On the Role of the Prosecutor in Initiating a Criminal Case and Initiating Criminal Prosecution

Lex Russica ◽  
2021 ◽  
pp. 85-94
Author(s):  
Т. Yu. Vilkova
Keyword(s):  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
The Subject ◽  
The Russian Federation ◽  
The Right ◽  
Special Competence ◽  
State Body

The paper shows that the consolidation of the functions of the prosecutor’s office of the Russian Federation at the constitutional level leads to the need to return to the question of the effectiveness and sufficiency of the prosecutor’s powers to independently initiate a criminal case, initiate criminal prosecution, and bring charges. The modern models of granting various subjects the authority to initiate and carry out criminal prosecution, to bring charges in criminal procedural comparative studies are identified and analyzed. They are: 1) a system of public prosecution, or a monocratic model, in which criminal prosecution is initiated exclusively by the decision of state bodies with appropriate special competence, primarily the prosecutor’s office (prosecutor’s monopoly); 2) an ex officio prosecution system, or a polycratic model, when the subject of criminal prosecution is any of the state bodies authorized to conduct proceedings in a case, there is no monopoly of one state body or official to initiate criminal prosecution; 3) a private prosecution system, when the subject of criminal prosecution is either the victim or his legal successors; 4) a “people’s” system charges, in which any private person has the right to initiate criminal prosecution, regardless of whether he is a victim or not. The conclusion is substantiated that Russia belongs to the states in which the polycratic ex officio model is combined with private prosecution in certain categories of cases, while, unlike most other states, the prosecutor is not among the officials authorized to initiate criminal proceedings and/or criminal prosecution. It is shown that the lack of powers of the prosecutor in pre-trial proceedings hinders the achievement of the purpose of criminal proceedings. It is concluded that it is necessary to return to the prosecutor the authority to initiate a criminal case independently.

scholarly journals Examination and subsequent evaluation of criminal case materials by the prosecuting attorney as the basis for effective organization of the judicial inquiry

2020 ◽  
pp. 249-261
Author(s):  
Ol'ga Anatol'evna Zayceva
Keyword(s):  
Russian Federation ◽  
Legal Framework ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Public Prosecution ◽  
Legal Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Effective Organization ◽  
Fundamental Consideration

The subject of this article is the activity of the prosecuting attorney in the maintenance of public prosecution. The research methodology includes dialectical, logical, formal-legal, and hermeneutical methods. The legal framework for this research is comprised of the Constitution of the Russian Federation, criminal procedure legislation, as well as local normative acts regulating the questions of participation of prosecutors in the judicial stages of criminal proceedings. Emphasis is made on the questions of theoretical and applied nature, related to consideration of criminal case materials by the prosecutor. The article explores the positions of scholars regarding prosecutor’s preparation for the legal proceedings, specificity of prosecutor's work at the stage of preparing for maintenance of state prosecution in court. The conclusion is formulated that the effectiveness of maintenance of prosecuting attorney depends on the level of his preparation to the legal proceedings, which includes examination of criminal case materials. The author highlights two key stages of preparation of the prosecutor to maintenance of public prosecution: examination and subsequent evaluation of criminal case materials; participation in the preliminary hearing and fundamental consideration of criminal case .The author believes that activity of the prosecutor is aimed at formation of inner conviction and maintenance of prosecution in court.

scholarly journals On legal succession in reconciliation of criminal cases of private prosecution

2021 ◽  
pp. 33-42
Author(s):  
Aminat Alkhazovna Batchaeva
Keyword(s):  
General Rule ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Effective Implementation ◽  
The Subject ◽  
State Coercion ◽  
The Russian Federation ◽  
The Right

The subject of this research is the criminal prosecution of cases established by the Part 2 of the Article 20 of the Criminal Procedure Code of the Russian Federation, which is carried out in private capacity and significantly modifies the rights and responsibilities of the parties to criminal proceedings. Pursuant to the general rule, the state authorities and officials do not carry out private prosecution cases. In view of this, close attention is given the procedural activity of private prosecutor, who is vested the right in application of measures of state coercion, but entrusted with responsibility on formulating, proving, and pressing charges in court. Retrospective analysis of the Russian criminal procedure legislation reveals that modern legislation has no legal succession of the centuries-long experience of classifying a range of offences as cases of private prosecution. The author believes that the list of cases of private prosecution can be extended by taking into account the provisions of the Criminal Law and Practice Statute 1864, Regulations of Punishments Imposed by Justices of the Peace, which enables reconciliation of the parties and entails unconditional termination of proceedings in certain categories of minor offences. This would ensure the effective implementation of criminal proceedings, restoration of social and legal justice, and accessibility of justice to general public.

4. The course of the trial

Evidence ◽  
2019 ◽  
pp. 140-200
Author(s):  
Roderick Munday
Keyword(s):  
Criminal Proceedings ◽  
Criminal Cases ◽  
Trial Judge ◽  
The Core ◽  
The Subject ◽  
The Right

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: the right to begin; the role of the trial judge; the judge’s right to call a witness; examination-in-chief; hostile witnesses; cross-examination; re-examination; calling evidence relating to witnesses’ veracity; witness support; the Crown’s right to reopen its case; and special protections extended to various classes of witness in criminal cases. Many of the rules apply to civil and criminal proceedings alike. However, as elsewhere in this book, the accent will be on rules of criminal evidence.

Forced to sexual activities: legal positions of Supreme Court of the Russian Federation and Republic of Kazakhstan

2019 ◽  
pp. 175-189
Author(s):  
Ardak Alimkhanovna Biyebayeva ◽  
Aigul Mailybayevna Kalguzhinova ◽  
Vera Anatolievna Chunyaeva
Keyword(s):  
Juvenile Justice ◽  
General Procedure ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Norms ◽  
Legal Proceedings ◽  
Sexual Activities ◽  
The Subject ◽  
The Russian Federation

The relevance of the study is due to the importance of finding effective and at the same time humane measures to combat crime against minors that meet the generally accepted principles and norms of international law. The purpose of the study is to consider the international legal norms that form the basis of standards in the field of implementation of the rights of minors involved in the criminal proceedings orbit. We consider some aspects of the fair juvenile justice standards implementation in the Russian criminal procedure legislation. We analyze the provisions of the key normative acts in the field of juvenile justice, their application practice, as well as doctrinal approaches to the prospect of further improvement of the criminal procedural form of legal proceedings against minors. On the basis of the analysis, we highlight the proceedings features in the criminal cases category: criminal prosecution can be initiated only after reaching a certain age; expanded the subject of proof; the production involves additional participants; the establishment of additional grounds and conditions for the use of coercive measures related to the restriction of freedom; confidentiality, which determines the characteristics of the trial; expansion of the range of issues resolved by the court in sentencing. It has been concluded that the existing domestic criminal proceedings the order of proceedings in criminal cases in juvenile, despite the peculiarities that distinguish it from the general procedure, it is impossible to recognize the self-differentiated procedure.

scholarly journals Meaning of the Category “Validity of the Charge” in Criminal Proceedings

2021 ◽  
pp. 218-223
Author(s):  
Oksana V. Kachalova ◽  
◽  
Viкtor I. Kachalov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Sufficient Evidence ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Russian Federation ◽  
Simplified Procedure ◽  
Special Order

The aim of the article is to identify the meaning of the category “validity of the charge” in criminal proceedings and the scope of its application. After analyzing the content and legal essence of this category, as well as procedural situations in which it is necessary to establish the validity of the charge, the authors come to the following conclusions. Any coercive measures against suspects and accused persons can be applied only if there are serious grounds to assume that a person is involved in the commission of a crime since the restriction of the most important constitutional rights of citizens who, by virtue of the presumption of innocence, are innocent of committing a crime is possible only in exceptional cases. The validity of the charge (suspicion) assumes that a person is involved in the commission of a crime, as well as the fact of the criminal prosecution of this person. It is established if there is sufficient evidence that a person may have committed a crime (a person was caught committing a crime or immediately after it was committed; the victim or witnesses identified the person as the perpetrator of the crime; obvious traces of the crime were found on the person or their clothing, with them or in their house, etc.). The validity of the charge may be confirmed by a decision to initiate a criminal case and bring a person as an accused, by protocols of detention, interrogations of the accused, the victim, witnesses, and other materials. In the procedural sense, the conditions for establishing the validity of the charge differ significantly. When resolving the issue of the use of detention and other preventive measures, the validity of the charge is established within the framework of a court session in the conditions of adversariality with the participation of the parties. When giving the court permission to conduct investigative and other procedural actions in accordance with Article 165 of the Criminal Procedure Code of the Russian Federation, to ensure the secrecy of the investigation, the issue is resolved in the absence of adversariality with the possible participation of only the prosecutor, the investigator, and the inquirer. The category “validity of the charge” is significant in legal terms in a criminal case with the special order of proceedings. A prerequisite for the court to consider a criminal case in a simplified procedure is the validity of the charge and its confirmation by the evidence collected in the case. The validity of the charge in the appointment of a trial in the special order provided for by Chapter 40 of the Criminal Procedure Code of the Russian Federation is established by the court outside the court session in the absence of the parties. In any of the above situations, the court is responsible for establishing the validity of the charge since failure to establish it means that the decision made is unfounded.

scholarly journals The subject of judicial control in consideration of complaints: controversial issues of legal regulation

2021 ◽  
Vol 2021 (2) ◽  
pp. 104-109
Author(s):  
El'vira Mirgorodskaya
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
The Russian Federation

The purpose of this study was an attempt to theoretically understand the subject of judicial consideration of complaints against decisions, actions (inaction) of officials carrying out criminal prosecution. The research was carried out on the basis of comparative legal, formal logical, empirical, statistical methods. Judicial statistics for the year 2020 have been provided, and legislation has been studied from a historical and contemporary perspective, taking into account the practice of the Constitutional Court of the Russian Federation. The problem is that, in practice, for about 20 years the courts have had difficulties in determining the subject of complaints, since neither in theory nor in practice a consensus has been developed on this issue. The Criminal Procedure Code of the Russian Federation also does not contain a definition of the concept of «subject matter». The situation is aggravated by the presence of evaluative concepts in the text of the law, leading to a varied understanding of the subject of appeal by the courts, which leads to a violation of the constitutional rights of citizens at the pre-trial stages of criminal proceedings. In the article, taking into account the analysis of the practice of the Constitutional Court of the Russian Federation, legislation and the opinion of scientists, a recommendation was made to amend the Criminal Procedure Code of the Russian Federation to specify the subject of consideration of complaints in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation in order to eliminate existing contradictions in practice and increase the level of protection of individual rights in pre-trial proceedings.

scholarly journals A FEW REMARKS REGARDING EVIDENCE FROM THE INTERROGATION OF A WITNESS IN CONNECTION WITH THE SUBJECT OF A COMMUNITY INTERVIEW CONDUCTED IN A CRIMINAL CASE (ARTICLES 214 OF THE CODE OF CRIMINAL PROCEDURE)

Probacja ◽  
2021 ◽  
Vol 4 ◽  
pp. 35-56
Author(s):  
Piotr Rogoziński
Keyword(s):  
Criminal Procedure ◽  
Criminal Case ◽  
Documentary Evidence ◽  
Criminal Proceedings ◽  
The Subject

The author discusses the role of documentary evidence in the form of the background survey in criminal proceedings. He also examines the possibilities and scope of verification of its content by interviewing as witnesses the person who conducted the evidence and the persons who provided information as part of the background survey. He emphasizes that it is justified in this case – in the context of the principle expressed in Art. 174 of the Code of Criminal Procedure – different approach to admitting and taking evidence from the testimonies of witnesses on the circumstances covered by the background survey. The article attempts to select typical cases in which it would be advisable to admit evidence from the testimonies of witnesses for the circumstances identified through the background survey.

scholarly journals Termination of a criminal case (criminal prosecution) as a result of voluntary compensation for damage caused by a crime in the russian criminal court legal proceedings

2021 ◽  
Vol 7 (3B) ◽  
pp. 645-651
Author(s):  
Artem Igorevich Neryakhin ◽  
Dmitriy Aleksandrovich Ivanov ◽  
Vasily Dzhonovich Potapov ◽  
Denis N. Stacyuk ◽  
Tatiana Ivanovna Bondar
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Preliminary Investigation ◽  
Criminal Code ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
Compensation For Damage

The authors study the controversial issues of termination of a criminal case (criminal prosecution) on the condition of voluntary compensation for the damage caused by the crime by the suspect (accused) during the preliminary investigation. The thesis is proved that in Russian criminal proceedings the procedure for voluntary compensation for damage caused by a crime is quite clearly regulated, and if the suspect (accused) voluntarily compensated for the property damage caused, then their actions will be evaluated within the current legal framework, when the fact of compensation for damage creates grounds for exemption from criminal liability and termination of the criminal case (criminal prosecution) in accordance with Articles 75, 76, 761, 762 of the Criminal Code of the Russian Federation, Articles 25, 251, 28, 281 of the Criminal Procedure Code of the Russian Federation.

scholarly journals Improvement of the Procedure of Application of Compulsory Measures of Educational Impact

2019 ◽  
pp. 106-114
Author(s):  
K. A. Tabolina ◽  
Z. R. Dzheyranova
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Educational Impact ◽  
Specialized Knowledge ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
A Minor

The article is devoted to the problem of improvement of the procedure of application of compulsory educational measures in criminal proceedings against minors. The lack of proper regulation of the procedure for the application of compulsory educational measures and the existing legislative gaps determine the need for amendments and additions to the criminal law and criminal procedure law. It is proposed to grant the right to resolve the issue of termination of criminal prosecution and initiation of a petition for the application of a coercive measure of educational impact before the court to the prosecutor dealing with the criminal case brought before him with conviction or indictment. In order to resolve the question of the possibility of rehabilitating a minor through the use of compulsory educational measures, it is necessary to study his psyche using the specialized knowledge, which presupposes an expert opinion in the case. Exemption from criminal liability of minors under the rules of Article 90 of the Criminal Code of the Russian Federation should be treated as the duty rather than the right of the law enforcement agent. Approaches to the solution of the problem connected with execution of compulsory measures of educational impact have been formulated.

scholarly journals DEPARTMENTAL MONITORING OR(AND) PROSECUTOR’S SUPERVISION FOR INVESTIGATION?

2020 ◽  
Vol 6 (72) (2) ◽  
pp. 292-300
Author(s):  
V. M. Togulev
Keyword(s):  
Criminal Procedure ◽  
Significant Part ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Criminal Investigations ◽  
The Past ◽  
The Right ◽  
Almost All

As a result of the 2007-2010 reform, the prosecutor’s office lost the right to initiate criminal investigations and independently investigate them, a significant part of the prosecutor’s authority to supervise the investigative activities of the investigator was transferred from the prosecutor to the head of the investigating authority. These changes have been mixed among practitioners and process scientists. The author considers it inappropriate to return to the prosecutor the right to initiate criminal proceedings, since the prosecutor will have to carry out the whole complex of procedural and investigative actions referred to in art. 144 Code of Criminal Procedure. There is no need to return to the prosecutor’s office and the investigative function, since the prosecutor’s office will become a body of criminal prosecution and supervision and investigation, which will affect the objectivity of its actions and will nullify all the reforms of the investigation carried out over the past 20 years. Nor should powers be transferred to the prosecutor, which as a result of the reform passed to the head of the investigative body. Almost all the powers of the head of the investigative body to implement departmental control over the procedural activities of the investigator to some extent also belong to the prosecutor using special methods of prosecutorial response. The specificity is that the head of the investigating authority uses both the methods of previous and subsequent control, and the prosecutor mainly uses the subsequent one. It is proposed to provide the prosecutor with only one additional authority in relation to the investigator: to give the prosecutor the right, when approving the indictment, to exclude certain points of the charge from it or to re-qualify the charge to a less serious one instead of returning the criminal case to the investigator for these purposes.

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