Types and procedure for attracting and conducting criminal prosecution

What is criminal prosecution

The fact of criminal prosecution is a procedural activity that is initiated by the prosecution in order to establish the identity of the criminal accused of committing a crime. This is one of the key concepts in criminal procedural law; it is an integral part of the entire criminal process.

For the first time, the interpretation of this term was given by the domestic science of criminal law in the Code of Criminal Procedure of the Russian Federation in 2001. Criminal prosecution can only take place at the stage of pre-trial proceedings or preliminary investigation and takes the form of an inquiry.

According to Part 1 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, it can be carried out in the following forms: public, private-public or private. We will talk about their features below in the relevant sections.

How to initiate a private prosecution case

Consideration of private criminal cases falls within the powers of the magistrate. The victim or his legal representative personally applies to the court with a statement accusing a specific person of committing a criminal act and applying corrective measures to him. The composition of the unlawful act is determined by the victim himself.

The application is drawn up according to a specific plan and contains information:

1. Name and address of the court site.
2. Brief description of the criminal event (place, time, circumstances).
3. Please open a case.
4. Information about the victim (last name, first name, patronymic in full, passport details).
5. Known details of the accused person (full name required).
6. List of witnesses (full name, addresses, contact numbers).
7. Date, signature.

The application is accompanied by its copies, the number of which corresponds to the number of persons held accountable.

When considering a private prosecution case, the prosecutor defends the rights of the victim. The entry of a public prosecutor into the case does not deprive the parties of the opportunity to reconcile

The prosecutor, if necessary, draws the attention of the magistrate and the victim to the facts when reconciliation is concluded under pressure from the defense.

If the victim does not agree to reconcile, a court hearing is scheduled to consider the case. The magistrate, within a period not exceeding 7 days from the date of registration of the application, calls the citizen in respect of whom the application was filed to familiarize himself with the materials. The accused is given a copy of the statement, his rights are explained, and he is asked to invite defense witnesses to the court.

The fact that the accusation is brought forward and supported not by law enforcement officials, but by the victim himself, does not mean that this activity is not ensured by government measures. The state guarantees unimpeded access for the victim to the consideration of the criminal case.

Consideration of private prosecution materials is similar to the resolution of a dispute between the plaintiff and defendant in a civil trial. However, in criminal law, the actual punishment is given to the culprit.

If aggravating features are discovered in the commission of an unlawful act, the case will become public. For example, if the harm to the victim’s health was caused by racial hostility (Nazism), then a new charge will be supported by a member of the prosecutor’s office.

The procedure established by part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation is used quite rarely in modern legal practice.

Types of criminal prosecution

The distinction between the main types of criminal prosecution ensures an optimal balance and consistency of public and private interests, so it is quite clearly visible if you compare their features.

In Part 1 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, differentiation of various types is carried out based on the nature and severity of the offense committed . The criteria specified in this code are not the only ones. However, they are not the only ones used.

One of the key ones is the interest of the injured party in criminal prosecution. For example, victims often do not want to disclose details of crimes that affect the intimate side of their lives.

Private

Cases of this kind are always initiated at the request of the injured party or its legal representative. There are 2 exceptions to this rule:

• the offense was committed against a dependent or helpless citizen (disabled person, mentally ill person, etc.);
• The culprit could not be identified.

close people (husband - wife, parents - child) become parties They allow them to satisfy their sense of personal resentment, which arises when some offenses occur against relatives.

If we talk about specific articles of the Criminal Code of the Russian Federation, then cases of this kind are often initiated under the following articles:

• Part 1 Art. 115 of the Criminal Code of the Russian Federation (causing minor damage to the health of a citizen);
• Part 1 Art. 116 (beatings);
• Part 1 Art. 118 (slander), etc.

Important! In this case, a case can be initiated only against an individual, but not against an entire organization.

Termination of the criminal case and criminal prosecution in this case may occur upon reconciliation of the parties. It is possible right up to the moment when the court goes into the deliberation room to make a final verdict.

Features of this type include:

• absence of suspicion stage;
• the presence of exclusively accusatory activities;
• the filing and maintenance of charges are carried out only at the request of the magistrate;
• the initiation of a criminal case comes down to verifying the correctness of the completed statement of an offense, that is, to establishing the reason for this action.

It is the victims who are obliged to both collect evidence of the accused’s guilt and support the prosecution. At any time they can demand the termination of criminal proceedings and prosecution. For example, one of the grounds may be the passive refusal of the victim (his failure to appear at the court hearing).

Can the prosecutor terminate the criminal prosecution in this case? Of course, he has this right in the absence of qualifying elements of the crime.

Private-public

According to Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, this type of criminal prosecution is provided for the following types of offenses:

• for those related to sexual integrity and sexual freedom of citizens (part 1 of article 131 and part 1 of article 132 of the Criminal Code of the Russian Federation);
• against the constitutional rights and freedoms of people (Articles 159-159.6, 160, 165 of the Criminal Code of the Russian Federation).

The private nature of these types of cases is manifested in the fact that they are initiated at the request of the victim or his legal representative. All subsequent proceedings are carried out exclusively under the public procedure of criminal prosecution. Therefore, this type is called private-public.

The basis for terminating the criminal case and prosecution here can no longer be reconciliation of the parties. For example, in the case of rape, even if the victim and the accused decide to enter into a legal marriage, the criminal case against the latter itself will not be dismissed .

Public

The public procedure of criminal prosecution includes all offenses that cannot be tried in private or private-public cases.
Usually this includes all offenses that occurred with aggravating circumstances. Let's give a simple example.

Let’s say that if the beatings took place without any additional factors, the case will be carried out in private, and if they took place due to racial or religious intolerance, then the persecution will be carried out in public.

Conducting such cases is the responsibility of the prosecutor, investigator and relevant authorities. They are the ones who can begin a criminal investigation, regardless of whether or not the victim himself filed an application to initiate the case. Part 3 art. 21 of the Code of Criminal Procedure of the Russian Federation establishes that even the latter’s refusal cannot prevent the start of the investigation.

The prosecutor, investigators and other bodies involved in the investigation are vested with the broadest powers. Any citizens or organizations are obliged to cooperate with them.

Failure to comply with their requirements entails administrative liability under Art. 17.7 of the Code of Administrative Offenses of the Russian Federation , and obstruction of their work is criminal, according to Part 2 of Art. 294 of the Criminal Code of the Russian Federation .

All procedural actions are mandatory for the parties to the case and third parties, that is, they are required by law to appear for interrogations, give testimony, etc. This may also be optional.

Reference. Rehabilitative grounds for termination of criminal prosecution can only be those established by Art. 24, 25, 27-28.1 Code of Criminal Procedure of the Russian Federation.

Comments on the article

Public accusation in criminal proceedings is one of the ways of criminal prosecution and establishing the truth. The procedure for initiating proceedings on public charges consists of several stages, each of which is clearly regulated by the Code of Criminal Procedure of the Russian Federation.

There is a clearly established model for conducting criminal proceedings:

1. Initiation of a case.
2. Checking the legality and validity of the decision to initiate proceedings by the prosecutor.
3. Notifying the parties of the decision made.
4. Initiation of criminal prosecution and collection of evidence against the suspect.

At the stage of initiating proceedings, the investigator must verify all information provided by the applicant or obtained in any other way, as well as conduct a preliminary investigation. Based on indications of involvement of a particular subject, criminal proceedings are initiated against him. In the resolution, the investigator is obliged to indicate the qualifications of the crime, that is, to describe the alleged article under which the suspect will be held accountable.

In no case should a crime be classified “with reserve”, that is, the involvement of a particular subject in the offense and the severity of the crime should be overstated. Overqualification can lead to unjustified use of coercive measures and can lead to an incorrect determination of subject jurisdiction.

For example, if a murder of a person was committed, it is impossible to indicate in the resolution that it was committed with particular cruelty until evidence of this is found. For murder without a qualifying element and in the presence of aggravating circumstances, the Criminal Code of the Russian Federation imposes completely different sanctions.

The second stage of conducting a criminal investigation is the prosecutor's verification of the collected case materials. This official has the authority to cancel or reopen already closed cases if there are grounds. Limiting the period for cancellation or renewal of a decision by the prosecutor ensures the stability of the preliminary investigation and legal proceedings.

During the verification process, the prosecutor is obliged to check the jurisdiction of the received case.

According to the Code of Criminal Procedure, there are three types of jurisdiction:

• subject;
• territorial;
• personal.

Subject jurisdiction consists in determining the department that initiates proceedings depending on the qualification of the crime. For example, cases related to drugs are handled by the State Drug Control Service, international espionage by the FSB, etc.

Territorial jurisdiction determines which body can initiate cases in the territory designated as a crime scene. If the location of, for example, a murder has not been established, then a case is opened at the place where the corpse was found. Sometimes there are situations where several violations of the law have been committed. In such a case, the case is initiated at the place where most of the atrocities or the most serious of the totality were committed. Territorial affiliation is not absolute, so it can be adjusted depending on the progress of the investigation.

Personal jurisdiction is determined when the interests of special subjects - judges, lawyers and deputies - are affected. Regarding them, the case is initiated according to a special model.

On the day the prosecutor makes a decision, the victims are notified, and the suspect is charged. It is at this moment that the procedural status of the subject of production changes. He moves from the “suspect” to the “accused” category.

Objects and subjects

The subjects here are officials and government agencies that participate in the persecution. First of all, this is the prosecution side. Articles 37-45 of the Code of Criminal Procedure of the Russian Federation refer to the subjects of the prosecutor, investigator, victim and his representatives, private prosecutor, civil plaintiff, etc.

The accused becomes the target, since it is against him that the prosecution is carried out. Its specific type is chosen based on the severity and type of offense committed .

Who has the right to carry out this activity

Speaking about the types and subjects of criminal prosecution, it should be noted that procedural legislation determines the exact circle of persons who have the right to carry out this activity. In the Russian Federation these are:

• investigative authorities;
• bodies of inquiry;
• prosecutor.

As for the bodies conducting inquiry and investigation, the list of their competencies includes such functions as ensuring prosecution, such as collecting incriminating evidence, as well as applying coercive measures against a suspect or obviously guilty person, which subsequently makes it possible to apply a proportionate punishment against him.

Speaking about public prosecutors, represented by prosecutors, it is worth highlighting that their main task is to accurately substantiate the guilt of a person during the trial on the merits of the case

It is important to note that the court’s conviction can occur on the basis of not only incriminating, but also exculpatory evidence.

Procedure and rules of attraction

If we talk about private or private-public types of criminal prosecution, then either the victim himself or his legal representatives (guardians or parents) can initiate the procedure for starting it.
They are required to write a statement and indicate in it the facts and reasons for starting the investigation. Prosecution of a public nature is initiated by the prosecutor, investigator or law enforcement agencies . The prosecutor can also draw up a resolution to terminate the criminal prosecution according to the established template.

It should be noted that there is a separate article in the Criminal Code of the Russian Federation for illegal criminal prosecution - Article 299. It provides for a preventive measure for this crime in the form of imprisonment for up to 10 years .

Timing of persecution

They depend on the type and degree of the offense committed. Art. 78 of the Criminal Code of the Russian Federation establishes the statute of limitations for criminal prosecution as follows:

• for crimes of minor gravity - 2 years ;
• for crimes of average gravity - 6 years ;
• for serious crimes - 10 years ;
• for especially serious crimes - 15 years .

The period begins to count from the moment when the crime itself took place until the court made its final decision on the case. If a citizen commits a new crime, the countdown begins anew.

Stages and participants of public persecution

Conducting public affairs includes two stages:

• pre-trial investigation, consisting of the initiation of a criminal case and preliminary investigation;
• judicial proceedings.

The results of the preliminary investigation, reflected in the indictment document, provide the prosecutor with information about all the details of the crime and evidence of the involvement of the person involved in the committed act.

The main subjects of prosecution are: the state prosecutor (prosecutor), the defendant and his lawyer, and the judge. The law grants the right to participate in court proceedings to all interested parties (victims of crime and their representatives).

Victims are also entitled to:

1. to the accused.
2. Provide additional evidence of the defendant’s involvement in the unlawful episode.
3. Challenge a judge, prosecutor or jurors.
4. Submit any petition.
5. Take part in court debates.

All participants in the process can appeal the judge's verdict (decision). The law allows a period of ten days for appeal.

For each stage of prosecution, the legislator stipulates its own deadlines. The pre-trial investigation should not take more than two months. At the end of this period, the collected materials are transferred to the prosecutor, or the citizen is found not guilty of committing the illegal episode accused of him. The prosecutor has a control period of five days to return the case for revision or to send it for consideration by the court.

If the accused is found to be involved in a criminal episode, punishment will be imposed and executed. The pursuit procedure ends. The total time of persecution directly depends on the duration of the process.

What is the difference between public general policy?

The most common method of prosecution and consideration of a criminal case is the public method. The trial is open to all categories of participants.

The distinctive features of public policy are as follows:

1. The investigation and prosecution in court is carried out by officials (inquirer, investigator, prosecutor).
2. The charge is brought on behalf of the state.
3. Legal entities (organizations) and individuals (citizens) are obliged to comply with the requirements of law enforcement agencies (respond to requests, give testimony). The Criminal Code of the Russian Federation provides for liability for refusal to testify.
4. There is no need for a personal statement from the victim to begin an investigation.
5. Impossibility of terminating criminal proceedings after reconciliation of the parties.

The reason for starting an investigation into an episode of a crime, along with the victim’s appeal, are other messages about the fact of the act (for example, a report from an official or even a confession).

The statement of a criminal fact, which is the reason for starting a criminal case, must contain specific information about the preparation or commission of a crime. At the same time, the public policy of prosecution does not require that the applicant request that the perpetrator be brought to criminal responsibility.

If the facts of the commission of an unlawful act specified in the report are confirmed during the preliminary check, the investigator (inquiry officer) decides to initiate a criminal case.

The main differences between the concepts

The difference between criminal prosecution and criminal case must be understood, because these are different concepts. They have some things in common that cause people to confuse the terms. However, the difference is impressive and relates directly to the progress of the matter.

Important! Termination of a criminal case implies the complete closure of the criminal investigation department. This means that the investigation is not ongoing and the materials are not submitted to the court to continue the process.

This happens if there are grounds for which the classification is used: rehabilitating and non-rehabilitating. In the first case, a person is no longer suspected or accused because his innocence has been proven. In the second case, it is recognized that the citizen committed an offense, but he is exempt from the consequences of criminal liability.

The end of criminal prosecution is the cessation of the part of the proceedings relating to a particular citizen. However, this does not mean at all that the UD will also be closed. Let’s say that there may be situations where there are several criminals, and only one of them was cleared of charges, or the death of the suspect or accused occurred. As a result, they no longer have the right to persecute a specific citizen, but the criminal investigation can continue.

If the criminal case is terminated, then the prosecution ends. In this case, legal proceedings regarding all participants in the offense end. Naturally, this happens only for legislative reasons. This is where the above concepts differ.

We can come to the conclusion that they have the right to terminate a criminal case and prosecution only if there are grounds. Moreover, these terms are related to each other and have similarities, but they should be distinguished according to the criteria described above.

What is the article of the Code of Criminal Procedure about?

Public accusations in criminal proceedings usually involve crimes against health and life, sexual integrity, property and public safety. Due to the fact that the state itself carries out criminal prosecution in such cases, termination of proceedings in connection with the reconciliation of the parties is possible only with the permission of the court or the head of the investigative body.

It is important to note that reconciliation and closure of proceedings is permissible in cases of minor and moderate gravity. Closing proceedings on grave and especially grave crimes described in Article 27 of the Criminal Code of the Russian Federation is impossible

This circumstance is due to the fact that cases of public prosecution harm not only the interests of individual citizens, but also the public as a whole.

In this regard, when a public prosecution case is initiated, a copy of the resolution is sent not only to the direct victims of the crime, but also to the prosecutor, as a representative of the interests of the state. It is the prosecutor who acts as the prosecution in public cases and controls the legality and objectivity of the preliminary investigation and inquiry at all stages.

It will be interesting to know that regarding individuals there is a special procedure for initiating cases of public prosecution. A special procedure for conducting proceedings is applied if the crime affects State Duma deputies, the President, lawyers, prosecutors, investigators, investigators, ordinary judges or judges of the Constitutional Court.

Basic provisions

Criminal cases of public prosecution are initiated if there are clear grounds for this. If there is a reason to initiate proceedings, the competent authority issues a decision.

Only persons with special powers and knowledge can conduct proceedings in criminal cases of public prosecution, in particular:

• inquiry body;
• interrogator;
• head of the investigative body;
• investigator.

The reason for initiating proceedings, according to the Code of Criminal Procedure, is a statement from the victim, a confession, the capture of a criminal red-handed, the presence of irrefutable evidence, or information received by law enforcement officials about an impending or already committed crime during investigative measures in other cases.

The initiation of a criminal case is accompanied by filling out a statistical card, as well as assigning a serial number.

The decision to initiate a criminal case must indicate:

• date, time and place of the decision to initiate proceedings;
• the name of the official who made the decision (by whom it was made);
• reason and reasons;
• clause, part and article of the Criminal Code of the Russian Federation on the basis of which the case is initiated.

The prosecutor has the right to terminate a criminal case of public prosecution if there are no sufficient grounds to bring suspicion and charges against a specific person. In the relevant resolution, the prosecutor indicates a specific person whose actions do not contain signs of a crime. The prosecutor's decision not to initiate proceedings can be challenged in court.

If, after checking by the prosecutor, the materials are sent to the investigative body, then a corresponding note is made on the decision. In case of initiation of proceedings, refusal, as well as when sending materials to another regulatory authority, interested parties are notified of the current circumstance by letter.

Types of punishments and terms

From the moment the criminal act is determined and until the decision is made - to initiate criminal proceedings or refuse, no more than 10 days should pass. Sometimes this period is extended to 30 days. During this time, the investigator will check the accuracy of the facts stated in the statement, and also determine the signs of the crime and the range of possible persons involved. Having collected the required amount of case materials, the investigator submits them for verification to the prosecutor, who must make an appropriate decision within 24 hours.

If a case is initiated, the investigator initiates criminal prosecution and begins collecting evidence of the guilt of a particular citizen. Investigative activities are carried out, as a rule, for 2 months, but sometimes, by court decision, the investigation period can be extended to 6, 12 and 18 months. After 18 months, the case materials are sent to court.

As for the punishment in cases of public prosecution, it differs depending on the article charged to the offender. As a rule, cases of public prosecution are characterized by a term of imprisonment of at least 3 years. The main sanction may be supplemented by a fine, compensation for moral and other damage, and may also be accompanied by forced treatment or community service.

Public

Speaking about the public procedure for prosecution, first of all, it is worth noting that most criminal cases are conducted precisely in this order, which is often called general. Legal practitioners often note that this type of prosecution has a great advantage, expressed in its complete independence from the positions presented by the parties to the ongoing process.

The essence of public prosecution is that it is carried out in the event of discovery of an act with signs of a crime

It is important to note another feature of general prosecution - in all cases it is carried out on behalf of the state, as stated in Art. 21 Code of Criminal Procedure of the Russian Federation

It is important to understand that the legal representative of the injured party or she personally can take part in public prosecution, but in this situation these persons do not have the right to make independent decisions.

Many experts in the field of criminal law often note that it is the public procedure for prosecution that exactly corresponds to the main goals of legal proceedings.