Lesson 2 (2 hours) 3 points
Prosecutor in criminal proceedings. His authority in various stages of the process.
The following can act as a prosecutor in criminal proceedings: the Prosecutor General of the Russian Federation and prosecutors subordinate to him, their deputies and other officials of the prosecutor’s office participating in criminal proceedings and endowed with appropriate powers by the Law on the Prosecutor’s Office (clause 31, article 5 of the Code of Criminal Procedure of the Russian Federation).
The prosecutor acts at all stages of the criminal process, but his powers at different stages of the process are not the same.
The prosecutor has broad powers at the stages of initiating a criminal case and preliminary investigation. He oversees the implementation of laws by bodies performing operational-search activities (ORA), inquiry and preliminary investigation.
His powers in the pre-trial stages are of an authoritative and administrative nature, which significantly differs from the powers of the prosecutor in the judicial stages of the process.
Other powers used by the prosecutor in the process of investigating a criminal case can be divided into the following groups:
1) giving consent to the initiation by the investigator (inquirer) before the court of petitions for the selection, cancellation or change of a measure of restraint in the form of detention or house arrest, for temporary removal from office, for the issuance of a decision authorizing control and recording of negotiations, for the seizure of property or postal and telegraph dispatches, the performance of a personal search, search or seizure in a dwelling;
2) giving the authorities, carrying out the search-and-search activity, inquiry and preliminary investigation, in writing binding instructions for them, giving sanctions for the performance of certain investigative actions, direct participation in the preliminary investigation, resolving on the merits of issues arising in the course of the investigation, extending the term of the preliminary investigation;
3) permission to challenge the lower prosecutor, investigator, interrogator, as well as their self-recusals, removal of investigators or interrogators from the investigation, withdrawal of the criminal case from the body of inquiry and transfer it to the investigator, as well as from one body of investigation to another, with the obligatory indication of the grounds for such transfer and changes in jurisdiction;
4) approval of the indictment (deed) and sending the case to court, returning the case to the interrogating officer or investigator with his instructions on conducting an additional investigation, suspending or terminating the proceedings on the case, exercising other powers provided by law.
In the judicial stages, the prosecutor acts as a public prosecutor – a party supporting the prosecution on behalf of the state, or as an official authorized to take measures to eliminate violations of the law.
The role of the prosecutor at the stage of initiating a criminal case
The initiation of a criminal case is considered an independent stage in the Russian criminal process. Its immediate tasks are to establish in the act signs of a crime or circumstances that exclude proceedings in the case (grounds for refusing to initiate proceedings – Article 24 of the Code of Criminal Procedure).
The stage of initiating a criminal case can end with one of two decisions: the initiation of a criminal case or the refusal to initiate a criminal case. The decision to transfer a statement or message on the basis of jurisdiction or jurisdiction is not a final, but an intermediate decision (clause 3, part 1, article 145).
The content of this stage consists in the procedural activities of the body of inquiry, the inquirer, the investigator, the prosecutor (and in some cases the court) to consider primary information about crimes (its reception, registration, verification and decision-making). In addition, at the stage of initiating a case, an applicant, a person who has confessed himself, a specialist, an attesting witness, a person giving an explanation can participate.
Procedural activity begins with the appearance of a reason for initiating a case – reporting a crime and ends with a decision to initiate a criminal case or to refuse it.
Changes to the Code of Criminal Procedure, carried out by Federal Laws No. 87-FZ of 05.06.2007 and No. 90-FZ of 06.06.2007, retained the full powers of the prosecutor to supervise and manage the activities of interrogators and bodies of inquiry. The powers of the prosecutor to direct and supervise the activities of investigators have been reduced. At the same time, the powers of the heads of investigative bodies have been expanded. However, this does not mean that the prosecutor does not have the means to respond to the violations of the law committed by the investigators.
The prosecutor no longer has the right to initiate a criminal case. This is the competence of investigators and interrogating officers, who, in turn, are obliged to immediately send a copy of the decision “of the criminal case to the prosecutor, who within 24 hours from the moment of its receipt has the right to cancel it (part 4 of article 146 of the Code of Criminal Procedure). The prosecutor has similar powers in relation to the illegal decision of the body of inquiry and the interrogator to refuse to initiate a criminal case (parts 4 and 6 of article 148 of the Code of Criminal Procedure), canceling which he sends it to the head of the body of inquiry with his instructions. to the head of the investigative body to resolve the issue of its cancellation (part 6 of article 148 of the Code of Criminal Procedure).
The Code of Criminal Procedure of the Russian Federation after amendments and additions made to it by Federal Law No. 87-FZ of June 5, 2007 and subsequent Federal Laws, as well as departmental order of the Prosecutor General of the Russian Federation No. 140 of September 10, 2007 “On the organization of prosecutorial supervision for the implementation of laws when receiving, registering and resolving reports of crimes in the bodies of inquiry and preliminary investigation” oblige the prosecutor to respond to violations committed when resolving reports of crimes, in particular, to cancel by his decision an illegal decision to initiate a criminal case, if it was issued without legal reason and sufficient reason.
Cancellation of such a decision is permissible no later than 24 hours from the moment the prosecutor receives the materials that served as the basis for initiating a criminal case. This is the most preferred measure in terms of efficiency. It allows you to correct an erroneous decision at an early stage, to prevent the production of investigative actions that are not necessary. Of no small importance is the fact that the statistical reporting of the number of criminal cases initiated does not include cases, the decisions to initiate which were canceled by the prosecutor.
In modern practice, the police, in addition to being engaged in work on reports of crimes that have taken place, in practice spend a significant part of their time, effort and money on such events. At the same time, it should be noted that in almost all reports of such cases, the period of verification was extended to 10 days, and, in addition, the decision to refuse to initiate a criminal case was canceled by the prosecutor in order to conduct an additional verification.
The reasons for this practice are:
– the desire to prevent involuntary concealment from accounting for crimes, the requirements that are contained in the departmental orders and instructions of the Ministry of Internal Affairs of the Russian Federation;
– weak work of district police commissioners, since applications, as a rule, came from those settlements in which district police officers did not have the necessary professional training, this explains the practice that is not based on the law;
– the applicants were not in all cases warned about criminal liability for knowingly false denunciation of a crime.