Art. 37 CCP RF: Prosecutor

Art. 37 CCP is of considerable importance. It provides the direction and scope of the activities of the prosecutor - the figure accompanying the criminal case throughout the investigation and consideration period. His duties include two main tasks: ensuring the rule of law and representing the prosecution in the trial. About them and we'll talk below.

The stages of the criminal process involving the prosecutor

The criminal process is divided into several stages:

• Preliminary investigation;
• Judicial stage (consists of several stages);
• Enforcement of the sentence.

This article deals with the stages of investigation and trial.

Each figure performs its own functions and tasks. The prosecutor is not an exception.

Art. 37 of the Code of Criminal Procedure contains a list of powers of the prosecutor, which he exercises throughout the process at all three stages. In this case, the functions of the prosecutor are performed by different employees. Practice and opinion of experts show that this is a serious problem. Blurred personal responsibility for the performance of official duties.

In addition, although not one employee is involved in the case, the confirmation of the indictment is the responsibility of the district prosecutor, and so it is with all cases. The 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 of Art. 37 of the Code of Criminal Procedure of the Russian Federation specifies what actions the prosecutor has the right to commit at all stages of the investigation and judicial review.

Normative regulation

This article is not the only regulator of the activities of the prosecutor. Despite its size, 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 this or that issue. PEC norms are applied (regulates execution of sentences).

There is an unofficial opinion that the array of normative acts of the GP only hinders and does not carry any value, because it contradicts the laws for which they are accepted.

Who the law refers to prosecutors

According to Part 1 of Art. 37 of the Code of Criminal Procedure, the prosecutor is a civil servant performing the duties assigned to him. Prosecutors are:

• The Prosecutor General and his deputies.
• Prosecutors of the regional and republican levels (to them are equal the prosecutors of cities of federal significance).
• District-level prosecutors.

The position is occupied by the person in charge of 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 duty to supervise and present charges.

The prosecutor is a subordinate figure. The higher-ranking official 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 within the framework of a criminal case are formalized by representations or decisions.

Subject of supervision

The scope of the prosecutor includes checking all the actions of investigators and investigators both before the commencement of the proceedings and after. What are his options to realize his powers?

• Approves or authorizes the actions specified in the law.
• Examines complaints and decides on them (agree or disagree with them in full or in part).
• Cancels illegal decisions of the investigator or investigator or (and) takes measures to stop them.

The public prosecutor is obliged, according to item 3 ч. 2 ст. 37 of the Code of Criminal Procedure of the Russian Federation, to demand the elimination of all violations revealed. This implies his active role, that is, he does not need to wait for a complaint or instructions from the court to act.

In the subject of supervision is the monitoring of operative-search activity (this is the responsibility of the profile departments of the prosecutor's office), but we must remember that the RDD does not belong to the criminal process, although it is closely connected with it.

The actions of the prosecutor as an official should be motivated, the decision should note the reason for making a specific decision. This concerns the manifestations of the initiative of a higher prosecutor in showing interest in a particular case.

A single reference to the law is not enough, but this happens regularly and causes difficulties for the investigators.

For example, in a request to redraft an indictment, references to violations in the document should be made.

The directly supervising prosecutor is not the last instance. The investigator or the investigator has the right to challenge his decision from a higher prosecutor with the consent of the head of the investigation or inquiry department.

It is possible to appeal actions or decisions by the investigator or investigator in court. Art. 37 The CCP refers to the consideration of disputes by higher prosecutors, but there is no prohibition to refer the dispute to a court. In the judicial practice, there are many disputes related to the appeal of the decisions of prosecutors by investigators or investigators.

Verification of allegations of a crime

Part 1 of Art. 37 of the Code of Criminal Procedure includes in the tasks of the prosecutor's activity control over the actions of investigators and investigators. In particular, it regularly checks the acceptance in the police of complaints and applications of citizens.

Separately, the system for recording and recording allegations of crimes is checked. So, the employee of the prosecutor's office regularly visits the ATS subordinate to him. However, citizens do not need to wait for a scheduled inspection, they have the right to immediately write a complaint to the public prosecutor.

He has no right to initiate criminal proceedings, but has the right to send materials to persons who have the right to make such a decision.

These powers are fixed in cl. 2, part 2, Art. 37 CCP. How does it look in practice? The head of the investigation department or inquiry is given 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 arises of repeatedly initiating a criminal case and reversing this decision.

Supervision of the stage of criminal proceedings

The prosecutor checks the correctness of the decision to open a criminal case or deny it. The investigator or the investigator sends a copy of the decision with the attached materials.

In the CPC written about the immediate sending, but it is provided depending on the workload of the assistant investigator, who also performs the functions of the 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, putting his signature. The chances for cancellation increase if you immediately write a complaint about the decision. Art. 37 of the Code of Criminal Procedure, Part 2, paragraph 6 works, as a rule, in the presence of complaints. The same applies to the cancellation of an illegal refusal to initiate a case.

Control over the conduct of the investigation

The defendant can assert that the production is being biased. To what extent the application for challenge is justified, the prosecutor decides. This question is in his competence.

The public prosecutor also has the right to make the decision on transfer of business from the inquirer to the inspector.

An employee of the supervisory authority, although it does not conduct proceedings in a criminal case, 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 for the appointment of an expert examination, a questioning of witnesses, and the demand for documents.

The direction of the investigation means the choice of the version of the crime committed.

Among the powers of the prosecutor's office is transferring the case from one body to another, for example, a decision may be made to transfer materials to the Investigative Committee from the police.

At the time, the GP decision was made to transfer the cases, in which the employees of the prosecutor's office were involved, to the FSB to conduct an investigation from the UK. Nevertheless, from a formal point of view, the decision was legal.

Role in judicial control over the investigation

Permission to enter housing is given by the court, as well as to other actions (wiretapping of telephone conversations, control of correspondence).

The public prosecutor gives the preliminary consent and takes part in consideration of the petition by court. If the search was carried out because of 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 he decides:

• Whether the suspect or accused is placed in custody;
• Release from custody;
• Extension of the term of house arrest.

Complaints filed in 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 examine the complaint without the participation of the prosecutor, if he did not appear.

Suspension of proceedings on the case, its termination

Part 2 of Art. 37 of the Criminal Procedure Code gives the prosecutor the right to support the decision of the investigator or the investigator to terminate the criminal case by approving the decision in this regard. Either the prosecutor himself decides to terminate the case. The same applies to the suspension of production.

Preparing the case for submission to the court

After the investigation or inquiry is over, the case is forwarded to the prosecutor's office. It passes the stage of approval of the indictment.

The prosecutor, considering that there are serious violations, sends the case back for revision with written instructions.

What are the grounds for the law to do this?

• Change in the scope of the charge (the number of alleged episodes of criminal activity);
• Change in qualification (tightening or mitigation of charges by changing the paragraph or number of the Criminal Code article);
• Insufficient evidence of an offense or a person's guilt;
• Infringement of the rights of participants in the process, leading to serious consequences;
• Suspected self-incrimination of the accused.

The law does not specify what other grounds the prosecutor can have. It is understood that he must proceed from specific circumstances.

In practice, almost any violation is caused by the fact that the material is again on the table with the investigator. Such a practice is considered to be vicious, because the consideration of cases is delayed and the additional burden of investigation bodies is provided. All this, of course, lowers the level of quality of law enforcement work.

Part 4 of Art. 37 of the CCP RF, 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 is sent to the prosecutor with an indictment (analogue of the indictment). Supervisory authority:

• Approves the indictment;
• Sends back materials for revision;
• Terminate the proceedings;
• Decides to refer the matter to the investigator.

The prosecutor has the right to mitigate the charge or exclude certain items from it.

The decision on the return of materials for further investigation is appealed to the higher prosecutor with the permission of the head of the inquiry.

A special procedure for dealing with cases

The prosecutor (Article 37 of the Code of Criminal Procedure) is authorized to sign an agreement on a simplified procedure for the investigation and consideration of the case.

Proposed by the investigator and supported by the prosecutor, it is submitted to the court, which takes the final decision.

The essence of the agreement is the admission of guilt in exchange for the fact that the maximum punishment will not be more than half of the possible maximum. It is provided for crimes, the maximum term of punishment for which is not more than 5 years imprisonment.

The law allows to challenge the punishment in higher courts, the established circumstances are not contested, 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.

Participation of the prosecutor in the judicial process

In the first instance, a preliminary meeting is first held, it is checked whether the case is ready for consideration and, in particular, to what extent the prosecutor has performed his duties well.

Identification of deficiencies leads to the return of the case to the prosecutor's office, then it is transferred to the investigator or investigator.

The CPC specifies an incomplete list of circumstances that oblige the prosecutor to return the case. At the same time, the case can be examined with them. What is the difference?

While the case is in the hands of the prosecutor, he can take measures to obtain new evidence, to eliminate the mistakes committed by the investigator or investigator.

The judge has similar powers, but the purpose of their application is to ensure equality of parties in the judicial process. After the case is allowed to be considered on the merits, errors that are not eliminated by the prosecutor may lead to the acquittal of the offender or serious mitigation of the punishment deserved.

The court is not a party to the prosecution, but a third party, and has two ways: either to convict or acquit a person. Previously, the court could send the case for further investigation as a result of consideration on the merits, now there is no such possibility.

The prosecutor decides exactly what actions to take. The judge has the right to give only partial instructions, especially as regards the toughening of the accusation, so as not to prejudge the future verdict.

Otherwise, a decision is taken to examine the merits of the case.

Part 3 of Art. 37 of the Code of Criminal Procedure obliges the prosecutor to support the prosecution by defending the rule of law. It is impossible to hide facts or evidence that mitigate the charge or fully justify the defendant.

In the trial, the prosecutor has the right:

• Ask questions to process participants, witnesses, experts;
• Participate in the study of evidence;
• Make petitions.

The emergence of circumstances that justify a person, oblige him to abandon the charge. If it becomes known about them later, a protest is filed against the verdict. He is served by both the prosecutor, who initially took part, and the higher-ranking official of the department.

As Article 37 of the CCP RF says, the prosecutor extends its action to all stages of the process. It is either realized directly, or disclosed in other provisions. For example, the right to waive the charge says that it is used in the manner and on the grounds established by the CCP.

The prosecutor has considerable powers, and the way he uses them, promotes the protection of the rights of citizens or, on the contrary, condones lawlessness.