Prosecutor as a participant in criminal proceedings

Powers of the prosecutor as a participant in judicial proceedings

Note 1
A prosecutor is an official authorized to carry out, on behalf of the state, within the limits of his competence, criminal prosecution in the process of criminal proceedings, as well as supervision over the procedural activities of preliminary investigation bodies and inquiry bodies (Article 37 of the Code of Criminal Procedure).

During pre-trial proceedings, the prosecutor is authorized to:

• monitor compliance with the requirements of federal legislation when registering, receiving and considering reports of offenses;
• Based on the facts of violations of the criminal law identified by the prosecutor, make a decision on sending materials to the inquiry body or investigative body to resolve the issue of criminal prosecution;
• give written instructions to the investigator on the conduct of procedural actions, the direction of the investigation, consent to initiate a petition for the production of a procedural action before the court, allowed on the basis of the relevant court decision;
• demand from investigative and inquiry bodies the elimination of violations of federal laws committed during the preliminary investigation or inquiry;
• cancel unfounded or illegal decisions of the investigator and lower-ranking prosecutor;
• allow challenges and self-recusations submitted to the investigator;
• remove from further investigation the investigator who committed the violation;
• withdraw any criminal case from the investigating agency and transfer it to the investigator with justification for such transfer;
• transfer cases from one preliminary investigation body to another, withdraw the case from the federal executive body, transfer it to the Investigative Committee under the Prosecutor's Office of the Russian Federation with justification for this transfer;
• approve a decision to terminate proceedings, approve an indictment or indictment in a criminal case;
• return the criminal case to the investigator, interrogating officer with accompanying written instructions on changing the qualifications of the actions of the accused, on conducting an additional investigation, changing the scope of the charge, indictment or indictment, and eliminating all identified deficiencies.

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During the trial, the prosecutor supports the state prosecution and enjoys the same rights as other participants in the trial (Article 15). The public prosecutor actively participates in the study of evidence, provides the court with his own opinion on the essence of the charge and other issues that arise during the trial, on the application of penalties and criminal legislation in relation to the defendant. The prosecutor has the right, on the grounds and in the manner prescribed by law, to refuse criminal prosecution during pre-trial proceedings, and in court to terminate the case.

Article 37 of the Code of Criminal Procedure of the Russian Federation. Prosecutor (current edition)

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Conclusion on the draft Federal Law N 401900-4 “On Amendments to the Criminal Procedure Code of the Russian Federation and the Federal Law “On the Prosecutor's Office of the Russian Federation”, introduced by deputies of the State Duma. State Duma Committee on Constitutional Legislation and State Building. By order of the Council of the State Duma of March 6, 2007 (Minutes No. 225, paragraph 126) // Law (online magazine of the Primorye Lawyers Association): https://www.law.vl.ru/articles/showart.php?id =15065.

About the Investigative Committee under the Russian Prosecutor's Office. Analytical report of the Public Verdict Foundation // https://control.hro.org/okno/pr/2007/06/28.php.

As a result of these changes, the structure of the Russian criminal process is changing significantly. I would like to hope that our preliminary investigation will retreat one more step from the morally outdated inquisitorial model of the process due to the fact that now, until the indictment is approved, the prosecutor has not yet become a criminal prosecutor in the full sense of the word and is therefore, to some extent, capable of acting as an arbiter between the prosecution and defense, taking measures to eliminate violations committed by investigators. However, this division of functions is not yet entirely consistent and half-hearted. Nevertheless, the prosecutor's office, which has historically developed specifically as a criminal prosecution body, will always be much closer to the interests of the investigation than the role of an impartial arbiter in a dispute between the parties. The procedural judicial function, characteristic of the adversarial process, is replaced here by an essentially borrowed, state-legal function of prosecutorial supervision, which remains external to the criminal process. The issue can finally be resolved in an adversarial manner only when an independent and impartial judicial body—the investigating judge—is placed between the criminal prosecutor and the defense during the preliminary investigation. In this sense, the prosecutor and the investigative body in the future should change places: the prosecutor should return to the more natural role for him of the head of the criminal prosecution, having in his full procedural subordination the bodies of inquiry, and the investigative body should carry out - mainly at the request of the prosecution and defense parties — investigative actions to legalize materials collected by the parties as judicial evidence, as well as exercise judicial control over measures of procedural coercion and compliance by criminal prosecution authorities with the rights of citizens. It is according to this or a similar model that the preliminary investigation is organized in the procedural systems of Spain, Germany, England, the USA, France, etc.

3. The supervisory function of the prosecutor is specified in the following powers:

1) verify compliance with the requirements of federal law when receiving, registering and resolving reports of crimes (clause 1, part 2, article 37);

2) cancel the decision to initiate a criminal case if the prosecutor recognizes the decision to initiate a criminal case as illegal or unfounded (Part 4 of Article 146). It seems that the prosecutor, when exercising this power, should have the opportunity to request the materials of the pre-investigation check, study them and only after that make an informed and motivated decision. One decision to initiate a criminal case contains only brief information about the event in respect of which a criminal case is being initiated, and does not include a description of evidence and other information indicating the presence (or absence) of grounds for initiating a case. See also comment. to Art. 146;

3) give consent to the investigator to initiate a criminal case, which in other cases would be classified as a private prosecution, i.e. if a crime is committed against a person who, due to a dependent or helpless state or for other reasons, cannot defend his rights and legitimate interests (part 4 of article 20, part 4 of article 147, part 3 of article 318);

4) demand from the bodies of inquiry and investigative bodies the elimination of violations of federal legislation committed during the inquiry or preliminary investigation (clause 3, part 2, article 37). It should be noted that this power of the prosecutor is supported in the Code of Criminal Procedure by the norm that the demands, instructions and requests of the prosecutor presented within the powers established by this Code are mandatory for execution by all institutions, enterprises, organizations, officials and citizens (Part 4 of Art. 21). However, the obligatory nature of the prosecutor’s motivated demands only extends to familiarization for the purpose of verification with the materials of the criminal case held by the investigator, the head of the investigation department (Part 2.1 of the commented article). In addition, in paragraph 1.2 of the Order of the Prosecutor General of the Russian Federation dated September 10, 2007 N 140 “On the organization of prosecutorial supervision over the implementation of laws when receiving, registering and resolving reports of crimes in the bodies of inquiry and preliminary investigation”, it is prescribed to the prosecutor when exercising supervision, guided by Art. . 22 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”, summon officials of the bodies of inquiry and preliminary investigation, as well as citizens for explanations regarding violations of laws.

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Official website of the Prosecutor General's Office of Russia: https://genproc.gov.ru/ru/documents/orders/print.shtml?item_id=66.

However, it must be borne in mind that the requirement of the prosecutor (with the exception of the Prosecutor General of the Russian Federation - Part 6 of Article 37) to eliminate violations of federal legislation itself is not strictly obligatory for the investigator, since according to Part 3 of Art. 38, if an investigator disagrees with the prosecutor’s demands to eliminate violations of the law, he may submit his written objections to the head of the investigation. The head of the investigation department considers these demands of the prosecutor, as well as the written objections of the investigator and gives the latter written instructions on the fulfillment of these requirements or informs the prosecutor of disagreement with his demands (Part 4 of Article 39);

5) cancel illegal or unfounded decisions of a lower-ranking prosecutor, as well as illegal or unfounded decisions of an inquiry officer in the manner established by this Code (clause 6, part 2, article 37). As for illegal or unfounded decisions of the investigator, only the head of the investigator has the right to cancel them (clause 2, part 1, article 39);

6) consider the investigator’s information about disagreement with the demands of the (lower) prosecutor and make a decision on it (clause 7, part 2, article 37);

7) give consent to the investigator to initiate a petition before the court to select, cancel or change a preventive measure or to perform another procedural action that is allowed on the basis of a court decision (clause 5, part 2, article 37);

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 (clause 8, part 2, article 37). It should be noted that in Part 6 of Art. 108 retains the provision according to which the prosecutor or, on his instructions, the person who filed the petition substantiates it at the court hearing. In our opinion, this norm needs a restrictive interpretation if the person who filed the petition is an investigator. In accordance with Federal Law No. 87-FZ of June 5, 2007, the prosecutor lost the authority to give the investigator consent to file a petition with the court to select detention as a preventive measure. Accordingly, the prosecutor does not first study the petition and the materials attached to it, which means it is illogical to impose on him the obligation to substantiate this petition in court. Moreover, the giving of such an order by the prosecutor to the investigator contradicts the meaning of the said Law on the separation of prosecutorial and investigative functions. By justifying during pre-trial preparation the expediency of applying a preventive measure to the accused, the prosecutor prematurely begins to take an active part in performing the function of criminal prosecution - to the detriment of the function of supervision. In this regard, it seems that not only the prosecutor, but also the investigator must necessarily participate in the court hearing on these issues, and it is the investigator who must substantiate the petition, while the prosecutor is called upon to exercise supervision over the legality of the actions and petitions of the investigator (clause 3, part 2; Part 6 of Article 37), and, if necessary, respond with a submission to the court decision (Clause 27 of Article 5);

9) determine the jurisdiction of criminal cases in cases provided for in Part 3 of Art. 146; part 8 art. 151. Before the adoption of Federal Law No. 87-FZ of June 5, 2007, the transfer of a case under jurisdiction from one investigative body to another was always carried out by order of the prosecutor. The said Law provided that in a number of cases the case is transferred through the head of the investigation team (Parts 3, 5, Article 152; Clause 3, Article 149; Article 155; Part 3, Article 157; Part 1.1, Article 319 ). Taking into account the interpretation of these rules in conjunction with the powers of the investigative bodies (Articles 37 - 41), it should be recognized that a criminal case is transferred according to jurisdiction by the investigator through the head of the investigation (who then has the right to forward it to the prosecutor), and by the interrogating officer or the inquiry body - through the prosecutor . Disputes about jurisdiction are resolved by the prosecutor (Part 8 of Article 151);

10) receive notifications from the preliminary investigation authorities:

— to initiate a criminal case (part 4 of article 146);

- refusal to initiate a criminal case (part 4 of article 148);

- about the detention of the suspect within 12 hours from the moment of detention (Part 3 of Article 92);

- on the release of the suspect, when the judge’s decision to apply a preventive measure to the suspect in the form of detention or extension of the period of detention is not received within 48 hours from the moment of detention (Part 3 of Article 94);

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Such notification is sent by the head of the place where the suspect is being held.

- on the sending by the investigator of a notification of suspicion of a person of committing a crime, and a copy of this notification is sent to the prosecutor (Part 3 of Article 223.1);

- on the urgent implementation of a number of investigative actions (inspection of a home, search and seizure of a home, personal search, as well as seizure of property specified in Part 1 of Article 104.1 of the Criminal Code), limiting the constitutional rights of citizens (Part 5 of Article 165) , as well as the abolition of the seizure of correspondence (Part 6 of Article 185);

— on suspension of the preliminary investigation (Part 2 of Article 208);

— on the resumption of the preliminary investigation (Part 3 of Article 211);

— on termination of the criminal case (Part 1 of Article 213);

11) allow challenges filed by the participants in the process to the investigator, as well as his self-challenges (clause 9, part 2, article 37);

12) remove the investigator from further investigation if he has violated the requirements of this Code (clause 10, part 2, article 37);

13) 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) in accordance with the rules of jurisdiction established by Art. 151 (clause 12, part 2, article 37);

14) give written instructions on the transfer of criminal cases, usually under investigation by the investigative bodies (clause 1, part 3, article 150), for preliminary investigation (part 4, article 150);

15) give written instructions to the bodies of inquiry on the conduct of inquiries in criminal cases about other (in addition to those specified in clause 1, part 3, article 150) crimes of minor and medium gravity (clause 2, part 3, article 150). This power, in our opinion, should be interpreted restrictively, because the prosecutor is not vested with the right to give instructions to the investigator to transfer the case to the interrogating officer. The prosecutor's instructions to the investigator are provided for by law only for three cases: a) when he demands that the inquiry bodies and investigative bodies eliminate violations of federal legislation committed during the inquiry or preliminary investigation (clause 3, part 2, article 37); b) when the prosecutor returns the criminal case to the investigator for additional investigation in order to eliminate the identified shortcomings of the investigation (clause 2, part 1, article 221); c) when the prosecutor resolves a dispute about jurisdiction (Part 8 of Article 151). There is no talk here of violations of the law or the elimination of identified deficiencies; There is also no dispute about jurisdiction in this case, since what is meant is only the discretionary power of the prosecutor to determine the form of the preliminary investigation. Thus, the prosecutor can practically exercise his right to redistribute the investigation in favor of the investigative bodies in criminal cases of “other crimes of minor and medium gravity” (in the absence of disputes about jurisdiction), unless the case is not yet under investigation by the investigator, namely: a ) when the prosecutor makes a reasoned decision to send materials to the inquiry body to resolve the issue of criminal prosecution based on violations of criminal law identified by the prosecutor (clause 2, part 2, article 37); b) upon completion of urgent investigative actions by the body of inquiry in cases in which the conduct of a preliminary investigation in another case would be mandatory (Article 157). However, this is also impossible when the inquiry must be carried out by investigators of the Investigative Committee at the Prosecutor's Office of the Russian Federation for criminal cases of crimes provided for in the entire Part 3 of Art. 150, committed by the persons specified in subparagraph. “b” and “c” of paragraph 1, part 2, art. 151 (clause 7, part 3, article 151);

16) withdraw any criminal case from the preliminary investigation body of the federal executive body (under the federal executive body) and transfer it to the investigator of the Investigative Committee at the Prosecutor's Office of the Russian Federation with the obligatory indication of the grounds for such transfer (clause 12, part 2, article 37). It seems that, taking into account the redistribution of powers to manage the preliminary investigation in favor of the heads of investigative units, the grounds for such a transfer can now only be violations that fall under the scope of prosecutorial supervision (the subject of which is the legality, but not the expediency of the actions of the investigator) over compliance with the law: gross violations by the investigator of the authority preliminary investigation by the federal executive body of legal norms; the investigator’s refusal to comply with the prosecutor’s demands to eliminate violations of the law committed during the preliminary investigation, etc. It may seem that this power to a certain extent conflicts with another method of prosecutorial response provided for in Part 6 of the commented article, when if the head of the investigation department or the investigator disagrees with the prosecutor’s demands to eliminate violations of federal legislation committed during the preliminary investigation, the prosecutor has the right to appeal a requirement to eliminate these violations to the heads of higher-level investigation agencies, and in case of their refusal - to the Prosecutor General of the Russian Federation, whose decision is final. However, it is noteworthy that Part 6 of this article refers specifically to the right of the prosecutor to make demands to eliminate violations of the law at the instance. In our opinion, this means that the prosecutor, depending on the specific situation, can choose any method of responding to violations of law provided to him by law, such as: appealing the actions of the investigator to senior management, or not approving the indictment and instructing the investigator to conduct an additional investigation with taking into account the demands of the prosecutor to comply with the law, or, finally, withdraw the criminal case from the preliminary investigation body of the federal executive body (under the federal executive body) and transfer it to the investigator of the Investigative Committee at the Prosecutor's Office of the Russian Federation;

17) having established that the investigator violated the requirements of Part 5 of Art. 109 of the Code, and the deadline for keeping the accused in custody has expired, cancel this preventive measure (Part 2 of Article 221);

18) give the investigator consent to petition the court to transfer the person in custody to a psychiatric hospital (Part 1 of Article 435);

19) recognize as inadmissible evidence obtained in violation of the requirements of the Code of Criminal Procedure and federal laws (parts 2, 3 of Article 88). See paragraph 2 of the comment. to Art. 88;

20) make a decision on sending the criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court (clause 3, part 1, article 221);

21) accept the provisions provided for in Ch. 18 of the Code of Criminal Procedure measures for the rehabilitation of a person in cases of termination of a criminal case on the grounds provided for in paragraphs 1 and 2 of Part 1 of Art. 24 and paragraph 1, part 1, art. 27 (part 2 of article 212);

22) make supervisory submissions on the review of a sentence, ruling, or court decision that has entered into legal force (Article 402);

23) initiate proceedings due to new or newly discovered circumstances (Article 415);

24) consider complaints against the actions of the inquiry officer and investigator (Article 124).

4. In carrying out criminal prosecution, the prosecutor retained the following powers:

1) 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 (clause 2, part 2, article 37);

2) recognizing the investigator’s refusal to initiate a criminal case as illegal or unfounded, issue a reasoned resolution to send the relevant materials to the head of the investigation department to resolve the issue of canceling the decision to refuse to initiate a criminal case (Part 6 of Article 148);

3) recognizing the decision of the body of inquiry, the interrogator on the refusal to initiate a criminal case as illegal or unfounded, cancel it and send the corresponding resolution to the head of the body of inquiry with his instructions (Part 6 of Article 148);

4) give the investigator written instructions on the direction of the investigation and the conduct of procedural actions. At the same time, the prosecutor’s instructions are now given not to the body of inquiry, but directly to the interrogating officer. Noteworthy is the fact that, unlike the previous version of this article, the powers of the prosecutor in the Code of Criminal Procedure no longer include the right to give instructions to the investigative bodies to conduct operational investigative activities (clause 4, part 2, article 37). At the same time, part 3 of Art. 7 of the Federal Law “On Operational-Investigative Activities” retains the rule that the prosecutor can give written instructions to the inquiry body to carry out operational-investigative activities in criminal cases pending before it. We believe that priority belongs to the regulation contained in the Code of Criminal Procedure of the Russian Federation, since it no longer provides for the prosecutor to accept criminal cases for his proceedings.

The prosecutor also has the right to give written instructions on the conduct of an inquiry in criminal cases about other crimes of minor and medium gravity in addition to those that are classified by law as the jurisdiction of the inquiry, clause 1, part 3, art. 150 (clause 2, part 3, article 150);

5) agree to not notify the relatives of the suspect about his detention if it is necessary to keep the fact of detention secret in the interests of the preliminary investigation (Part 4 of Article 96). It should be said that this authority sounds a certain dissonance from the point of view of the idea of ​​​​separation of the functions of investigation (investigation) and prosecutorial supervision. Supervision, the subject of which is the prosecutor before the confirmation of the indictment, by definition should strive to be as impartial as possible, therefore it should not be guided by the interests of the preliminary investigation, i.e. in this context - the interests of the party to the criminal prosecution. This power is more appropriate when conducting an investigation in the form of an inquiry;

6) withdraw any criminal case from the investigative body and transfer it to the investigator with the obligatory indication of the grounds for such transfer (clause 11, part 2, article 37). Usually such a need is due to the impossibility of completing the inquiry within the established Art. 223 of the Code of Criminal Procedure, the term or the increased complexity or importance of the case, when transferring it to the investigator will help improve the quality and efficiency of the investigation. The transfer of the case to the investigator may also be due to the fact that the inquiry is carried out on a significant number of crimes, and the number of investigators in certain areas is small. However, the need for transfer may also arise if the case under investigation by the investigator is actually being investigated by the investigative body and the prosecutor restores legal order by transferring it to the investigator. In the latter case, we are talking about the prosecutor performing a supervisory function.

It is necessary to point out the conflict of legislative norms relating to the prosecutorial powers in question. Thus, Federal Law No. 90-FZ of June 6, 2007 “On Amendments to the Criminal Procedure Code of the Russian Federation” in paragraph 8 of Part 2 of Art. 37 of the Code of Criminal Procedure, it was decided to make an amendment - to secure for the prosecutor the right to seize any criminal case for transfer to an investigator, not only from the investigative body, but also directly from the interrogating officer. However, this change was not included in the official text of the Code of Criminal Procedure, although it was not formally canceled by anyone. The fact is that the earlier Federal Law of June 5, 2007 N 87-FZ “On Amendments to the Criminal Procedure Code of the Russian Federation and the Federal Law “On the Prosecutor’s Office of the Russian Federation” gave a new version of Art. 37, in which the point relating to the seizure of the case from the investigative body was no longer presented under number 8, but under number 11; the change concerning the prosecutor’s seizure of the case not only from the investigating agency, but also from the interrogating officer, was generally absent. The later Federal Law No. 90-FZ of June 6, 2007 erroneously introduced this change as before in paragraph 8 of Art. 37, in which, after the amendments made by Federal Law No. 87-FZ of June 5, 2007, we were already talking about a completely different power of the prosecutor (namely, his right to participate in court hearings when considering issues of choosing a preventive measure in the form of detention ). Here, the law enforcer is faced with an extremely rare case when he is allowed to resort to a corrective (corrective) interpretation of a legal norm, which cannot be applied due to an obvious technical error of the legislator. Despite the fact that the Federal Law of June 6, 2007 N 90-FZ has priority over the Federal Law of June 5, 2007 N 87-FZ as a later legal act, it essentially makes a change to something that does not already exist in this place (clause) of the law provision, and therefore cannot be applied in this part. Consequently, the prosecutor’s authority to seize the case directly from the investigator cannot be used at the moment. Obviously, the legislator must correct this inaccuracy by introducing clause 2 of Art. 1 Federal Law of June 6, 2007 N 90-FZ corresponding correction (replace the words “clause 8” with “clause 11”). It must be said that the very possibility of withdrawing a case directly from the interrogating officer, bypassing the inquiry body, in some situations may be important for the prosecutor - for example, when the transfer of the case on the spot, directly from the inquiry officer to the investigator, is caused by an urgent need, and the inquiry body is geographically remote and correspondence with him will take too much time;

7) approve the decision of the investigator to terminate the criminal proceedings (clause 13, part 2, article 37). This power was introduced by Federal Law No. 87-FZ of June 5, 2007. There is uncertainty as to whether the specified authority of the prosecutor extends to dismiss the case on all grounds or only on the grounds provided for in Art. Art. 25, 28, 427 Code of Criminal Procedure. In the three named cases, the law specifically requires the consent of the prosecutor to terminate the case by the interrogating officer. According to clause 41.1 of Art. 5 consent is, among other things, permission to make a procedural decision. Such permission is equivalent to approval of the resolution. It seems that the Federal Law of June 5, 2007 only brought the contents of Art. 37 from Art. Art. 25, 28, 427. Therefore, the extension of these special rules to all other cases of termination of the case would be unjustified. In addition, in accordance with Part 1 of Art. 214, the prosecutor, having recognized the decision of the investigator to terminate the criminal case or criminal prosecution as illegal or unfounded, cancels it and resumes the criminal proceedings. If the prosecutor had previously approved every decision of the investigator to terminate the case, then his authority to cancel the decision previously approved by him would mean the right to cancel his own decisions. However, this does not agree with paragraph 6 of Part 2 of Art. 37, according to the meaning of which only a higher prosecutor can cancel illegal or unfounded decisions of a lower-ranking prosecutor. If we assume that the decision of the investigator to terminate the proceedings in a criminal case is approved by one prosecutor (for example, a district prosecutor), and can be canceled by another, higher one (of a subject of the Federation or his deputy), then the burden on higher prosecutors in checking the materials of criminal cases and making decisions will be too large and they are unlikely to be able to practically implement such a power.

Thus, this norm should be interpreted restrictively: the prosecutor’s authority to approve the investigator’s decision to terminate criminal proceedings applies only to those cases where obtaining the prosecutor’s consent is expressly provided for in the norm establishing the conditions for terminating the case on one or another basis. This is precisely the instruction contained in clause 20 of the Order of the Prosecutor General of the Russian Federation dated September 6, 2007 N 137 “On the organization of prosecutorial supervision over the procedural activities of investigative bodies”;

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See: https://genproc.gov.ru/ru/documents/orders/print.shtml?item_id=65.

approve an indictment or indictment in a criminal case (clause 14, part 2, article 37, clause 1, part 1, article 221);

9) return the criminal case to the inquirer or 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 or indictment and eliminate the identified deficiencies (clause 15, part 2, article 37, clause 2 part 1 article 221). See comment. to Art. 221;

10) submit, through the General Prosecutor's Office of the Russian Federation, a request for interrogation, inspection, seizure, search, forensic examination or other procedural actions provided for by the Code of Criminal Procedure of the Russian Federation on the territory of a foreign state, by bodies of a foreign state in accordance with an international treaty of the Russian Federation, an international agreement or on the basis of the principle of reciprocity (Part 1, Article 453);

11) execute requests for procedural actions submitted in the prescribed manner, received from the relevant competent authorities and officials of foreign states, in accordance with international treaties of the Russian Federation, international agreements or on the basis of the principle of reciprocity (Part 1 of Article 457). See comment. to Art. 457;

12) make decisions on the issue of sending the materials of an initiated and investigated criminal case on the commission of a crime on the territory of the Russian Federation by a foreign citizen who subsequently found himself outside its borders, and the impossibility of carrying out procedural actions with his participation on the territory of the Russian Federation to the competent authorities of a foreign state for criminal prosecution. This authority belongs only to the Prosecutor General's Office of the Russian Federation (Article 458). See comment. to Art. 458;

13) make decisions on requests from competent authorities of foreign states on the criminal prosecution of citizens of the Russian Federation who have committed a crime on the territory of a foreign state and returned to the Russian Federation. This is also the prerogative of only the Prosecutor General’s Office of the Russian Federation (Part 1 of Article 459). See comment. to Art. 459;

14) make decisions on sending to the relevant competent authority of a foreign state a request for the extradition of a person located on the territory of that state. This power is exercised only by the Prosecutor General's Office of the Russian Federation (Part 3 of Article 460). See comment. to Art. 460;

15) make decisions on requests for the extradition of a foreign citizen or stateless person located on the territory of the Russian Federation, accused of committing a crime or convicted by a court of a foreign state. Only the Prosecutor General of the Russian Federation or his deputy has the right to resolve this issue (Parts 4, 7, Article 462, Article 465);

16) send to the court materials confirming the legality and validity of the decision to extradite a person in the event of an appeal to the court of this decision (Part 3 of Article 463);

17) make decisions on the issue of choosing a preventive measure in the manner prescribed by this Code, in order to ensure the possibility of extraditing a person upon receipt of a request for the extradition of a person from a foreign state, if a decision of the judicial authority on choosing a preventive measure in relation to this person has not been submitted in the form of detention (Part 1 of Article 466). See comment. to Art. 466;

18) subject the person in respect of whom a request for extradition has been received to house arrest or take him into custody without confirmation of the said decision by a court of the Russian Federation, if the request is accompanied by a decision of a judicial authority of a foreign state to take the person into custody (Part 2 of Article 466);

19) send a criminal case to court after approval of the indictment (act); hand over copies of the indictment (act) with attachments to the accused, as well as to the defense attorney and the victim, if they request this (Articles 222, 226);

20) support the state prosecution and be the subject of evidence (part 1 of article 86) during judicial proceedings in a criminal case (part 3 of article 37). It should be noted that, in the literal sense of Part 5 of the commented article, the powers of the prosecutor are exercised in criminal proceedings only by district, city prosecutors, their deputies, equivalent prosecutors and superior prosecutors. At the same time, according to paragraph 31 of Art. 5 of the Code of Criminal Procedure, the concept of a prosecutor in criminal proceedings covers: the Prosecutor General of the Russian Federation and the prosecutors subordinate to him, their deputies and other officials of the prosecutor's office participating in criminal proceedings and vested with appropriate powers by the federal law on the prosecutor's office. However, the Federal Law “On the Prosecutor’s Office of the Russian Federation” does not currently contain any list of officials of the prosecutor’s office empowered specifically to participate in criminal proceedings. Thus, if we proceed from the literal interpretation of these norms, assistant prosecutors at all levels cannot exercise the powers provided for in the commented article, including supporting the state prosecution in court. The same should be said about prosecutors of departments and departments, heads of departments of prosecutor's offices of cities and districts. Therefore, the Federal Law “On the Prosecutor’s Office of the Russian Federation” needs to be urgently supplemented with a list of officials of the prosecutor’s office empowered to participate in criminal proceedings;

21) enter into a criminal case of private prosecution (Part 4 of Article 318). According to Part 4 of Art. 321 state prosecutor supports the charge in a court session only when the investigator, as well as with the consent of the prosecutor, the inquiring officer initiates a criminal case for any crime specified in Parts 2 and 3 of Art. 20, if this crime is committed against a person who, due to a dependent or helpless state or for other reasons, cannot defend his rights and legitimate interests. Based on this, we can come to the conclusion that the prosecutor’s entry into a private prosecution case should not be considered his initiation of such a case, but only his support of the state prosecution in court in the cases mentioned above;

22) make appeals and cassation submissions against decisions of the courts of first and appellate instances that have not entered into legal force (Article 354);

23) extend the period of inquiry (Article 223);

24) extend the period for verification by the investigator of a crime report to 30 days if it is necessary to conduct documentary checks or audits (Part 3 of Article 144);

25) according to clause 3, part 5, art. 439 of the Code of Criminal Procedure, the prosecutor retained the right to terminate a criminal case when considering the investigator’s decision to send the case to court for the application of a compulsory medical measure.

5. In clause 12, part 1, art. 448 preserved the authority of the prosecutor of a constituent entity of the Russian Federation to initiate a criminal case against a member of an election commission or a referendum commission with a decisive vote. At the same time, criminal cases against a voting member of the Central Election Commission of the Russian Federation, the chairman of the election commission of a constituent entity of the Russian Federation are initiated by the chairman of the Investigative Committee at the Prosecutor's Office of the Russian Federation (as amended by the Federal Law of July 4, 2003 N 94-FZ and Federal Law dated June 5, 2007 N 87-FZ). This discrepancy can hardly be explained by any rational reasons and, apparently, is the result of a technical error of the legislator, but a change in the law is required to eliminate it.

The main tasks of the prosecutor’s participation in criminal proceedings

The basis of criminal proceedings is the principle of adversarialism and equality of the parties (Article 123 of the Constitution), which provides that only one participant in legal proceedings should perform one criminal procedural function. The prosecutor, according to the Code of Criminal Procedure, belongs to the prosecution, implementing the functions of criminal prosecution.

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At different stages of criminal proceedings, criminal prosecution has its own forms of expression. Criminal prosecution at the pre-trial stages is carried out in the form of a preliminary investigation, and in the judicial stages - in the form of maintaining state prosecution.

The Code of Criminal Procedure establishes the primary role of the prosecutor in criminal prosecution. The procedural skill and activity of the prosecutor in presenting and examining evidence play a priority in ensuring the inevitability of punishment for a crime.

Prosecutors taking part in the consideration of criminal cases solve the following tasks:

• improve the work of maintaining the state prosecution as an effective means of fighting crime; the primary duty of prosecutors is to participate in the proceedings of criminal cases;
• participate in the trial of criminal cases of private-public and public prosecution initiated by a magistrate;
• regularly and personally support the public prosecution;
• to contribute in every possible way to the court’s establishment of the truth, which is important for making a fair, informed and legal decision;
• ensure the participation of public prosecutors in hearings of courts of appeal in criminal cases (only the prosecutor has the right to cassation and appeal of court decisions), etc.

One of the main tasks is to improve the professionalism of public prosecutors who do not have much experience in criminal proceedings. To achieve this, it is important to create a system of professional training and retraining, improve the entire educational and methodological process, and involve legal scholars and experienced practitioners in the educational process; disseminate and study the positive experience of their work, etc.