Art. 37 of the CPC is of considerable importance. It provides the direction and scope of the prosecutor - the figure accompanying the criminal case throughout the investigation and consideration. His responsibilities include two main tasks: ensuring the rule of law and representing the prosecution in a lawsuit. We will talk about them below.
The stages of the criminal process with the participation of the prosecutor
The criminal process is divided into several stages:
- preliminary investigation;
- judicial stage (consists of several stages);
- execution of the sentence.
The article refers to the stages of the investigation and trial.
Each figure performs its characteristic functions and tasks. The prosecutor is no exception.
Art. 37 of the Code of Criminal Procedure of the Russian Federation contains a list of powers of the prosecutor, which he exercises throughout the process at all three stages. At the same time, the functions of the prosecutor are performed by different employees. Practice and expert opinion show that this is a serious problem. Personal responsibility for job performance is eroded.
In addition, although more than one employee is involved in the case, the approval of the indictment is the responsibility of the district prosecutor, and this is the case with all cases. A mechanism designed to ensure control over all matters has now become a formality. And there is a direct dependence on the opinion of the boss.
Part 2, Art. 37 of the Code of Criminal Procedure of the Russian Federation indicates what specific actions the prosecutor has the right to perform at all stages of the investigation and judicial review.
Normative regulation
This article is not the only regulator of the prosecutor. Despite its scope, it does not fully reflect its authority.
They are also regulated by the law on pre-trial detention, orders and instructions of the General Prosecutor's Office on a particular issue. The rules of PECs (regulate the execution of sentences) apply.
There is an unofficial opinion that the array of normative acts of the SE only interferes and does not carry values, since it contradicts the laws for the implementation of which they are adopted.
Whom the law refers to prosecutors
According to Part 1 of Art. 37 of the Code of Criminal Procedure, the prosecutor is a civil servant who performs the duties assigned to him. Prosecutors are called:
- Attorney General and his deputies.
- Prosecutors of regional and republican levels (prosecutors of cities of federal significance are equated to them).
- District level prosecutors.
The position is held by the person managing the institution, all other employees have the status of assistants. According to Art. 37 of the Code of Criminal Procedure of the Russian Federation, they all fulfill the duties of supervision and presentation of charges.
The prosecutor is a subordinate figure. A senior employee of the department has the right to cancel his decision on the complaint of the person concerned or on his own initiative.
All his actions in the framework of a criminal case are formalized by submissions or decisions.
Subject of supervision
The scope of the activities of the prosecutor includes verification of all actions of investigators and interrogators both before the start of the proceedings and after. What are his abilities to exercise his powers?
- Approves or gives permission for the actions specified in the law.
- Considers complaints and makes a decision on them (agree or disagree with them in full or in part).
- It cancels the illegal decisions of the investigator or interrogator or (and) takes measures to terminate them.
The prosecutor is obliged, according to paragraph 3 of part 2 of article 37 Code of Criminal Procedure, to require the elimination of all identified violations. This implies his active role, that is, he does not have to wait for a complaint or a court order to act.
The subject of supervision also includes monitoring operational-search activities (the relevant departments of the prosecutor’s office are engaged in this), however, it must be remembered that the ARD is not related to the criminal process, although it is closely related to it.
The actions of the prosecutor as an official should be motivated, the decision should indicate the reason for making a specific decision. This also concerns the manifestations of the initiative of a higher prosecutor in showing interest in a particular case.
A reference to the law alone is not enough, but this happens regularly and causes difficulties for investigators.
For example, the requirement to redo the indictment should contain references to violations in the compiled document.
The directly supervising prosecutor is not the last resort. An investigator or inquiry officer has the right to challenge his decision with a higher prosecutor with the consent of the head of the investigation or inquiry department.
It is allowed to appeal actions or decisions by an inquiry officer or investigator in court. Art. 37 of the CCP refers to the consideration of disputes by higher prosecutors, but it does not prohibit the dispute to court. In judicial practice, there are many disputes related to appeal against decisions of prosecutors by investigators or interrogators.
Verification of allegations of crime
Part 1, Art. 37 of the Code of Criminal Procedure of the Russian Federation includes monitoring the actions of interrogators and investigators in the tasks of the prosecutor's activities. In particular, the police regularly accepts complaints and complaints from citizens.
The system of recording and recording allegations of crimes is separately checked. So, the prosecutor regularly visits the ATS subordinate to him. However, citizens do not have to wait for a scheduled audit; they have the right to immediately write a complaint to the prosecutor.
He does not have the right to institute criminal proceedings, but he has the right to send materials to persons who have the right to make such a decision.
These powers are enshrined in paragraph 2 of Part 2 of Art. 37 Code of Criminal Procedure. What does it look like in practice? The head of the investigation department or inquiry receives a decision signed by the prosecutor with the attached materials.
He may disagree with the subsequent decision and cancel it. Because of this, the problem of repeatedly initiating a criminal case and canceling this decision arises.
Supervision of the criminal case
The prosecutor checks the correctness of the decision to open a criminal case or refusal to do so. The investigator or interrogator sends a copy of the decision with the attached materials.
The Criminal Procedure Code says about immediate dispatch, but it is provided depending on the workload of the assistant investigator, who also performs the functions of a courier between departments.
As a rule, if there are no obvious gross errors, the prosecutor agrees with the opening of the case and approves it by affixing his signature. The chances of cancellation increase if you immediately write a complaint against the decision. Art. 37 of the Code of Criminal Procedure of the Russian Federation, part 2, clause 6 works, as a rule, in the presence of complaints. The same applies to the abolition of the illegal refusal to initiate proceedings.
Investigation Control
The defendant may argue that the proceedings are biased. How substantiated is the statement of challenge, the prosecutor decides. This issue is in its competence.
The prosecutor also has the right to decide on the transfer of the case from the interrogating officer to the investigator.
Although the supervisor does not conduct criminal proceedings, he has the right to give instructions regarding the conduct of investigative actions and the direction of the investigation as a whole.
For example, an order is given to order an examination, interview witnesses, and demand documents.
The direction of the investigation means the selection of the version of the crime committed.
Among the powers of the prosecutor's office, the transfer of a case from one body to another, for example, a decision may be made on transferring materials to the Investigative Committee from the police.
At one time, the decision of the GP to transfer the cases in which the prosecutor’s officers appeared to the FSB for conducting an investigation from the UK caused great public resonance . Nevertheless, from a formal point of view, the decision was legal.
The role of judicial control over the investigation
Permission to enter housing is given by the court, as well as other actions (wiretapping, monitoring of correspondence).
The prosecutor gives prior consent and takes part in the consideration of the application by the court. If the search was carried out due to the urgency and impossibility of waiting for a court decision, the legality of the investigator’s actions is checked. The meeting is held with the mandatory participation of the prosecutor.
With his participation, it is decided:
- whether the suspect or the accused is in custody;
- release from custody;
- extension of the period of house arrest.
Complaints filed with the court against the actions of the body of inquiry, investigation, prosecutor are considered with the participation of the supervisory authority.
The court is obliged to inform about the appointed meeting and has the right to consider the complaint without the participation of the prosecutor, if he did not appear.
Suspension of the proceedings, its termination
Part 2, Art. 37 of the Code of Criminal Procedure gives the prosecutor the right to support the decision of the inquiry officer or investigator to terminate the criminal case by approving the decision in this regard. Or the prosecutor decides to dismiss the case. The same goes for the suspension of production.
Preparing the case for trial
After the end of the investigation or inquiry, the case is transferred to the prosecutor's office. It goes through the approval stage.
The prosecutor, believing that there are serious violations, sends the case back for revision with written instructions.
What grounds does the law give for this?
- change in the scope of the charge (the number of alleged episodes of criminal activity);
- re-qualification (toughening or mitigating the charge by changing a paragraph or article number of the Criminal Code);
- insufficient evidence of a crime or guilty person;
- infringement of the rights of participants in the process, leading to serious consequences;
- self-incrimination of the accused is suspected.
The law does not specify what other grounds the prosecutor may have. It is understood that it must be based on specific circumstances.
In practice, almost any violation results in the fact that the material is again on the table of the investigator. Such a practice is considered vicious, because the delays in the consideration of cases and provides additional workload for the investigating authorities. All this, of course, lowers the quality of law enforcement.
Part 4, Art. 37 of the Code of Criminal Procedure of the Russian Federation, which gives the right to stop the persecution, unfortunately, is applied less aggressively when the prosecution does not have sufficient grounds to continue the case, as evidenced by statistics.
If the case came from an inquiry
Inquiry is a simplified form of investigation. After completion, it is sent to the prosecutor with an indictment (an analogue of the indictment). Supervisory authority:
- approves the indictment;
- sends back materials for revision;
- terminates the proceedings;
- decides to transfer the case to the investigator.
The prosecutor has the right to mitigate the prosecution or to exclude certain points from it.
The decision to return the materials for further investigation is appealed to a higher prosecutor with the permission of the head of the inquiry.
Special order of consideration of cases
The prosecutor (Article 37 of the Code of Criminal Procedure) is authorized to sign an agreement on a simplified procedure for investigating and considering a case.
Proposed by the investigator and supported by the prosecutor, it is submitted to the court, which makes the final decision.
The essence of the agreement is to plead guilty in exchange for the fact that the maximum penalty will be no more than half of the maximum possible. Provided for crimes, the maximum sentence for which is not more than 5 years in prison.
The law allows to challenge a measure of punishment in higher courts, established circumstances are not in dispute, which becomes a trap for defendants who do not have sufficient literacy.
Almost all criminal cases of light and medium gravity are considered by the courts in a simplified manner.
The participation of the prosecutor in the trial
In the first instance, a preliminary meeting is held at first, it is checked whether the case is ready for consideration, and, in particular, how well the prosecutor has performed his job duties.
Identification of deficiencies leads to the return of the case to the prosecutor, then it is transferred to the investigator or interrogating officer.
The CPC indicates an incomplete list of circumstances that oblige the prosecutor to return the case. At the same time, the case may be considered with them. What is the difference?
While the matter is in the hands of the prosecutor, he can take measures to obtain new evidence, eliminate errors made by the investigator or interrogating officer.
A judge has similar powers, but the purpose of their application is to ensure equality of arms in the trial. Once the case is allowed to be examined on the merits, errors not resolved by the prosecutor can lead to the acquittal of the offender or serious mitigation of the punishment.
The court is not a party to the prosecution, but a third party, and has two ways: either plead guilty or acquit him. Previously, the court could send the case for further investigation as a result of the examination on the merits, now there is no such possibility.
What specific actions to carry out, the prosecutor decides. The judge has the right to give only partial instructions, especially with regard to toughening the prosecution so as not to prejudge the future sentence.
Otherwise, a decision is made to consider the merits of the case.
H 3 tbsp. 37 of the Code of Criminal Procedure of the Russian Federation obliges the prosecutor to support the prosecution, defending the rule of law. You cannot hide facts or evidence that mitigate the accusation or fully justify the defendant.
In a trial, the prosecutor has the right:
- ask questions to participants in the process, witnesses, experts;
- participate in evidence research;
- make petitions.
The occurrence of circumstances justifying the person obliges him to refuse the charge. If they become known later, a protest is filed against the verdict. It is filed by both the prosecutor, who initially participated, and a senior employee of the department.
As article 37 of the Code of Criminal Procedure reads, the prosecutor extends his action to all stages of the process. It is either implemented directly, or disclosed in other provisions. For example, the right to refuse a charge is said to be used in the manner and on the grounds established by the Code of Criminal Procedure.
The prosecutor has significant powers, and the way he uses them helps protect the rights of citizens or, conversely, condones lawlessness.