutor, when familiarizing himself with the materials of the criminal case, should find out whether the requirements of substantive and procedural law were observed during the investigation of the case; whether the investigation was carried out completely and objectively; whether the crime is classified correctly; whether a copy of the indictment was handed over to the defendant in a timely manner, etc.
In cases of crimes specific to the method of their commission, the prosecutor will need knowledge of the methods of their investigation and trial. In this case, it is advisable to study special literature, instructions, orders, and departmental instructions. This category of cases includes cases of violation of safety rules at nuclear energy facilities (Article 215 of the Criminal Code), violation of safety rules when conducting mining, construction and other work (Article 216 of the Criminal Code), violation of traffic safety rules and operation of railway, air or water transport (Article 263 of the Criminal Code), etc.
In preparation for the court hearing, the judge, without prejudging the issue of the guilt of the person who committed the crime, determines the presence or absence of factual and legal grounds for scheduling a court hearing and considering the criminal case on the merits. In the list of questions to be clarified by the judge, there are no questions about whether the act charged with the accused contains the elements of a crime, whether it is correctly classified, since the judge must be free from statements that prejudge the guilt of the accused - otherwise is not consistent with the function of justice carried out by him . When getting acquainted with the materials of the criminal case, the judge, first of all, focuses on clarifying the question of whether there are any obstacles to the court's consideration of the criminal case.
The participation of the prosecutor in the consideration of criminal cases by the court begins from the stage of preparing the criminal case for the court hearing. At the preliminary hearing, the prosecutor participates in the court’s decision on the need to call new witnesses, experts and specialists to court or to exclude evidence, to request material evidence and documents, and the possibility of a preliminary hearing of the case in the absence of any of the persons participating in the case. In connection with the resolution of these issues, the prosecutor expresses his opinion or makes motions.
Despite the fact that the law (Part 4 of Article 234 of the Code of Criminal Procedure of the Russian Federation) allows for the possibility of holding a preliminary hearing in the absence of other notified participants in the criminal proceedings, including the prosecutor, his participation should be considered necessary.
The participation of the prosecutor in the preliminary hearing is necessary because here, in addition to the decision to schedule a court hearing, the judge can make a decision to return the case to the prosecutor, to suspend or terminate the case. In addition, the accused or his defense attorney may file a motion to exclude evidence, to call a witness, to interrogate certain persons who know anything about the circumstances of the investigative actions, to dismiss the case, etc. The prosecutor's timely response to the defense's motions creates the prerequisites for an objective and comprehensive consideration and resolution by the judge. The direct participation of the prosecutor in the preliminary hearing allows him to express objections to unfounded requests made by the defense, to present to the court his position on the key issues to be considered, thereby preventing the unacceptable claims of the opposing party. The principled position of the prosecutor in court is dictated by the need to ensure the rule of law, unity and strengthening of the rule of law, the need to protect the rights and legitimate interests of crime victims.
If a motion is filed to exclude evidence, a copy of it is given to the other party on the day the motion is submitted to the court. The petition must state the grounds for exclusion of evidence (specific violations of procedural law when obtaining evidence) and the circumstances justifying the petition. The judge asks the prosecutor whether he has any objections to this defense motion. If the prosecutor objects to the exclusion of evidence, the judge may read out the protocols of investigative actions and other documents available in the case and presented by the parties. At the request of the parties, persons who know anything about the circumstances of the investigative actions or the seizure and inclusion of documents in the criminal case may also be questioned as witnesses. The burden of refuting the arguments presented by the defense in support of a motion to exclude evidence rests with the prosecutor, which also necessitates his participation in the preliminary hearing.
When carrying out criminal prosecution, the prosecutor acts in court as a public prosecutor. By participating in the consideration of cases by courts, prosecutors contribute to the administration of justice with strict adherence to the rule of law, the implementation of the tasks established by law to ensure the court’s rights of citizens involved in criminal proceedings.
The prosecutor supports the state prosecution before the court, takes part in the examination of evidence, and presents to the court his views on the application of the criminal law and the punishment against the defendant.
The prosecutor takes part in interrogations of the defendant, victim, witnesses, and in the examination of expert opinions and material evidence. The prosecutor participates in judicial debates in a criminal case, delivering an accusatory speech in which he analyzes the evidence examined, makes proposals on issues that the court will discuss and decide in the deliberation room when rendering a verdict.
The prosecutor in court is procedurally independent. In supporting the prosecution, he is guided by the requirements of the law and his inner conviction, based on consideration of all the circumstances of the case. It is on this basis that he decides whether to support the accusation and to what extent, whether to make a cassation submission, etc. No one can impose his point of view on the state prosecutor or demand that he express in court an opinion that contradicts his inner conviction. The objectivity and independence of the prosecutor in court is emphasized by the legal possibility for the prosecutor to refuse to support the state prosecution. The prosecutor is obliged to drop the charges if, as a result of the trial, he comes to the conclusion that the data of the judicial investigation do not support the charges brought against the defendant (Article 246 of the Code of Criminal Procedure of the Russian Federation). The prosecutor cannot withdraw charges before all the circumstances of the case have been examined. Refusal of charges is possible, as a rule, only in court proceedings.
If circumstances established during the trial provide grounds for changing the previously brought charges and recharacterizing the actions of the defendant or excluding from his charges episodes that were not confirmed during the trial, the prosecutor is obliged to report to the court his views on these issues.
The prosecutor brings or supports a civil claim brought by the victim if this is required by the protection of state or public interests or the rights of citizens.
When delivering an indictment in court, the prosecutor:
- characterizes the social danger of the committed act,
— sets out the actual circumstances of its commission;
— analyzes the evidence, its relevance, admissibility, evaluates the evidence;
— gives legal qualification to the act in accordance with specific articles of the Criminal Code of the Russian Federation;
- characterizes the personality of the defendant;
- assesses the circumstances mitigating or aggravating his responsibility;
- analyzes the reasons for committing a crime and the conditions conducive to it,
- makes proposals on the punishment;
— makes proposals on the need to satisfy or reject a civil claim.
There are certain features of the consideration by courts of criminal cases in a special trial procedure with the consent of the accused with the charge brought against him, which are expressed in the consent of the prosecutor to use it. Federal Law No. 141-FZ of June 29, 2009 introduced a special procedure for making a court decision when concluding a pre-trial cooperation agreement in the Code of Criminal Procedure of the Russian Federation. The prosecutor has a special role. It considers the petition for concluding a pre-trial cooperation agreement and the investigator’s decision to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with the suspect or accused within three days from the date of its receipt. Based on the results of the consideration, the prosecutor makes one of the following decisions: 1) to satisfy the request to conclude a pre-trial cooperation agreement; 2) to refuse to satisfy the request to conclude a pre-trial cooperation agreement. In the first case, he invites the investigator, the suspect or accused and his defense attorney, with whose participation he draws up a pre-trial cooperation agreement. There are features of the prosecutor’s activities at the stage of approving the indictment. The prosecutor issues a proposal on the special procedure for holding a court hearing, in which he indicates the factual and legal prerequisites for applying the special procedure for holding a court session and making a judgment in a criminal case against the accused, with whom a pre-trial cooperation agreement has been concluded. It seems incorrect for the legislator to use the term “making” a presentation, since the law on the prosecutor’s office and the Code of Criminal Procedure of the Russian Federation, in particular, paragraph 7 of Art. 5, as well as law enforcement practice applies the concept of “making” a submission.
Preparatory part of the trial in court
The basis for this stage of proceedings is the prosecutor’s decision to initiate a criminal case. At this stage, no actions are taken to consider the case. The purpose of this stage is to preliminary check the presence of procedural conditions, without which further legal proceedings are impossible.
The trial cannot begin earlier than five days from the date of delivery to the accused of a copy of the prosecutor's decision to transfer the criminal case to court, but if the charge is changed, the period increases. In addition, if its end falls on a weekend, then the last day of the period is transferred to the next working day.
If issues of disqualification of a judge are being resolved, the prosecutor pays special attention to their validity. Both the defense and the prosecution have the right to demand the removal from the trial of experts, an interpreter, the secretary of the court hearing or other officials involved in verifying the legality of the decisions made on detention, detention and house arrest, and the extension of the period of these preventive measures. The exclusion of a particular judge from the process in a particular case entails the recusal of his secretary, with the exception of cases of his participation in repeated sessions.
It should also be taken into account that the Code of Criminal Procedure of the Russian Federation has established a list of circumstances under which the prosecutor may demand the exclusion of the defender of the interests of the defendant (lawyer) from the process if:
- the legal representative gave testimony to the investigation related to the criminal case under consideration;
- has a family connection with the accused, is a member of his family, and has exercised the right not to testify against the defendant brought to criminal liability;
- provides legal assistance to persons whose interests conflict with the interests of a suspect accused of committing a crime.
The Russian Code of Criminal Procedure defines motions that can be filed by the prosecutor or the defense, including interrogation of new witnesses, calling experts, specialists, requesting material evidence, studying documents, etc. The prosecutor has the right to apply for the request of new evidence, including inviting new witnesses if there are grounds .
The court has the right to refuse or satisfy the request made by the prosecutor, therefore the public prosecutor should carefully motivate his statements and express an opinion, justify the need to satisfy or reject the requests of the other party. At the same time, the prosecutor must adhere to a certain position and confidently promote it. From a public prosecutor, statements like “at the discretion of the court” are not acceptable.
Criminal prosecution carried out by the prosecutor
In accordance with Part 1 of Art. 37 of the Code of Criminal Procedure of the Russian Federation, the prosecutor is authorized to carry out criminal prosecution. However, this area of the prosecutor’s activity has not received special development either in the Code of Criminal Procedure of the Russian Federation or in the law “On the Prosecutor’s Office of the Russian Federation”. Therefore, the authors of many works devoted to the activities of the prosecutor’s office consider criminal prosecution either as the activity of the prosecutor’s office to investigate criminal cases131 or as the main function of the work of the prosecutor132.
According to paragraph 55 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, criminal prosecution is a procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime. But since the prosecutor belongs to the prosecution (clause 47 of article 5 of the Code of Criminal Procedure), then, consequently, he carries out criminal prosecution aimed at exposing the person who committed the crime. In the Prosecutor's Handbook, the essence of criminal prosecution is defined as follows: it is implemented when initiating a criminal case against a specific person, when detaining him, applying a preventive measure, bringing him to criminal responsibility, during investigative actions that limit the constitutional rights of suspects and accused133.
All of the above allows us to believe that criminal prosecution carried out by the prosecutor in the pre-trial stages may consist of initiating a criminal case against a specific person, taking procedural coercive measures against him, choosing a preventive measure, filing charges, approving an indictment, and sending the case to court. However, criminal prosecution is not the same as the investigation of criminal cases carried out by investigators of the prosecutor's office or by the prosecutors themselves. Investigating criminal cases and maintaining state prosecution in court are forms of criminal prosecution, but do not exhaust it'34. The very concept of criminal prosecution carried out by a prosecutor is already the concept of investigating criminal cases. An investigation may be conducted to establish whether someone has committed a crime, while a criminal prosecution is directed directly at a specific person suspected or accused of committing a crime. The Prosecutor General names the prosecutor as the head of the criminal prosecution. This should, in our opinion, be understood as the commission of actions through which the prosecutor organizes the prosecution of the person who committed the crime. At the same time, the conduct of investigative actions by himself or on his behalf by the competent investigative or inquiry body is only part of the ongoing criminal prosecution.
At the same time, criminal prosecution is carried out by the prosecutor mainly through forms of supervision over the procedural activities of the investigative and inquiry bodies when they carry out investigations (inquiries) in criminal cases. Thus, by giving the investigator consent to initiate a criminal case, the prosecutor carries out his supervisory function, but at the same time, due to the fact that the case has been initiated, the process of criminal prosecution begins. The same thing happens when the prosecutor cancels the decision to refuse to initiate criminal proceedings. In this case, he applies his supervisory function. But
6.4. The essence, subject and tasks of the prosecutor's supervision over the legality of the procedural activities of the preliminary investigation and inquiry bodies
The essence of the prosecutor's supervision is that he supervises compliance with the Constitution of the Russian Federation and the implementation of laws in force on the territory of the Russian Federation. Consequently, through prosecutorial supervision, the interests of society, the state, and citizens must be protected and protected from criminal attacks. This includes the protection of the constitutional system, national equality of peoples and citizens, the fight against extremism and terrorism, the protection of state and private property, compliance with laws during economic reforms, the protection of life, health, honor and dignity of people, etc. The essence of supervision also consists in protecting the rights and legitimate interests of victims, suspects, accused, and other participants in criminal proceedings at the pre-trial stage. The prosecutor, in relation to this area, in accordance with his powers, must identify, eliminate and prevent violations of the Constitution and other laws that involve the commission of crimes, as well as procedural violations on the part of the bodies of inquiry and preliminary investigation when investigating criminal cases. Since the subject of the prosecutor's supervision in general is the legality of actions and legal acts, in relation to the area under consideration, the subject of supervision is the observance of the rights and freedoms of man and citizen, the fulfillment of the requirements of federal law when receiving, registering and resolving reports of crimes, initiating criminal cases, conducting inquiries and preliminary investigations. investigation, selection of preventive measures, suspension and termination of criminal cases. sending cases to court with an indictment, as well as the legality of other actions and decisions taken by the bodies carrying out the inquiry and preliminary investigation. This subject determines the tasks of prosecutorial supervision in this area.
The objectives of supervision are: 1. No crime should remain unsolved and no person who committed a crime should escape responsibility established by law.
2. The detention of citizens on suspicion of committing crimes cannot be carried out otherwise than in the manner and on the grounds established by law.
3. No one should be subjected to illegal and unjustified prosecution or other unlawful restrictions on their rights.
4. No one may be arrested without a court order.
5. The established procedure for initiating and investigating criminal cases, the timing of the investigation, and the rights of participants in criminal proceedings and other citizens must be observed.
6. When investigating crimes, it is necessary to comply with the requirements of the law for a comprehensive, complete and objective study of all the circumstances of the case, identifying both incriminating and exculpatory circumstances of the accused, as well as circumstances that may aggravate or mitigate his punishment when a subsequent sentence is passed.
7. The causes of crimes and the conditions conducive to them must be identified and measures taken to eliminate them.
Along with these tasks, Order of the Prosecutor General No. 31 of June 18, 1997 defines specific tasks for the activities of the prosecutor's offices, these are:
1. unconditional response to identified violations of laws at all stages of criminal proceedings;
2. protection of the rights and legitimate interests of crime victims;
3. timely verification of the legality of decisions of investigators and interrogators on each report of a crime;
4. checking the legality of the detention of citizens, as well as ensuring the legality of detention;
5. suppression and prevention of organized crime;
6. prevention of crime among minors;
7. focusing efforts on ensuring the detection and suppression of intentional murders, banditry, terrorism, economic crimes and corruption, illegal trafficking in weapons and drugs;
8. supervision over the legality of decisions made by the bodies of inquiry and preliminary investigation that affect the constitutional rights and freedoms of citizens.
Further development of the content of the tasks by the Prosecutor General is given in Order No. 39 of July 5, 2002 “On the organization of prosecutorial supervision over the legality of criminal prosecution at the pre-trial stage,” adopted to exercise the powers of the prosecutor in accordance with the Code of Criminal Procedure of the Russian Federation. Among the most important of them can be named: the requirement to avoid delay in initiating a criminal case when there are obvious signs of a crime, strict adherence to the procedure for criminal proceedings in relation to persons listed in Part I of Art. 447 of the Code of Criminal Procedure (in relation to a member of the Federation Council, a deputy of the State Duma, a deputy of a government body of a constituent entity of the Russian Federation, a deputy, a member of an elected body and an official of a local government body, judges of all levels, prosecutors, investigators, lawyers, the former President and candidate for President, the Chairman The Accounts Chamber of the Russian Federation, its deputies and auditors, the Commissioner for Human Rights in the Russian Federation), ensuring timely extension of periods of detention and investigation of criminal cases, studying with particular care the compliance of the conclusions of the preliminary investigation bodies with the actual circumstances of the case when approving the indictment.
1 6.5. Powers, forms and methods of supervision of the prosecutor over the procedural activities of the bodies of inquiry and preliminary investigation
The powers of the prosecutor in this direction are regulated in accordance with Art. 30 of the Law of the Russian Federation “On the Prosecutor's Office of the Russian Federation”, the Code of Criminal Procedure of the Russian Federation, the Law of the Russian Federation “On the detention of suspects and accused of committing crimes” of June 21, 1995, as amended and supplemented, as well as other laws. When characterizing powers, one should take into account decisions made by the Constitutional Court of the Russian Federation on issues related to the operation of the norms of the Code of Criminal Procedure of the Russian Federation and the implementation of the constitutional rights of citizens.
Speaking about the powers of the prosecutor in supervising procedural activities, it is advisable to compare the Code of Criminal Procedure of the Russian Federation with the Code of Criminal Procedure of the RSFSR in regulating the activities of the prosecutor.
A number of fundamental changes should be noted.
The supervision of the prosecutor, according to the new Code of Criminal Procedure, is carried out only within the framework of pre-trial proceedings. Pre-trial proceedings are the stages of inquiry and preliminary investigation. In these stages, the prosecutor is vested with powers that allow him to supervise the procedural activities of the inquiry bodies and preliminary investigation bodies (Article 37 of the Code of Criminal Procedure), whereas in accordance with the EO Art. 25 of the Code of Criminal Procedure of the RSFSR, the prosecutor supervised the precise and uniform execution of laws at all stages of criminal proceedings before proceedings and was obliged to promptly take measures provided for by law to eliminate any violations of the law, no matter who these violations originated from. Supervision of procedural activities excludes the fact that the prosecutor is, as previously stated by some authors, the procedural leader in the investigation of a criminal case. The power to carry out criminal prosecution on behalf of the state is its right, which corresponds to its duty to supervise compliance with the law in the investigation and inquiry of criminal cases. But since we are talking about supervision, the prosecutor cannot be held responsible for the results of this investigation or inquiry until an indictment or indictment has been confirmed. The legislator did not indicate in the list of powers of the prosecutor listed in Part 2 of Art. 37 of the Code of Criminal Procedure, such as checking the materials of a criminal case, although he is obliged to do this to fulfill other powers, such as, for example, giving written instructions on the election, change or cancellation of a preventive measure, the classification of a crime, on the direction of the investigation, on the conduct of investigative and other procedural actions. And the prosecutor himself can carry out individual investigative and other procedural actions, and has the right to exercise other powers. However, without familiarization with the materials of the criminal case, all these powers cannot be effectively fulfilled.
The indication of this authority in the Code of Criminal Procedure of the RSFSR (Article 211) also implied the obligation of the prosecutor to ensure that the investigation of the case leads to the result of bringing to criminal responsibility the person who committed the crime. This should have been regular control that would have prevented violations of the law, bias, incompleteness of the investigation, and failure to clarify circumstances mitigating the punishment.
When exercising supervision in this area, the powers of the prosecutor, unlike the powers in general supervision, are of an authoritative and administrative nature. This feature of the power, which does not allow dispositiveness for the subjects to whom the prosecutor’s demand is addressed, is associated with the need to take timely measures to solve crimes and investigate criminal cases, eliminate violations of the law during the investigation, as well as to protect human and civil rights. Without the prompt intervention of the prosecutor, provided by administrative and administrative powers, the solution of these problems would be impossible.
The authoritative-administrative nature of the powers is manifested in the fact that the prosecutor has the right to cancel illegal and unfounded decisions of investigators and persons conducting inquiries, give written instructions during investigations, inquiries, as well as operational-search activities, authorize a number of important investigative acts and other actions, support petitions from investigators and inquiries before the court.
The powers of the prosecutor to give written instructions on the investigation of crimes, on the selection, change or cancellation of a preventive measure, on the performance of investigative and other procedural actions and the search for persons who committed crimes, the implementation of operational investigative measures, or personally carry out certain investigative and other procedural actions, to confiscate any criminal case from the investigative body and transfer it to the investigator, transfer the criminal case from one investigator of the prosecutor's office to another, seize and transfer the case from one preliminary investigation body to another and, finally, transfer the case from them to the investigator of the prosecutor's office allow him to actively influence the detection of crimes and the results of criminal investigations cases, ensure the legality of this investigation; respect for the legal rights and interests of participants in criminal proceedings and other citizens. They also allow him to ensure the independence of investigators in the investigation of criminal cases. It must be borne in mind that a feature of the relationship between the prosecutor and the investigator is that the investigator has the right, in cases of disagreement with the actions or inactions and decisions of the prosecutor, to present the case to a higher prosecutor with a written statement of his objections. Such an appeal does not suspend the execution of the prosecutor’s demands, with the exception of those provided for in Art. 38 part 3 of the Code of Criminal Procedure of the Russian Federation cases: on the involvement as an accused, on the qualification of the crime, the scope of the charge, on the selection of a preventive measure or the cancellation or change of a preventive measure chosen by the investigator in relation to the suspect or accused, on the refusal to give consent to bring before the court petitions for the election of a preventive measure or for the performance of other procedural actions provided for in paragraphs 2 of Part 2 of Art. 29 of the Code of Criminal Procedure, on sending a criminal case to court or on its termination, on disqualifying an investigator or removing him from further investigation, on transferring a case to another investigator when the execution of instructions is suspended. Having received written objections from the investigator, the superior prosecutor either cancels the decision of the inferior one, or entrusts the investigation of the case to another investigator.
The Prosecutor General of the Russian Federation requires prosecutors to take timely measures to protect the procedural independence of investigators when investigating a criminal case and to suppress illegal influence in any form on them in order to prevent external influence on the course of the investigation and the decision taken in the case.
According to Art. 211 of the Code of Criminal Procedure of the RSFSR, an important power of the prosecutor was his right to demand for verification criminal cases, documents, materials and other information about the crimes committed, the progress of the inquiry, the preliminary investigation and the identification of the persons who committed the crimes. Now in Art. 37 of the Code of Criminal Procedure of the Russian Federation does not have such authority. However, it seems that such authority of the prosecutor follows from other powers with which he is vested to supervise the procedural activities of the inquiry bodies and investigators, and consists, in particular, in the right: to transfer a case from one investigator to another, to give consent to initiate a criminal case, to participate in the conduct of a preliminary investigation, terminate and suspend criminal cases, give instructions on filing charges and choosing a preventive measure, etc. Without studying the relevant criminal cases or materials and documents, the implementation of these and other powers is impossible.
In Part 2 of Art. 37 of the Code of Criminal Procedure provides a list of powers of the prosecutor, which cannot be considered exhaustive, since other articles provide other powers. So, in part 3 of Art. 37 regulates the rules applied when giving written instructions, one of the important powers of the prosecutor. In Part 3 of Art. 38 refers to the powers of the prosecutor, not mentioned in the list, which can be challenged in the prescribed manner by the investigator to a higher prosecutor. In Part 4 of Art. 39, the investigator is given the right to submit a written objection to the prosecutor to the instruction of the head of the investigative department, which should presuppose the authority of the prosecutor to cancel such an instruction. It seems that it would be correct to mention such powers in the law.
Among the most important powers should be the right to verify compliance with the requirements of federal law when resolving reports of crimes, to give consent to the initiation of a criminal case by an investigator or body of inquiry, to participate in the preliminary investigation, to give consent to initiate a petition before the court for detention, to confiscate and transfer criminal cases on legal grounds, remove the relevant officials from the inquiry and preliminary investigation, extend the period of the preliminary investigation, cancel the decisions of the investigator or the inquiry body, approve some decisions of the investigator, the inquiry body to terminate the case, return the criminal case to further investigation, entrust the maintenance of the charges to the investigator or the investigator who conducted the investigation into the case sent to the court.
An important power of the prosecutor is the right to initiate criminal cases. Having discovered, after appropriate verification, that the actions of a person contain signs of a crime, he can initiate a criminal case or criminal prosecution. This right of the prosecutor allows him to intervene in a timely manner and effectively influence the results of the fight against each crime and crime in general. Apparently, given the existence of this authority, the Prosecutor General believes that in pre-trial proceedings in a criminal case, the prosecutor is the head of the criminal prosecution.
In cases where the prosecutor does not see events or elements of a criminal act in the actions of a person brought to criminal responsibility, as well as in other cases established by law, he may terminate the criminal case or criminal prosecution.
Among the powers, one should indicate the right of the prosecutor to transfer the case under investigation, indicating the grounds for this, the right to take the case from one investigator and transfer it to another, the right to remove the person conducting the inquiry or the investigator if they committed a violation of the Code of Criminal Procedure during the investigation of the case. At the same time, it should be taken into account that the right to transfer a case from one preliminary investigation body to another is limited by the indication in paragraph 9 of Part 2 of Art. 37 of the Code of Criminal Procedure, that such a transfer can only be made in accordance with the rules of Art. 15! of the Code of Criminal Procedure of the Russian Federation within the framework of jurisdiction, and the transfer of the case from the preliminary investigation body to the investigator of the prosecutor's office with the obligatory indication of the grounds for such transfer.
The prosecutor has the exclusive right and duty to send the case to court with an approved indictment or indictment if the necessary evidence has been collected to support the accusation. This right of his creates the necessary preconditions for the consideration of the case by the court and the establishment of the guilt of the person accused of committing a crime.
He also has the right to invite officials carrying out the inquiry and preliminary investigation to give explanations regarding the detected violations of laws. If necessary and if there are grounds for it, the prosecutor takes measures to bring to justice in the prescribed manner those officials guilty of violating the laws. Regarding the identified violations, he makes submissions to the competent authorities of inquiry and investigation.
The prosecutor also exercises other powers established by law.
The responsibility to directly and constantly monitor how the preliminary investigation is being conducted in its entirety is assigned to the head of the investigative department, who, in accordance with Article 39 of the Code of Criminal Procedure, is granted fairly broad rights to monitor the activities of investigators. It appears that the powers vested in the prosecutor do not require him to duplicate the control of the head of the investigative department.
Indeed, the head of the investigative department can check the materials of the criminal case, he has the right in the manner established by Art. 146 of the Code of Criminal Procedure of the Russian Federation, initiate a criminal case with the consent of the prosecutor, give instructions to the investigator on the direction of the investigation, the conduct of certain investigative actions, the prosecution of a person as an accused, the election of a preventive measure against the suspect, the accused, the qualification of the crime and the scope of the charges, cancel unfounded the investigator's decision to suspend the preliminary investigation, withdraw the criminal case from one investigator and transfer it to another with the obligatory indication of the grounds for such a decision, create an investigation team, change its composition. He also has the right to petition the prosecutor to cancel other illegal and unfounded decisions of the investigator. He basically had these powers before (except for the cancellation of decisions to suspend the case). But then they were overlapped by the powers of the prosecutor listed in Art. 211 Code of Criminal Procedure of the RSFSR.
Due to the absence in the Code of Criminal Procedure of the Russian Federation of such a list of powers of the prosecutor, it is the head of the investigative department of the preliminary investigation body who has the direct responsibility to take timely necessary measures to ensure a full investigation, and for inadequate control over the investigation he bears full responsibility.
It seems to us that such changes give rise to serious problems. We must not lose sight of the personnel composition of the Ministry of Internal Affairs investigators in small areas. These are mainly persons who have neither life, nor legal, nor business experience. The vast majority of investigators working in the Ministry of Internal Affairs recently came from their student days, others do not even have a higher legal education. Many of them work in district/mountain departments where there are no heads of investigative departments. Prosecutors of districts and small cities, guided by the previous Code of Criminal Procedure of the RSFSR and the instructions of the Prosecutor General of the Russian Federation, constantly helped these investigators, studied the specific cases they were investigating, gave the necessary advice and thereby prevented or eliminated omissions in their activities. In accordance with the new Code of Criminal Procedure, the influence of prosecutors on the investigation of criminal cases is significantly reduced. Procedural management of the investigation by prosecutors in the Ministry of Internal Affairs has actually been abolished, since procedural supervision does not correspond to the function of managing the investigation. It seems that changing the function of the prosecutor to the limits of procedural supervision will cause difficulties both in ensuring the quality of investigative actions and their timeliness. It can be almost confidently predicted that the investigation time will increase, especially since the possibilities for this have been created under the new Criminal Procedure Code. The district and city prosecutor was given the right to extend the investigation period to 6 months (Part 4 of Article 162 of the Code of Criminal Procedure of the Russian Federation) instead of 3 months according to Part 2 of Art. 133 Code of Criminal Procedure of the RSFSR. And indeed, according to the General Prosecutor's Office, in 2004, more than
50% of criminal cases.
A significant change in the powers of the prosecutor is that the inquiry officer, the inquiry body or the investigator without his consent do not have the right to initiate a criminal case. This power, previously not characteristic of the supervisory activities of the prosecutor, according to the legislator, should strengthen the influence of the prosecutor on the legality of the activities of internal affairs departments and investigators. Initiating a criminal case is an important procedural stage, and procedural supervision over its legality by the prosecutor should certainly help protect the rights and interests of citizens, especially those against whom there may be a suspicion that they have committed a crime. The practice of the operational investigative services of the police shows that for “obvious” crimes, the investigation bodies and investigators of the Ministry of Internal Affairs, in accordance with the old Code of Criminal Procedure, initiated cases quite actively, which often led (thanks to the desire of responsible officials to “report” to the top about their successes) to premature and wrong decisions. The procedure when the prosecutor must, before giving consent, familiarize himself with the materials of checking a report of a crime, and in the case of carrying out individual investigative actions to consolidate traces of a crime, with a protocol for examining the scene of the crime, an examination, a decision on the appointment of a forensic examination, sharply reduces the possibility of making mistakes under the influence of superiors departments of internal affairs responsible for solving crimes, who in some cases tried to force the investigator or inquiry officer to initiate a criminal case when there were no legal grounds for this yet. The new power of the prosecutor strengthens the normative effectiveness of supervision, but at the same time complicates the practice of its activities. Difficulties of this kind arise: often crimes, including grave and especially grave ones, are committed in the evening or at night, when it becomes difficult to immediately obtain the consent of the prosecutor to initiate a case. Meanwhile, carrying out investigative actions without initiating a criminal case, except for inspecting the scene of the incident (Article 176, Part 2 of the Code of Criminal Procedure) and examining and ordering a forensic examination, is not allowed. Quite rightly, this problem is solved by introducing the prosecutor’s duty during non-working hours, otherwise his consent to initiate a case will turn into a formality or will be given retroactively in order to give the appearance of legality,
when in fact the investigation is already in full swing. Initiating a case before obtaining the consent of the prosecutor will lead to the fact that all obtained evidence will be inadmissible (see Article 75 of the Code of Criminal Procedure of the Russian Federation), since it will be obtained in violation of the requirements of the law (Part 3 of Article 7 of the Code of Criminal Procedure of the Russian Federation).
As can be seen from the Order of the Prosecutor General No. 39, instructions on the duty of prosecutors during non-working hours were given to subordinate prosecutors. However, such a solution to the problem does not relieve difficulties for the investigator or detective, since the efficiency in carrying out investigative actions is sharply reduced. The investigator (inquiry officer) is deprived of the opportunity to immediately interrogate the victim or witness if the prosecutor’s consent to initiate the case has not yet been received.
The forms of supervision of the prosecutor are determined by his powers and activities aimed at identifying, eliminating and preventing violations of the law. These forms require the use of appropriate methods with the help of which violations of laws are identified and eliminated. Forms of supervision at this stage may include conducting inspections of rejected materials, studying criminal cases being processed by investigators or bodies of inquiry, visiting places of detention of detainees and arrested persons, visits of the prosecutor to the scene of the incident, participation in the most important investigative actions, authorization (dacha consent) of individual investigative actions, approval of the indictment. Each of these and other forms can be implemented in various ways. For example, participation in an interrogation can be carried out by simply being present or actively conducting it by the prosecutor himself, and studying the case can be done by listening to the investigator’s report or reading the documents contained in it. In the same way, giving consent for the investigator to initiate a petition to carry out investigative actions provided for in paragraphs 4 - 9 and 11 of part 2 of Art. 29 of the Code of Criminal Procedure (for example, on choosing a preventive measure in the form of detention or on conducting a search and (or) seizure) may be preceded by a study of the case materials, but can only be carried out based on the report of the investigator. Often the form and method of verification depends on the experience of the prosecutor or his trust in the official investigating the case. The Prosecutor General of the Russian Federation considers one of the most effective forms of supervision to be the visit of prosecutors, their deputies, and other operational employees of the prosecutor's office to the scene of an incident upon receipt of reports of murder, terrorism, banditry, and other particularly serious crimes. Taking part in the inspection of the crime scene, the prosecutor simultaneously has the opportunity to organize and coordinate the efforts of investigators and operational search services in carrying out the necessary operational activities and investigative actions that are key to solving a crime and investigating a criminal case.
Giving consent to initiate a petition before the court for a preventive measure in the form of detention, the prosecutor or his deputy, and in some cases on their behalf an assistant, as a rule, interrogate the person subject to arrest, check the availability of evidence of his participation in the commission of the crime, the arguments of the accused about his innocence or the presence of mitigating circumstances, violation of the right to defense, putting pressure on him, etc. When deciding whether to arrest a minor, the prosecutor personally interrogates the accused. This allows him to make the right decision not only taking into account the severity of the crime, but also to avoid mistakes associated with the possibility of an accidental combination of circumstances or the involvement of a minor in a crime by other persons.
In case of refusal to give consent to initiate a criminal case or in case of refusal to support a petition to the court to select a preventive measure - detention - the prosecutor must set out the reasons for such a decision on the investigator's resolution or in a separate document. For example, when refusing to give consent to initiate a criminal case, the prosecutor must issue a resolution on such refusal (Part 4 of Article 146 of the Code of Criminal Procedure).
It seems that a written justification for refusing to support a petition to select a preventive measure in the form of detention is also needed, although there is no direct indication of this in the Code of Criminal Procedure. It is not uncommon for the body of inquiry or the investigator to disagree with the prosecutor’s refusal and to ask a higher prosecutor to check his decision. When checking the validity of the refusal and in order for the superior prosecutor to make a decision, it is necessary to find out what the motives of the lower prosecutor who refused to support the petition are, which must be reflected in a written document.
An important form of supervision is to check the implementation of procedural interaction between the investigator and the bodies of inquiry, as well as the implementation by the bodies of operational-search activities of written instructions on conducting operational-search activities to obtain information about persons who committed crimes, the location of the property stolen by them, subject to arrest, the search for an absconding accused and suspect, other circumstances significant to the case. When checking such interaction, the prosecutor needs to establish whether the investigator gave the body carrying out operational-search activities the necessary instructions and how these instructions were carried out. Are there any cases of employees of the inquiry agency holding meetings with a suspect or accused to conduct operational search activities without the written permission of the inquiry officer, investigator, prosecutor or the court in charge of which the case is pending, which is not allowed in accordance with Part 2 of Art. 95 Code of Criminal Procedure. Also, the prosecutor must pay attention to the investigators’ compliance with the requirements of Art. 89 of the Code of Criminal Procedure on the use in proving the results of operational investigative activities. It is prohibited to use the results of an operational investigation in the process of proof if they do not meet the requirements for evidence in accordance with the Code of Criminal Procedure. The prosecutor must ensure that the requirements of Art. 41 of the Code of Criminal Procedure on the inadmissibility of conducting an inquiry by a person who has carried out or is carrying out operational investigative measures in this case.
6.6. Supervision of compliance with the requirements of federal law when receiving, registering and resolving reports of crimes
One of the most important forms of supervision over the procedural activities of the inquiry bodies and investigators is checking the implementation of laws when receiving, registering, recording applications and reports of crimes. To increase the efficiency of inspections, reports from internal affairs bodies, media signals, citizens' appeals, information from medical institutions, and the like are used.
In the court of first instance
The prosecutor in a criminal case takes part at the preparation stage and directly at the stage of the court hearing. In some cases, a preliminary hearing is required, which is not held without a prosecutor. The reason for conducting preliminary proceedings may be a petition from any party that can influence the course of criminal proceedings, in particular, cause its termination, the exclusion of certain evidence and documents from the case. In addition, the presence of a prosecutor in court for a criminal case is of practical importance.
So let's continue. The judge has the right to return the criminal case to the prosecutor until the obstacles to its further consideration by the court are removed. Prosecutors actively participate in the consideration of defense motions, present reasoned arguments for their rejection or satisfaction, allowing the judge to make the right decisions about whether to schedule the case for hearing or not.
Public prosecution is sometimes carried out in criminal cases with the participation of a prosecutor or several public prosecutors. Their task during the proceedings is to present the evidence base, study the facts, evidence, and alibi of the accused. The prosecutor is obliged to present to the judges his position and arguments on the charges, supporting them with facts and irrefutable evidence of the defendant’s guilt. In addition to initiating a criminal case, the prosecutor has the right to terminate the proceedings for lack of evidence of a crime, however, if all the facts indicating the defendant’s guilt are proven, the prosecutor makes his proposal to impose a punishment. In parallel with criminal proceedings, the state prosecutor can provide assistance and support to the injured party in a civil case if the participation of the prosecutor will protect the rights of citizens, their public or state interests.
Refusal of charges in court
This concept should not be confused with the prosecutor’s refusal to initiate a criminal case. It is resorted to only when, during the proceedings, the prosecutor comes to the conclusion that the evidence provided is not sufficient to bring charges against the defendant. Termination of a criminal case by the prosecutor means a abandonment of the previously held position, which provides grounds for acquitting the arrestee. The prosecutor is obliged to state the reasons for his refusal, objectively assessing the evidence examined in court. An official may renounce the accusation by submitting a corresponding statement.
The initiation of a criminal case by the prosecutor does not guarantee a conviction. The state prosecutor may waive the charges against the defendant completely or only part of the charges. A complete refusal entails the automatic termination of criminal proceedings (for example, at the preparatory stage of the court hearing when establishing the identity of the accused, it became known that the suspect has not yet reached the age at which criminal liability begins by law).
Until the prosecutor takes the initiative to terminate the proceedings, he is a full participant in the case who helps establish important circumstances, gives objective assessments of each fact and creates conditions for the court to make legal, informed and fair decisions. During the debate between the parties, the prosecutor makes his proposals regarding the punishment for the defendant. The demands of the public prosecutor must comply with the law, be fair and proportionate to the crime committed.
Features of criminal procedure legislation
In addition to the general procedure for the participation of the prosecutor in criminal proceedings, it is worth noting some features of the proceedings in the first instance. This procedure is used when studying any cases in courts of general jurisdiction (including appellate and cassation courts), without differentiation by degree of complexity and severity. For criminal proceedings, there are special regulations that affect both the pre-trial and judicial stages of proceedings, as well as the functions of the prosecutor.
For example, the law provides for a separate procedure for making decisions if the defendant agrees with the charges brought by the prosecutor. Returning a criminal case if it does not comply with the norms of the Code of Criminal Procedure of the Russian Federation at this stage is impossible, as evidenced by Chapter 40 of the same legal act. Without a thorough trial, a sentence is imposed only when a person is accused of an illegal act, which is punishable by imprisonment for a term of up to 10 years.
If the criminal admits his guilt and fully agrees with the position of the state prosecutor, the prosecutor issues a motion for sentencing without procedural proceedings, which means that the defendant can count on a certain leniency. Thus, the judge does not have the right to impose a sentence on the accused that exceeds two-thirds of the maximum possible term of imprisonment or the amount of the fine provided for this crime.
Thus, without the official position of the prosecutor and the consent of the defendant to cooperate, it is impossible to pass a sentence based on this rule, provided for by the Code of Criminal Procedure of the Russian Federation. A similar procedure is established when concluding a cooperation agreement with a suspect before a court hearing. This procedure is used in any category of criminal proceedings. This technique is especially effective in cases of serious or especially serious crimes, among which the overwhelming majority of episodes are related to organized crime. The purpose of such procedural simplification is to attract the cooperation of defendants and persons involved in a criminal case.
Pre-trial proceedings
The participation of the prosecutor in criminal cases involves assisting the investigative authorities in solving the crime, that is, pre-trial proceedings. The chances of solving a crime will increase significantly if the prosecutor manages to conclude a cooperation agreement between the injured party and the suspect, which obliges the defendant to take a number of actions aimed at:
- providing assistance and assistance to the investigation in solving and investigating a criminal case;
- exposing other defendants in the crime;
- return of property obtained illegally.
By making a deal with the investigation, the defendant can count on guaranteed preferences when sentencing and determining the punishment. In some cases, suspects are released from serving their sentences subject to a number of conditions and compliance with all points of the agreement concluded during pre-trial proceedings.
The decision of the prosecutor on the received criminal case has a formal significance here. The role of the state prosecutor is reduced to drawing up a written agreement on the cooperation of the accused with the investigation. The prosecutor can sign a document on a pre-trial agreement not only with the suspect himself, but also with the person representing the interests of the defendant.
The prosecutor's conclusion (subject to the signing of a pre-trial cooperation agreement) must reflect the progress in fulfilling the obligations assumed by the accused. When making a final verdict, the judge takes into account whether the defendant has fulfilled all the terms of the agreement on cooperation with the investigation. The prosecutor's indictment in a criminal case also takes into account the suspect's assistance to the investigation. As a rule, in these cases the criminal case has a more favorable outcome for the defendant.
Criminal Procedure Code of the Russian Federation:
Article 37. Prosecutor
1. The prosecutor is an official authorized, within the competence provided for by this Code, to carry out criminal prosecution on behalf of the state during criminal proceedings, as well as supervision over the procedural activities of inquiry bodies and preliminary investigation bodies.
2. During pre-trial proceedings in a criminal case, the prosecutor is authorized to:
1) verify compliance with the requirements of federal law when receiving, registering and resolving reports of crimes;
2) make a reasoned decision to send the relevant materials to the investigative body or the inquiry body to resolve the issue of criminal prosecution based on violations of criminal law identified by the prosecutor;
3) demand from the bodies of inquiry and investigative bodies the elimination of violations of federal legislation committed when receiving, registering and resolving reports of crimes, conducting an inquiry or preliminary investigation;
4) give the investigator written instructions on the direction of the investigation and the conduct of procedural actions;
5) give consent to the investigator to initiate a petition before the court for the selection, cancellation or change of a preventive measure or for the performance of another procedural action that is permitted on the basis of a court decision;
5.1) request and verify the legality and validity of the decisions of the investigator or the head of the investigative body to refuse to initiate, suspend or terminate a criminal case and make a decision on them in accordance with this Code;
5.2) consider a petition for concluding a pre-trial agreement on cooperation and a resolution of the investigator to initiate a petition before the prosecutor to conclude a pre-trial agreement on cooperation with the suspect or accused, make a decision to satisfy such a petition or refuse to satisfy it, conclude a pre-trial agreement on cooperation, make a decision to amend or terminate such an agreement in the manner and on the grounds provided for by this Code, as well as to make a submission on the special procedure for holding a court hearing and making a court decision in a criminal case in relation to the accused with whom a pre-trial cooperation agreement has been concluded;
6) cancel illegal or unfounded decisions of a lower-ranking prosecutor, as well as illegal or unfounded decisions of the inquiry body, the head of the inquiry body, the head of the inquiry unit and the investigator in the manner established by this Code;
7) consider the investigator’s information about disagreement with the prosecutor’s demands presented by the head of the investigative body and make a decision on it;
participate in court hearings when considering during pre-trial proceedings issues on the selection of a preventive measure in the form of detention, on extending the period of detention or on the abolition or change of this preventive measure, as well as when considering petitions for other procedural actions that are allowed in on the basis of a court decision, and when considering complaints in the manner established by Article 125 of this Code;
8.1) if there are grounds to file a petition with the court to extend the period of prohibition of certain actions, the period of house arrest or the period of detention in a criminal case received or sent to the court with an indictment or a decision to send the criminal case to the court for the application of a compulsory measure of a medical nature , as well as a petition for permission to cancel the decision to terminate a criminal case or criminal prosecution in the case provided for in part one.1 of Article 214 of this Code;
9) allow challenges filed to the investigator, as well as his self-recusations;
10) remove the investigator from further investigation if he committed a violation of the requirements of this Code;
11) withdraw any criminal case from the investigative body and transfer it to the investigator with the obligatory indication of the grounds for such transfer;
12) transfer a criminal case or materials for checking a crime report from one preliminary investigation body to another (except for the transfer of a criminal case or materials for checking a crime report in the system of one preliminary investigation body) in accordance with the rules established by Article 151 of this Code, confiscate any criminal the case or any materials for checking a report of a crime from the preliminary investigation body of the federal executive body (under the federal executive body) and transfer it (them) to the investigator of the Investigative Committee of the Russian Federation with the obligatory indication of the grounds for such transfer;
13) approve the decision of the investigator to terminate the criminal proceedings;
14) approve an indictment, indictment or indictment in a criminal case;
15) return the criminal case to the inquirer, investigator with his written instructions to conduct an additional investigation, to change the scope of the charge or qualification of the actions of the accused, or to re-draft the indictment, indictment or indictment order and eliminate identified deficiencies;
16) exercise other powers granted to the prosecutor by this Code.
2.1. Upon a reasoned written request of the prosecutor, he is given the opportunity to familiarize himself with the materials of the ongoing criminal case.
3. During criminal proceedings, the prosecutor supports the state prosecution, ensuring its legality and validity.
4. The prosecutor has the right, in the manner and on the grounds established by this Code, to refuse to carry out criminal prosecution with the obligatory indication of the reasons for his decision.
5. The powers of the prosecutor provided for by this article are exercised by district and city prosecutors, their deputies, equivalent prosecutors and superior prosecutors.
6. If the head of the investigative body or investigator disagrees with the prosecutor’s demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to apply to the head of a higher investigative body with a demand to eliminate these violations. If the head of a higher investigative body disagrees with the specified requirements of the prosecutor, the prosecutor has the right to appeal to the Chairman of the Investigative Committee of the Russian Federation or the head of the investigative body of the federal executive body (under the federal executive body). If the Chairman of the Investigative Committee of the Russian Federation or the head of the investigative body of the federal executive body (under the federal executive body) disagrees with the prosecutor’s demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to appeal to the Prosecutor General of the Russian Federation, whose decision is final.
Return to the table of contents of the document: Criminal Procedure Code of the Russian Federation in the current edition
Jury session
The trial process with the participation of the prosecutor and jurors has its own characteristics. The rules for conducting the hearing procedure are outlined in Chapter 42 of the Code of Criminal Procedure of the Russian Federation. In a criminal case, the prosecutor enters into the process at the stage of preparation for trial, that is, at the stage of a mandatory preliminary hearing in the case. Such a procedure can be of fundamental importance, because its outcome makes it possible to resolve the issue of the necessity and advisability of the participation of jurors. The opinion of the defendant himself regarding the involvement of a jury in the trial is taken into account. The prosecutor's decision in a criminal case is advisory in nature, since the final decision on the participation of a jury is made by the judge.
The powers of the prosecutor also concern the preparatory part, during which the jury is formed, and the judicial investigation, which starts after the prosecutor issues a decision to initiate a criminal case. The opening statement of the state prosecutor predetermines the procedure for examining the evidence provided by the investigation, and the content of the prosecutor's speech in the debate of the parties includes recommendations for judges and jurors if they are present.
After the verdict has been rendered and announced by the jury, the prosecutor begins the final stage of studying the criminal case. The state prosecutor makes a speech during the debate, gives a legal assessment of the possible consequences of the verdict and how the severity of the crime corresponds to the prescribed punishment for the defendant.
Prosecutor in the Court of Appeal
The verdict does not immediately acquire legal significance for the defendant. The Code of Criminal Procedure of the Russian Federation determines a ten-day period for acquiring the legal force of a court decision. During this period, both parties to the conflict have the right to appeal. If the injured party or defendant exercises their right and tries to appeal the verdict, the criminal case will be returned to the prosecutor, and then sent for consideration to a higher authority.
Some time ago, the Code of Criminal Procedure of the Russian Federation provided for two higher judicial bodies of general jurisdiction that were responsible for verifying sentences that had not entered into legal force - the court of appeal and the court of cassation. In the first case, a comprehensive check of the verdict and decisions of the magistrate was carried out exclusively; in the second, the decisions of other courts were checked. Since the beginning of 2013, this procedure has been changed, which affected not only the procedure for reviewing court decisions that have or have not acquired legal significance.
At the moment, there is a unified procedure for reviewing sentences and other court decisions. Appeal proceedings can be called a regulated procedural activity of the courts, which consider in the prescribed manner complaints against verdicts that have not acquired legal force, including in criminal cases. This also includes determinations and decisions of lower courts. However, in order for the appellate court to consider a complaint, there must be sufficient grounds, for example, the referral of a criminal case by the prosecutor or a complaint from the defense.
In order for the case to be reviewed by the appellate court, within 10 days after the verdict is announced, the prosecutor must file a presentation - a petition. To appeal a court decision that already exists but has not entered into force, it is necessary to draw up an appeal presentation in such a way that its content and form comply with the requirements established by the Code of Criminal Procedure of the Russian Federation. It must be formal and specific, setting out the arguments and supporting it with the necessary materials.
Since January 1, 2013, not only the district court, but also other higher bodies of justice - regional courts, the Supreme Court of the Russian Federation - are recognized as an appellate authority.
Powers of the prosecutor in the judicial stages of criminal proceedings
The powers of the prosecutor in the judicial stages of criminal proceedings are determined by the Code of Criminal Procedure of the Russian Federation. So in accordance with Part 3 of Art. 37 of the Code of Criminal Procedure of the Russian Federation, during criminal proceedings, the prosecutor supports the state prosecution, ensuring its legality and validity. In accordance with Part 4 of Art. 37 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right, in the manner and on the grounds established by the Code of Criminal Procedure of the Russian Federation, to refuse to carry out criminal prosecution with the obligatory indication of the reasons for his decision.
Preliminary hearing In accordance with the norms of criminal procedural legislation, during the preliminary hearing, petitions for the exclusion of evidence, for the return of the criminal case to the prosecutor, for the termination of the criminal case or criminal prosecution may be made and resolved, in connection with which, at this stage of criminal proceedings, a mandatory participation of the prosecutor, since the burden of refuting the defense’s arguments lies with the prosecutor Art. 235 Code of Criminal Procedure of the Russian Federation. In addition, in accordance with Part 7 of Art. 236 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to appeal the decision made to terminate the criminal case and (or) to schedule a court hearing regarding the resolution of the issue of a preventive measure. If the prosecutor considers the court's decision to return the criminal case to the prosecutor, to terminate or suspend the case as illegal and unfounded, then he has the right to bring an appeal or cassation presentation, in which he asks the higher court to cancel such a decision.
Trial
Part 5 of Art. 246 of the Code of Criminal Procedure of the Russian Federation, it is established that the public prosecutor presents evidence and participates in its examination, expresses to the court his opinion on the merits of the charge, as well as on other issues arising during the trial, makes proposals to the court on the application of the criminal law and the sentencing of the defendant. B in accordance with Part 6 of Art. 246 of the Code of Criminal Procedure of the Russian Federation, the prosecutor brings or supports a civil claim brought in a criminal case, if this is required by the protection of the rights of citizens, public or state interests. By virtue of Part 8 of Art. 246 of the Code of Criminal Procedure of the Russian Federation, the state prosecutor, before the court leaves the deliberation room to decide the verdict, can also change the charge towards mitigation by:
- exclusion from the legal qualification of the act of signs of a crime that aggravate the punishment;
- exclusion from the charge of a reference to any norm of the Criminal Code of the Russian Federation, if the defendant’s act is provided for by another norm of the Criminal Code of the Russian Federation, the violation of which he was charged with in the indictment or indictment;
- reclassification of the act in accordance with the norm of the Criminal Code of the Russian Federation, providing for a more lenient punishment.
In accordance with Part 1 of Art. 314 of the Code of Criminal Procedure of the Russian Federation, the prosecutor gives consent to conduct a court hearing in a special manner, subject to the conditions established by the Code of Criminal Procedure of the Russian Federation. In addition, by virtue of Part 4 of Art. 314 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to object to holding a court hearing in a special manner, in this case the criminal case is considered in a general manner. In accordance with Part 4 of Art. 354 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right of appeal and cassation appeal of a court decision. Also, by virtue of Part 2 of Art. 402 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to petition for a review of a sentence, ruling, or court order that has entered into legal force.
