Prosecutor in pre-trial proceedings. Thesis: Participation of the prosecutor in pre-trial proceedings of criminal cases Other areas of activity of the prosecutor in pre-trial proceedings

Topic 24. Preliminary investigation in pre-trial proceedings and its forms Preliminary investigation is the activity of investigative bodies to collect, verify and evaluate evidence, on the basis of which circumstances relevant to the case are established

62. Powers of the prosecutor in the exercise of general supervision The prosecutor has the right to freely enter the territories and premises of federal ministries and departments and other bodies covered by this branch of supervision, have access to their documents and

59. The powers of the prosecutor to identify offenses The powers of the prosecutor to supervise the implementation of laws are legal means provided to the prosecutor by law, using which he has the right and duty to identify, prevent and

60. Powers of the prosecutor to eliminate and prevent offenses A separate group can include powers related to the prevention and elimination of identified offenses.1. Initiation of a criminal case: grounds for initiating a criminal case, as well as

The main functions of the prosecutor in pre-trial proceedings are prosecution and supervision of the implementation of laws in the activities of the inquiry and preliminary investigation bodies. In addition, the prosecutor also carries out the following functions:6 participates in the investigation of criminal cases carried out by investigators and investigative bodies; coordinates interaction in the detection, investigation and prevention of crimes; considers and resolves petitions and complaints of participants in the process; appeals court decisions; participates in international cooperation.

The prosecutor carries out criminal prosecution, the functions of criminal prosecution, as well as other functions, through the implementation of criminal procedural powers that are assigned to the Code of Criminal Procedure of the Russian Federation and the Federal Law “On the Prosecutor's Office of the Russian Federation”. For these purposes, the prosecutor, on behalf of the Russian Federation, entrusts the investigation of the criminal case to a subordinate prosecutor , investigator, inquiry officer or accepts the criminal case for its proceedings and conducts the investigation in full; participates in the preliminary investigation and, if necessary, personally carries out individual investigative and other procedural actions, ensures the establishment of the events of the crime, the identification and exposure of the person and persons who are guilty of committing it, the filing of charges, the application of criminal procedural coercive measures and the referral of the criminal case to court with indictment.

The implementation of prosecutorial supervision, the function of supervising the implementation of laws by bodies of inquiry and preliminary investigation, is an independent form of prosecutorial supervision and consists in the fact that the prosecutor, on behalf of the Russian Federation, monitors: the execution by investigative bodies of the procedure established by law for receiving, considering and resolving applications for committed or impending crimes and conducting investigations into them, the legality of decisions taken by the bodies of inquiry and preliminary investigation.

The objects of this branch of supervision are the bodies of inquiry represented by the investigator and the head of the body of inquiry, as well as the bodies of preliminary investigation represented by the investigator and the head of the investigation department. The subject of this industry is:

1. observance of human and civil rights and freedoms by the bodies of inquiry and preliminary investigation;

2. compliance by the bodies of inquiry and preliminary investigation with the procedure established by the Code of Criminal Procedure of the Russian Federation for receiving, considering and resolving applications (reports) about crimes committed or being prepared and conducting an investigation;

3. the legality of decisions made by the bodies of inquiry and preliminary investigation.

The powers of the prosecutor to supervise the implementation of laws by the bodies of inquiry and preliminary investigation are established by Article 37 and other articles of the Code of Criminal Procedure of the Russian Federation, as well as other federal laws. The peculiarity of this supervision is that, on the one hand, it is an organic component of the criminal process in pre-trial proceedings, and on the other hand, it stands, as it were, above the criminal process, providing prosecutors with the opportunity to identify, establish and prevent violations of the law in the activities of authorities investigation and other participants in pre-trial proceedings, to take measures to eliminate violations, their consequences and restore the rule of law. Thanks to this feature of his supervision, the prosecutor is called upon to assist the investigative authorities in the optimal implementation of their tasks and functions in the fight against crime.

The identification and establishment by the prosecutor of violations of the law form the actions of the prosecutor to exercise the powers that are granted to him by Article 37 and the Federal Law “On the Prosecutor's Office of the Russian Federation”. First of all, the prosecutor identifies and establishes violations of the law during continuous monthly and one-time checks of the investigative bodies’ compliance with the requirements of the Criminal Procedure Code for the receipt, registration and resolution of statements of crimes. The prosecutor receives information about the state of legality in pre-trial proceedings by studying copies of the most important decisions and other documents that inquirers and investigators are required to send to him; the prosecutor accumulates these procedural acts and other information documents in observation proceedings for each criminal case.

The prosecutor has the right to request for study and verification the entire criminal case, its individual materials, to request from the investigator, interrogating officer information about the detection of crimes, the progress and results of the investigation and interaction with operational search services and other law enforcement agencies and their officials. The prosecutor can obtain information about the state of the law in the case under investigation by participating in the investigation, by being present when an investigator or interrogator conducts an inspection of the scene of an incident or other investigative action, by considering complaints about the actions and decisions of the investigator or the body of inquiry. The prosecutor receives such information by extending the investigation period, giving the investigator, interrogating officer consent to initiate a criminal case, to initiate a petition before the court to select a preventive measure in the form of detention or house arrest, or to perform another procedural action that is permitted on the basis of a court decision.

Identification and determination by the prosecutor of violations of the law in the actions of the investigative body and other participants in the process is also possible when the prosecutor exercises other powers, in particular, when the prosecutor checks the validity of requests for challenges submitted to a lower prosecutor, investigator, head of the investigative department, investigator, head of the inquiry body.

The elimination of violations of the law by the prosecutor, the restoration of the rule of law, the suppression and prevention of violations of the law constitutes the prosecutor’s decision-making in the exercise of powers. These decisions of the prosecutor stop and eliminate violations of the law and restore the rule of law. Facts of concealment of crimes from registration are subject to careful verification and, depending on the nature of the violations of the law, the prosecutor can apply legal regulatory measures to the inquirer, investigator, head of the investigative apparatus, the body of inquiry, announce in writing warnings about the inadmissibility of violations of the law, make a decision on bringing to disciplinary action responsibility for concealing a statement of crime from registration and accounting.

Having discovered a violation of the norms of the Code of Criminal Procedure when an investigator or interrogator makes decisions, the prosecutor is obliged, first of all, to cancel these decisions of the investigator, interrogator, and if there are grounds for this, remove the investigator, interrogator from further investigation and send a motion to bring this investigator, interrogator to disciplinary liability for the committed actions. violations of the law.

The prosecutor is authorized to take measures provided for by law to restore the rule of law, violated human and civil rights and freedoms, and legally protected interests of society and the state. In particular, he should take such measures based on the results of consideration of the petitions and complaints of participants in pre-trial proceedings in cases of crimes, when such petitions and complaints turn out to be justified. The trial is the central stage of the criminal process. The essence of the trial is the resolution by the court of a legal dispute between the prosecutor and the defendant (accused person), the content of which is the question of the defendant’s guilt in committing a crime and the imposition of a certain punishment on him. It is at the trial stage that most criminal cases are considered and resolved on their merits; a comprehensive, complete and objective investigation of the criminal case takes place; incriminating and exonerating circumstances, mitigating and aggravating circumstances are identified - all this in strict compliance with the democratic principles of criminal proceedings.

The main characters during the trial (participants in the trial) are, first of all, the court, as well as the subjects of criminal proceedings performing the functions of the parties at this stage (the public prosecutor, the defendant and his defense attorney, the victim, the civil plaintiff, the civil defendant and their representatives ).

The court occupies a special place in the criminal process; it personifies an independent branch of government and carries out the function of justice by considering and resolving cases.

Participants in criminal proceedings on the part of the prosecution and participants in criminal proceedings on the part of the defense occupy a permanent position in it, have their own interests in the case, and their participation lies in defending them by legal means and means. Each of these groups represents an equal party in a criminal case, having certain rights and responsibilities.

The defense side is represented by: the accused, his legal representative, defense lawyer, civil defendant, his legal representative and representative (clause 46 of article 5 of the Code of Criminal Procedure of the Russian Federation).

The prosecution in accordance with paragraph 47 of Art. 5 of the Code of Criminal Procedure of the Russian Federation at the trial stage are represented by: the prosecutor, the victim, his legal representative and representative, the civil plaintiff and his representative. In addition, on behalf of the prosecutor and in cases where the preliminary investigation was carried out in the form of an inquiry, the inquirer or investigator may support the prosecution in court. But, it should be noted that although this provision is enshrined in the Code of Criminal Procedure of the Russian Federation, according to the order of the Prosecutor General's Office of the Russian Federation dated June 3, 2002 No. 28 “On the organization of the work of prosecutors in the judicial stages of criminal proceedings”, the maintenance of public prosecution in court by officials of the inquiry bodies and investigators must be excluded until further notice.

In cases of private prosecution, the private prosecutor, his legal representative and representative act on the prosecution side. The named procedural figures are carriers of the function of criminal prosecution, which is the procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime (clause 55 of Article 5 of the Code of Criminal Procedure of the Russian Federation).

The defense and prosecution sides have equal rights before the court. The Constitution of the Russian Federation establishes that legal proceedings are carried out on the basis of adversarialism and equality of the parties (Part 3 of Article 123). This provision is enshrined in criminal procedural legislation and is reflected in Part 4 of Art. 15 Code of Criminal Procedure of the Russian Federation. Giving two opposing parties equal rights ensures the implementation of the principle of adversarial criminal proceedings.

Building a trial on an adversarial basis creates the best opportunities for a full and comprehensive study of the circumstances of the case and strengthens guarantees of the rights and legitimate interests of the participants in the proceedings. The adversarial form of litigation involves a dispute, confrontation between equal parties, their desire to outdo each other by using the procedural means provided by law for such a dispute. The collision of two opposing functions - prosecution and defense - gives rise to a dispute, a struggle of opinions. In such a process, every circumstance is examined and every evidence is examined from the point of view of both the prosecution and the defense; the court has the opportunity to hear and weigh all the arguments, both in favor of the prosecution and in favor of the defendant.

The equality of the prosecution and the defense is also enshrined in Art. 244 of the Code of Criminal Procedure of the Russian Federation, according to which in a court hearing the parties have equal rights to file challenges and petitions, present evidence, participate in their research, speak in judicial debates, submit written statements to the court on the issues specified in paragraphs 1-6 of Part 1 of Art. 299 of the Code of Criminal Procedure of the Russian Federation, for consideration of other issues arising during the trial.

During the trial, the parties may submit petitions to call new witnesses, experts and specialists, to request material evidence and documents, or to exclude evidence obtained in violation of the requirements of the Code of Criminal Procedure of the Russian Federation, and other petitions that must be substantiated by the party that filed them.

The parties may challenge any of the participants in the trial in cases where there are circumstances that exclude the possibility of their participation in the criminal proceedings. These circumstances are regulated in detail in Chapter 9 of the Code of Criminal Procedure of the Russian Federation. An application for recusal presupposes its motivation, the presentation of specific data on the existence of circumstances precluding the participation of a person in criminal proceedings.

During the trial, the parties have the right to present evidence, i.e. any information on the basis of which the court establishes the presence or absence of circumstances to be proven, as well as other circumstances relevant to the criminal case, to equally participate in their study.

Thus, the parties are given equal rights of evidence, that is, both the prosecution and the defense are equally endowed with the opportunity, using various procedural means, to defend their opinion regarding the case under consideration.

Prosecutor

Subjects from the prosecution

Prosecution authorities

· Prosecutor

· Investigator

· head of the investigative body

· Inquiry body

· Interrogator

· Head of the inquiry body

Private persons accusations

o Victim

o Private prosecutor

o Civil plaintiff

o Representatives of the victim private prosecutor and civil plaintiff

31) prosecutor - 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 the corresponding powers by the federal law on the prosecutor's office;

(the prosecutor himself, his deputies, senior assistants and assistant officials of the prosecutor’s office)

1) Function of criminal prosecution

2) The function of supervision over the legality of proceedings, inquiries and investigations

The prosecutor is not the head of the criminal prosecution. But there were changes in 2007—limitation of powers during supervision of investigations and expanded powers of departmental control. But, despite this, the prosecutor is supervising the investigation. The prosecutor has some powers, which are an expression of the function of criminal prosecution - he sends materials to resolve the issue of initiating a criminal case at the beginning of criminal prosecution. He may cancel the decision not to initiate criminal proceedings due to incomplete verification of the application and give instructions that the verification be carried out comprehensively.

There is the power to approve a criminal report or indictment and send the case to court for consideration on its merits. In the judicial stages, he also carries out criminal prosecution - the state prosecutor supports the prosecution in court on behalf of the state - this is also an expression of the function of criminal prosecution.

POWERS OF THE PROSECUTOR WHEN SUPERVISING THE INVESTIGATION AND INQUIRY

· Verify compliance with Federal Law requirements when accepting registration and resolving reports of crimes

Supervised objects - (internal affairs bodies - investigators - the prosecutor supervises them, only the border service of the FSB, customs authorities, commanders of military units, state fire supervision authorities, bailiff service, FSIN)

· Makes a reasoned decision to send relevant materials to the investigative body to resolve the issue of criminal prosecution

· Requires the bodies of inquiry to eliminate violations of federal legislation committed during the inquiry.

· as well as give written instructions to the investigator about the direction of the investigation, the production of procedural proceedings (there was the same authority in relation to the investigation, but now it is not)

· Give consent to the investigator to initiate before the court a petition for the selection, cancellation or change of a preventive measure or for the production of a multi-procedural action that is allowed on the basis of a court decision.

· Allows challenges filed to the investigator, as well as his self-recusations

· Participates in court hearings during pre-trial proceedings regarding the selection of a preventive measure

· The prosecutor can approve the Indictment and send the case to court.

· And if the case is not fully considered, then he can return the case to the investigator with written instructions for the proceedings.

· Refers for the re-drafting of the indictment

Returns for termination

· Approves the termination order

· Or cancels the termination order

Article 226. Decision of the prosecutor in a criminal case received with an indictment

1. The prosecutor considers the criminal case received with an indictment, and within 2 days makes one of the following decisions on it:

1) on approval of the indictment and on sending the criminal case to court;

2) on the return of the criminal case for additional inquiry or re-drafting of the indictment if it does not comply with the requirements of Article 225 of this Code with its written instructions. In this case, the prosecutor may set a period for conducting an additional inquiry of no more than 10 days, and for re-drawing the indictment - no more than 3 days. Further extension of the inquiry period is carried out on a general basis and in the manner established by parts three to five of Article 223 of this Code;

3) on termination of a criminal case on the grounds provided for in Articles 24 - 28 of this Code;

2. When approving the indictment, the prosecutor has the right, by his decision, to exclude from it certain counts of the charge or to reclassify the charge to a less serious one.

3. A copy of the indictment with attachments is handed over to the accused, his defense attorney and the victim in the manner prescribed by Article 222 of this Code.

In the form of a consequence-

· Demands from investigative authorities to eliminate violations of the law - this requirement, as a rule, is fulfilled, since the prosecutor will then justify this requirement in court

· has the right to demand 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 decisions on them

· cancel illegal or unfounded decisions of a lower prosecutor

(the investigator can take one position on the case, and the prosecutor another, as a rule, they agree with each other)

· consider the investigator’s information about disagreement with the prosecutor’s demands presented by the head of the investigative body and make decisions on it

· transfer a criminal case or materials for verifying a report of a crime from one preliminary investigation body to another (except for the transfer of a criminal case within the system of one preliminary investigation body)

· approves the indictment in a criminal case - other types of decisions than when with an interrogating officer. The decision to return the criminal case to the investigator to conduct an additional investigation, change the scope of the charge or qualify the actions of the accused or re-draft the indictment and eliminate the identified deficiencies with its written instructions; on sending a criminal case to a higher prosecutor for approval of the indictment, if it is within the jurisdiction of a higher court.

The prosecutor cannot terminate the case on his own in the form of an investigation (when the inquiry may require termination, and when the investigation cannot - but this is illogical - in practice they agree.

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TRIAL STAGES

1) function of prosecution - substantiates the indictment thesis before the court, participates in the direct examination of evidence, and speaks in the debates of the parties. St 246

7. If during the trial the public prosecutor comes to the conclusion that the evidence presented does not support the charge brought against the defendant, then he refuses from the charge and sets out to the court the reasons for the refusal. Full or partial refusal of the public prosecutor to charge during the trial entails the termination of the criminal case or criminal prosecution in whole or in the relevant part on the grounds provided for in paragraphs 1 and 2 of the first part of Article 24 and paragraphs 1 and 2 of the first part of Article 27 of this Code .

Is he obligated or entitled to refuse? Order of the Prosecutor General No. 185 - The prosecutor, if he comes to the conclusion that it is worth dropping the charge, then he turns to a higher prosecutor. If he agrees, then there will be no charges, and if he does not agree, he replaces the prosecutor or will support the charges himself.

And whether the state prosecutor can appeal the verdict due to its severity (the prosecutor asked for a conditional sentence, the court actually appointed it, the prosecutor can appeal) - it is taken out of the function of criminal prosecution.

Thus, the Prosecutor in the judicial stages performs not only a criminal prosecution function, but also a human rights function.

Article 5 – any official of the prosecutor’s office can be a public prosecutor.