Procedure for appointing a state prosecutor and preparing his/her for trial

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INTRODUCTION.

Despite the existence of the domestic criminal procedure law, as well as the publication of departmental acts of the Prosecutor General of the Russian Federation, the legal regulation of the activities of the public prosecutor in terms of consideration of criminal cases by the courts in the first instance has gaps. There are issues in the implementation of these norms, which requires a number of legislative changes.

According to the consolidated judicial statistics of the Supreme Court of the Russian Federation, for 12 months of 2024, federal courts of general jurisdiction and justices of the peace in the first instance completed the production of 659878 criminal cases, in turn, for the same period in 2023, 727168 were considered, in 2022 770851 criminal cases [12]. Despite the decrease in the number of criminal cases, judicial statistics data indicate the prevalence and importance of paying due attention to this area of ​​​​the prosecutor's office. In the Soviet legal reality, prosecutorial supervision was comprehensive in nature, and it extended to the sphere of administration of justice. Article 3 of the USSR Law "On the USSR Prosecutor's Office" [10], among other areas of activity of the Soviet prosecutor's office, names supervision of the implementation of laws during the consideration of cases in courts. Article 32 of the above-mentioned law secured the powers of the prosecutor in this area of ​​supervision.

The scale and interdisciplinary nature of the issues under study require an integrated approach that combines knowledge and skills in the fields of constitutional, criminal and criminal procedural law.

The specificity of the subject of the study allows us to focus our research efforts on one area and obtain results that correlate with the objectives. The study seeks to obtain representative and scientifically reliable results that should be based on a solid empirical base that requires the analysis of a large volume of judicial practice and other legal material in different jurisdictions. However, it is the comparative method that will ensure that the work complies with modern principles of organizing legal research and the best international practices.

The theoretical basis of the study is formed by the scientific works of E.R. Ergashev, V.A. Lazareva, N.P. Kirillova, S.V. Zelenetsky, O.S. Kapinus, S.G. Savitsky, V.P. Bozhev, P.P. Rukavishnikov, V.M. Bozrov, M.S. Strogovich, T.K. Ryabinina, O.Ya. Baeva, D.A. Mezinova, B.A. Tugutova, V.O. Trofimova, A.A. Mikhailov and others.

RESULTS AND DISCUSSION

In the current law, the procedure for appointing a public prosecutor begins with giving an order to support the public prosecution. The procedure is not regulated at the legislative level. It is assumed that this activity is more of an organizational nature than a procedural one. However, the procedure for the prosecutor to enter the criminal process already in the status of a public prosecutor must be legally enshrined.

For example, T.A. Ermakova proposes to amend Article 221 of the Criminal Procedure Code of the Russian Federation [14] concerning the prosecutor's obligation, after the approval of the indictment, to give an order to support the public prosecution to one or more employees of the relevant prosecutor's office in writing, and also to supplement the definition of the concept of "public prosecutor" as follows: "an official of the prosecutor's office who supports the prosecution on behalf of the state in court in a criminal case from the moment he is given an order to do so" [4].

B.A. Tugutov recommends introducing a virtually identical definition into the criminal procedure law [13]. Such a definition seems quite logical and practically necessary; filling the existing gap will determine the moment of granting the prosecutor the status of a state prosecutor, and therefore will clarify the definition of powers in criminal proceedings. As a rule, prosecutors who are empowered to approve an indictment (resolution, act) do not participate in the consideration of a given criminal case and do not support the state prosecution in it. It is obvious that the prosecutor who is entrusted with supporting the prosecution in court can already more objectively evaluate the presented evidence in its entirety when studying the case materials, find any contradictions, since he did not participate in the preliminary investigation. In this case, his position can be the most thoughtful and balanced, since he is responsible for completing the work on the consideration of the criminal case. In this case, the prosecution will be built to a significant extent on the presented case materials.

There is another position: the state prosecutor often cannot form an internal conviction regarding the proven guilt of the defendant due to lack of due knowledge of the case materials, which may lead to a passive position of the prosecutor in the process [9]. The Prosecutor General of the Russian Federation in Order No. 376 [11], dedicated to the participation of prosecutors in criminal proceedings, draws special attention to the fact that the appointment of state prosecutors should be carried out in advance and in writing, which will provide a real opportunity for the most complete study of the case materials and preparation for the trial, in particular, will allow for the analysis in aggregate and evaluation of the evidence collected in the case, the formation of one's own position, the preparation of a plan for the examination of evidence, the determination of their optimal order and the most important points to which the court and other participants in the process should pay attention.

N.P. Kirillova notes that the activities of prosecutors approving the indictment and prosecutors supporting the indictment in court were coordinated in the St. Petersburg prosecutor's office. The latter were instructed to support the state prosecution in advance; they were allowed to study the case materials together with the first group. The author of the study recognized this experience as successful and suggests that this procedure of activity be enshrined in law, and that state prosecutors be given the right to either agree to the approval of the indictment or to share their opinion when making a decision on a criminal case received with an indictment [8, p. 112]. This proposal can be taken into account since the state prosecutor will be the most demanding in relation to all the case materials being studied, since it is he who may subsequently experience the negative consequences of a poorly conducted preliminary investigation.

Part 4 of Article 246 of the Criminal Procedure Code of the Russian Federation and paragraph 1.4 of the Order of the Prosecutor General of the Russian Federation No. 376 [11] establish the possibility of forming groups of state prosecutors. The use of such a right seems justified in the most complex, multi-episode cases. This provision was also introduced in order to increase the effectiveness of maintaining the state prosecution.

The law does not contain a procedure for creating such groups, but it is partially specified in paragraph 7 of the Order of the Prosecutor General No. 376 [11], disclosing the powers of the Prosecutor General and his deputies, prosecutors of the subjects and those equal to them in determining the composition of the group of prosecutors and its leader. However, a number of issues are not regulated.

Firstly, it is not clear what document will formalize the decision to create a group of prosecutors. Z.Sh. Gataullin proposes to do this by issuing a corresponding resolution by analogy with the creation of an investigative group in accordance with Article 163 of the Criminal Procedure Code of the Russian Federation [2, p. 20]. It is believed that this will greatly complicate the procedure, so it is proposed to formalize such a decision in the form of an order to support the state prosecution by a group of prosecutors.

Secondly, it is not defined how the group members will be selected. Some authors believe that when forming a group of prosecutors, it is important to take into account the experience of each of them, their level of knowledge, qualifications, psychological compatibility with each other and communication skills in a team [15, p. 89]. A leader must be appointed to organize the work in the group. Others note that the determining criterion should be the experience of supporting the prosecution in cases of this category [1, p. 38]. It is assumed that this issue can be resolved by introducing an amendment to Part 4 of Article 246 of the Criminal Procedure Code of the Russian Federation: "The composition of the group of state prosecutors is determined by the person authorized to create it." Thus, thanks to the creation of a group of prosecutors, it becomes possible to more rationally distribute the workload both in preparation for the trial [7, p. 45] and during the consideration of the case in court, to most fully study the materials of the criminal case, navigate them, and take an active position at the stage of the judicial investigation.

Preparation for supporting the state prosecution is a lengthy process and requires careful attention from the prosecutor, even the most experienced one. For this purpose, in practice, a trial preparation plan can be offered to help the prosecutor, since planning will optimize the preparation and structure it. The prosecutor draws up the preparation plan independently, based on his own experience, but, as a rule, the plan contains the following points: a thorough study of the case materials; study of regulatory legal acts, judicial practice for this category of cases, the necessary departmental acts of the Prosecutor General of the Russian Federation; forecasting various situations that may arise during the trial; planning activities to support the state prosecution, building prosecution versions.

Prosecutors do not always devote enough time to studying the case materials, believing that they will be able to study all the circumstances during the trial: during the interrogation of witnesses, when examining other evidence. This may lead to various consequences, for example: the state prosecutor cannot be absolutely sure of the sufficiency, reliability, admissibility, relevance to the case of the evidence collected by the preliminary investigation bodies, and, consequently, problems may arise with a substantiated motion to disclose the case materials. The prosecutor cannot indicate the correct sheets of the case, looks for the necessary documents in the inventory, if he has not made the appropriate notes, begins to read out documents in a row, including those that are not evidence, which may cause reasonable objections from the defense and comments from the court; filing a motion to supplement the judicial investigation also becomes extremely difficult - it is difficult to decide what else to supplement the information in the case with if you have a very superficial idea of ​​​​what is already in the materials [3, p. 474]; difficulty in identifying contradictions in the testimony of participants in the process. The very situation in the court session does not allow to track the process of evidence formation, to analyze the evidence from the position of their interrelation and consistency, and, consequently, to evaluate them. In accordance with the provisions of Art. 88 of the Criminal Procedure Code of the Russian Federation, the evaluation of evidence is also one of the powers of the prosecutor in the court session, and the low quality of the prosecutor's preparation hinders its implementation.

Thus, the public prosecutor is obliged to know the materials of the criminal case in as much detail as possible. In order to create conditions for this, it is necessary to legislatively reflect the minimum period before the start of the trial, during which the prosecutor must be instructed to support the prosecution, as, for example, in Art. 221 of the Criminal Procedure Code of the Russian Federation, a ten-day period is established for reviewing the case materials and making a decision on a criminal case received with an indictment, or to attach the moment of making a decision on the instruction to support the state prosecution to the moment of sending the criminal case to the court. Not only material evidence is subject to study, but also procedural documents of officials of investigative bodies, judges. In this case, there are no trifles, every moment is essential.

The study of case materials can be carried out in two ways: chronologically or systematically. The first involves a sequential study of all materials of the criminal case, starting from the very beginning. This method has an obvious advantage - it is easier to understand the logic of the investigation, the circumstances of the discovery of certain evidence. The second is that the indictment is studied first, and the remaining evidence and other procedural documents are compared with it. Such a study seems to be the most justified when familiarizing oneself with multi-episode cases or with cases initiated against several persons. Thus, O.A. Zaitseva notes that 68% of respondents prefer to study case materials in a systematic way, and only 32% - in a chronological way. The order of study can be chosen by each prosecutor at his own discretion depending on experience and other factors, the main thing is to pay due attention to the entire set of procedural documents that form the basis of the criminal case [5, p. 249]. The trend revealed in the survey seems to be more negative than positive. The chronological method ensures the most complete study of case materials.

It should be borne in mind that the indictment reflects the current position of the investigator, it discloses the evidence that is aimed at supporting his version of what happened, the assessment of the evidence is given precisely from the point of view of the investigator, that is, it is one-sided, while the chronological method allows you to look at all the case materials from the outside, critically, and analyze them most objectively and impartially.

During the study of the case, the prosecutor must make appropriate notes, write down questions that arise during the study of the materials, contradictions, inaccuracies that can be clarified during the trial. Here it is extremely important to do this in writing, since supporting the state prosecution is a responsible task, and its implementation must also be approached accordingly, you cannot rely on memory, since often several cases are in progress at once, due to the absence of persons, meetings are postponed, details are forgotten. It is necessary to think about what questions to ask during interrogations, what motions to make, in what order to present material and other evidence to the court, analyze the possible tactics of the defense and, based on this, build a line of prosecution [8, p. 285]. The prosecutor must be prepared for any turn of events in the process, and, if necessary, in a difficult situation - to orient himself in time.

CONCLUSION AND FINDINGS

According to the provisions of Part 1 of Article 234 of the Criminal Procedure Code of the Russian Federation, the general rules of judicial proceedings must be observed during the preliminary hearing, which means that the prosecutor has the same procedural rights during the preliminary hearing as during the proceedings in the court of first instance: to file motions, make statements, express their opinion on issues arising during the hearing, and file challenges. But mainly, at this stage, the prosecutor's accusatory activity consists of refuting the arguments of the defense and the court about the existence of obstacles to scheduling a court hearing. In this case, the main task of the prosecutor is to prevent the exclusion of evidence, the motion for recognition of which as inadmissible is filed by the defense. The fact of recognition of evidence as inadmissible may become an obstacle to maintaining the prosecution or serve as grounds for terminating the criminal case, returning it to the prosecutor.

The purpose of the prosecutor's participation in the preliminary hearing is to convince the court of the need to consider the case on the merits in order to subsequently prove the guilt of the accused. Article 37 and Art. 234 of the Code of Criminal Procedure of the Russian Federation does not include the participation of the prosecutor among the mandatory conditions for holding a preliminary hearing, however, the exercise of the power to object to the filed motions to exclude evidence by the defense belongs to the prosecution, which is represented by the prosecutor. In addition, paragraph 3 of the Order of the Prosecutor General No. 376 [11] establishes the obligation to “pay due attention to preparation for participation in the preliminary hearing,” from which one can conclude that the participation of the prosecutor is necessary at this stage.

According to Part 5 of Article 236 of the Criminal Procedure Code of the Russian Federation, the prosecutor may change the charge by reducing its scope, reclassifying it, excluding qualifying features, or completely or partially abandoning it.

Thus, the problems of appointing and preparing prosecutors to support the state prosecution can be resolved by enshrining at the legislative level issues related to the order to support the state prosecution, its procedure, and the terms for appointing state prosecutors in order to unify this procedure and give prosecutors the time specified by law to carry out all necessary preparatory actions.

It is advisable to provide in Part 4 of Article 246 of the Criminal Procedure Code of the Russian Federation a rule that the decision to create a group of prosecutors is formalized in the form of an order to support the state prosecution by a group of prosecutors, and also to supplement the above-mentioned norm with the wording: “The personal composition of the group of state prosecutors is determined by the person authorized to create it.” This problem is considered at the intersection of two scientific disciplines - prosecutorial supervision and criminal procedure, in this regard, the research perspective involves not only procedural aspects, but also methodological and tactical ones, which must be taken into account in the legal regulation of the status of the public prosecutor in order to improve the quality and effectiveness of maintaining the public prosecution.

About the authors

Vladimir Yu. Golubovsky

Author for correspondence.
Email: 63wladimir@mail.ru

Doctor of Law, Professor, Chief Researcher All-Russian Research Institute

References

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