What is a prosecutor's representation? Cassation and appeal presentation of the prosecutor

Functions of the prosecutor

The prosecutor differs in his functions from other citizens and officials in criminal proceedings. For him, the legislation (“Federal Law “On the Prosecutor's Office”, the Code of Criminal Procedure of the Russian Federation) provides for special articles and provisions, according to which he is responsible for observing the legality of the procedural actions being carried out. In this case, the public prosecutor performs only a supervisory function and in no case should he himself participate in investigative actions.

The prosecutor, according to the Code of Criminal Procedure of the Russian Federation, can only give written or oral instructions on the implementation of any actions, and also has the right to freely check the case materials, the compliance of the actions carried out by investigators or inquiry officers, and the norms of the criminal procedure code.

The prosecutor himself does not perform any procedural function and cannot directly interfere in the affairs of investigators or interrogators.

Performance

In court, the prosecutor is the state prosecutor, performing his main functions - upholding the law. In the event that the rights of the parties or legal norms were significantly violated, and the prosecutor saw this, he can make a representation.

A prosecutor's presentation is an act of the prosecutor's response to a violation of the law, submitted to the body or official that is authorized to consider such cases.

The document consists of several parts, namely: introductory, descriptive and operative.

The prosecutor’s presentation is an example of the fact that the state prosecutor can not only petition for a punishment, as many are accustomed to thinking, but also monitor compliance with the law in any area of ​​public life.

The order of the procedure, how to draw it up correctly

The descriptive part of the submission includes the content of the case, its analysis, and indicates the motives that lead to its change or cancellation. The effective part includes the opinion of the public prosecutor about the decision that he insists on making. It is important to clearly state your arguments, since the case is considered only on the basis of the arguments presented.

After drawing up the document, it is signed by the person who compiled it, or by the person who has the right to do so. The act is signed by the prosecutor. If payment of a fee is required, therefore, a receipt must be attached to the requirement. After filing an appeal, the public prosecutor has every right to familiarize himself with the demands of other persons and to submit written objections to them.

Appeal

After a verdict has been rendered in the court of first instance, the prosecutor has the authority to appeal the court decision, which does not yet have legal force, that is, he has the same rights as other participants in the criminal process.

An appeal (prosecutor's appeal) can be used if initially the evidence related to the case was not presented in court, the declared witnesses were not called, and significant motions were rejected. The essence of the case itself does not matter, and the prosecutor’s presentation in a criminal case contains only a description of the violated criminal procedural norms of the law.

It should be noted that evidence or witnesses can only be accepted if they were previously stated in the court of first instance, but were not accepted. This rule applies not only to the prosecutor’s presentation, but also to all appeals to the appellate authority.

The prosecutor can appeal court verdicts, including verdicts of the Judicial Collegium in criminal cases, and verdicts in military cases of the Supreme Court of the Russian Federation.

What is an appeal?

An appeal is a procedural form of documentation that allows you to challenge an unlawful court decision that has not entered into legal force. Any participant in the process - the accused, the victim, the prosecutor and other persons participating in the case - has the right to draw up such a complaint. At the same time, other citizens who are not related to the case can also act as appellants, if a judicial act on such authority was adopted earlier.

In procedural law there are 2 types of appeal:

1. Full. In this case, the case is reviewed from the very beginning and on its merits.
2. Incomplete. This procedure involves checking the court decision of the 1st instance for its validity and legality.

Time limits for appeal

The prosecutor is given 10 days from the date of the verdict in the court of first instance to make an appeal. If this deadline is missed, the public prosecutor is returned the presentation, but he can petition for the restoration of the missed deadlines, indicating the valid reasons for which this period was missed.

Within 14 days from the date of the submission, the body to which this document was sent must make a decision. If the response to review the document is positive, the prosecutor also participates in the process, filing petitions and presenting evidence.

It is necessary to note the importance of the participation of the prosecutor in the appellate court. He must be present so that the process is carried out according to the law, without infringing on the rights and freedoms of citizens, that is, the principle of competition is applied.

Application deadlines

After a judicial act is issued, a period specified by law is given for filing a motion. It is 10 days. If the deadlines are not met, the document will not be considered. But the court, at its discretion, can restore them.

Evidence of a valid lack of timely treatment is most often provided by other participants in the process. Public prosecutors are subject to particularly stringent requirements. Therefore, they need to provide as much information as possible about missed deadlines.

Cassation

The prosecutor's cassation submission is somewhat different from the appellate submission, but carries the same semantic load. The difference is that the appeal is filed against the decision of the magistrates, while the cassation is filed against all others.

This document describes in the same way all violations of criminal procedural norms if they were committed in court at the first stages of consideration of the case. There must be indications of exactly which articles were applied incorrectly, which resulted in a violation of the rights of one of the parties involved in the case.

In addition, the appeal presentation of the prosecutor, just like the cassation presentation, contains a solution to the issue of applying the code in the correct version. The deadlines for filing submissions and actions if they are missed are 10 days from the date of the verdict, or a petition to restore the missed period.

If the prosecutor, after making a submission, decides to refuse this action, he has the right to withdraw the document.

Deadlines for appeal

Court decisions do not take effect immediately after they are issued. The legislation gives time to appeal them - a month from the date of the court decision (Article 321 of the Code of Civil Procedure of the Russian Federation). There is an exception: decisions in cases of administrative violations are contested within a short period of time - 10 days. If the deadlines for an appeal are missed, they can be restored by filing an appeal by the interested party indicating a valid reason for this omission (Article 112 of the Code of Civil Procedure of the Russian Federation). In order to file this petition, it is necessary to meet the deadline within 6 months from the date of the verdict.

Important!

The completed appeals are submitted to the judicial body that made the final decision in the first instance. Then, within 3 days, the appeal along with the case is sent to a higher judicial body, which will examine it.

Supervisory representation

In the event that a court hearing has already been held, but the prosecutor’s cassation submission is not satisfied, he can appeal the decision in a supervisory procedure.

According to the Federal Law “On the Prosecutor’s Office”, the prosecutor has the right to demand any case from the court office, even for which the deadline for filing a complaint or presentation has been missed, and appeal it through the supervisory procedure. If appealing such cases is not within the competence of this prosecutor, he may make a written request that the prosecutor's supervisory submission be made to a higher public prosecutor.

According to the law, a supervisory appeal has a special procedural status. That is why the law provides for courts that have the right to consider such submissions. According to Article 403 of the Criminal Procedure Code of the Russian Federation, supervisory representations can be brought by the prosecutor of the subject or the Prosecutor General of the Russian Federation.

Requirements and representations of the prosecutor in criminal cases: concept and differences

One of the participants in criminal proceedings is the prosecutor, who is entrusted with two main functions:

• supervision of compliance with laws when checking reports of crimes, investigating criminal cases, considering criminal cases by courts and during the execution of sentences and other court decisions;
• approval of the indictment (indictment, indictment, order on the application of compulsory measures of a medical or educational nature) and maintenance of the charge in court.

As part of the exercise of his powers, the prosecutor, when establishing facts of violation of the current legislation, issues and sends demands and representations to the head of the investigative body. Despite the fact that both of these forms of prosecutorial response are based on facts of violations of the law, they differ from each other in both regulatory regulation and purpose.

1. The prosecutor's demand in a criminal case is a form of prosecutorial response provided for by the Code of Criminal Procedure of the Russian Federation to violations of criminal procedural legislation during the investigation of a specific criminal case, expressed in a mandatory instruction addressed to the head of the investigative body to eliminate the violations committed. The grounds and procedure for the prosecutor to make demands in the field of criminal proceedings are regulated by the Criminal Procedure Code of the Russian Federation. The Law “On the Prosecutor's Office of the Russian Federation,” although it indicates the mandatory requirements of the prosecutor, does not identify the requirement as a separate form of prosecutorial response, meaning by requirement only an instrument for the prosecutor to demand the necessary information from officials, citizens and organizations.

The prosecutor sends demands to cancel the investigator's illegal or unfounded decision and eliminate other violations of federal legislation committed during pre-trial proceedings.

According to Art. 21 of the Code of Criminal Procedure of the Russian Federation, the requirements of the prosecutor within the limits of his powers are mandatory. Meanwhile, the demands of the prosecutor addressed to the head of the investigative body may not be fulfilled.

So, according to part 4 of Art. 39 of the Code of Criminal Procedure of the Russian Federation, the prosecutor’s demands are considered by the head of the investigative body within no later than 5 days. Based on the results of consideration of the request, two scenarios are possible, which depend on whether the head of the investigative agency agrees with the received request.

If the investigator investigating the criminal case, as well as the head of the investigative body, agrees with the essence of the prosecutor’s demands, then the identified violations are eliminated, and the head of the investigative body informs the prosecutor about the cancellation of the illegal or unfounded decision of the investigator and the elimination of the violations.

If the investigator investigating a criminal case does not agree with the received demand, then he is obliged to send written objections to the head of the investigative body (Article 38 of the Code of Criminal Procedure of the Russian Federation), which are brought to the attention of the prosecutor. According to paragraph 7 of part 2 of Art. 37 of the Code of Criminal Procedure of the Russian Federation, the prosecutor has the right to consider the investigator’s information about disagreement with the prosecutor’s demands presented by the head of the investigative body and make a decision on it.

If the head of the investigative body disagrees with the request, the latter issues a reasoned resolution of disagreement with the prosecutor’s demands, which is sent to the prosecutor within 5 days.

According to Part 6 of Art. 37 of the Code of Criminal Procedure of the Russian Federation, when the prosecutor receives a resolution from the head of the investigative body about disagreement with the demands of the prosecutor, the prosecutor has the right to appeal to the head of a higher investigative body up to the Chairman of the Investigative Committee, the head of the Investigation Department of the Ministry of Internal Affairs of the Russian Federation, the head of the Investigative Department of the FSB of the Russian Federation. Also, the prosecutor can appeal in such a case to the Prosecutor General of the Russian Federation, whose decision is final.

1. Prosecutor's presentation. The procedure for the prosecutor's submission is regulated by the Federal Law of the Russian Federation of January 17, 1992 N 2202-1 “On the Prosecutor's Office of the Russian Federation.”

The prosecutor's presentation in a criminal case is an act of prosecutorial response to identified violations of criminal procedural legislation that are systemic in nature, provided for by the Federal Law "On the Prosecutor's Office of the Russian Federation", addressed to the head of the investigative body and containing proposals both for eliminating violations of the law and the causes and conditions that contributed to the commission violations of the law, as well as to bring the perpetrators to justice. In a more general understanding, the prosecutor’s representation is provided for by the Federal Law “On the Prosecutor’s Office of the Russian Federation”, along with a protest, resolution and warning, one of the acts of the prosecutor’s response to identified violations of the law that occurred as a result of actions (inactions) or decisions made by government bodies and officials, which is formalized in writing. A proposal to eliminate violations of the law is submitted by the prosecutor or his deputy to the body or official who is authorized to eliminate the violations committed, and is subject to immediate consideration.

According to Art. 24 of the Federal Law “On the Prosecutor's Office of the Russian Federation”, within a month from the date of submission of the submission, specific measures must be taken to eliminate violations of the law, their causes and conditions conducive to them; the results of the measures taken must be reported to the prosecutor in writing.

The difference between the prosecutor's demand and the prosecutor's presentation in a criminal case.

Thus, within the framework of criminal proceedings, the main difference between the prosecutor’s demand and the prosecutor’s presentation is the following:

1. The prosecutor's request is made when violations are established within the framework of the investigation of a specific criminal case, consideration of a specific report of a crime and is aimed at canceling an illegal and unfounded procedural decision, eliminating specific violations, and taking specific actions to eliminate violations of the law. The submission is made when violations of a systemic, general nature are identified, for example, based on the results of violations identified during the investigation of several criminal cases, and is aimed not only at eliminating the violations, but also the causes and conditions that contributed to the occurrence of violations, as well as at attracting the perpetrators to responsibility.
2. The request of the prosecutor in a criminal case, the procedure for its consideration is regulated by the Code of Criminal Procedure of the Russian Federation, and the presentation is regulated by the Law “On the Prosecutor's Office of the Russian Federation”.
3. The period for consideration of the request and notification to the prosecutor about the results is 5 days, and the submission is subject to immediate consideration with notification to the prosecutor about the measures taken within one month.

Some statistics: at the end of 2021, Russian prosecutors sent 294,731 demands within the framework of criminal proceedings, and in 2021 – 316,820 demands. In 2021, 85,790 submissions were made, and in 2021 – 86,160. That is, 3.5 times more demands were sent than submissions were made.

Reply to the prosecutor

The response to the prosecutor's submission in the supervisory procedure can be either positive or negative. If the answer is positive, the case is considered and a certain decision is made, for example, to cancel the decision of the court in which the case was heard. In this case, the materials are sent for further investigation, if necessary, or an acquittal is rendered.

If the court's answer is negative, then further appeal occurs in the following order: the determinations of the presidiums of the courts of the constituent entities of the Russian Federation or the Judicial Collegium for Criminal Cases can be appealed in the supervisory order, as indicated earlier. Resolutions of the Presidium of the Supreme Court of the Russian Federation are not subject to appeal, except in cases of discovery of new circumstances.

Appeal against a decision in civil proceedings

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An appeal is a special form of appeal to the court of appeal, which is a higher authority that reviews the decisions of the courts of first instance.

If for any reason you are not satisfied with the court's decision, you will have to file an appeal.

Resolution submission

In addition to the proposal, which is submitted to the court and contains a set of violated norms, there is also a proposal from the prosecutor to eliminate the violations. The subject of this document may be violations of the law in various areas of public activity and contain requirements for bringing a person (or persons) to financial or disciplinary liability. The response to the submission must be sent in writing to the prosecutor who submitted the document for consideration by the competent authority.

How to properly file an appeal to the court?

The legislator of the Russian Federation does not establish specific requirements regarding the preparation of an appeal, other than mentioning that it must be submitted in writing. Therefore, its content should be based on the general points of office work and the requirements of Art. 322 Code of Civil Procedure of the Russian Federation. So, how to write an appeal or statement to the court correctly?

To do this you need:

1. In the header of the complaint, indicate: the name of the judicial body to which the appeal is being filed;
2. information about the court in which the appealed decision was made;
3. information about the appellant indicating his place of residence;
4. information about all participants in the process;
5. information on the decision of the judicial authority (date of adoption of the decision, its number, etc.).

Important!

Such a complaint must not contain syntactical, spelling or other errors. Remember that other parties may file an appeal, so clearly support your arguments.

The appeal submission is signed by the prosecutor.

In addition, a receipt must be attached to the appeal, if necessary. The number of photocopies of the appeal complete with attached documents must be equal to the number of participants in the case. It is noteworthy that the appeal cannot contain claims that were not previously stated to the court when considering the case.

Classification of representations

It is also worth highlighting, based on the above, that there is an illegal classification for this type of document, such as a presentation made by the prosecutor. There are supervisory and non-supervisory representations.

Non-supervisory documents are precisely those that are brought to the court office - appeal, cassation and by way of supervision.

Supervisory representations are related to the direct function of the prosecutor in exercising supervision and identifying facts of violation of laws. This applies primarily to officials employed in the public service.

Complaint about performance

You can file a complaint against any presentation of the prosecutor, if the case concerns individuals or legal entities and is being considered in court.

If the prosecutor does not agree with the ruling or decision of the court and asks to tighten the punishment or increase the fine of an already convicted person, this person has the right to file a complaint with the same court as the prosecutor - the appellate or cassation instance. In any case, the convicted person can raise objections that are based only on the provisions of the law, in writing, independently or with the help of third parties.

Submitting objections

When the prosecutor submits a presentation, other participants in the case may submit their own objections in response to it. Verbal disagreements are documented in writing.

It is important to submit them within the deadline set by the court. It is prescribed in the judicial notice along with the procedure and rights of citizens. A copy of the submission is sent along with it.

A set of documents is sent to each of the parties: the suspect, the accused. If they are in custody, the papers are received at the place of execution of the preventive measure.

Lawyers and representatives also have the right to file an objection. They are sent copies of the document.

What is written in the document

The objection notes:

• name of the court to which and through which the appeal is submitted;
• information about the person submitting the document (full name, procedural status, place of residence, contact information);
• circumstances of the criminal case;
• the decision being appealed;
• date of preparation of the submission, information about the person who sent it;
• grounds for objection;
• disagreement with the justifications of the prosecutor's office;
• date and signature.

It is important to adhere to the same points and order of presentation of events that are present in the presentation. Each reason must be clearly stated. Even if you file an objection, you can prepare an appeal. Documents can complement each other.

There is no need to prepare an objection if the party agrees with the position of the prosecutor's office. But at the same time he insists that the decision is too lenient. Likewise, there is no need to formulate an objection when expressing the opinion that a position is too harsh.

Protest and performance

In current legislation, protest and representation are defined in different articles, but the second term is increasingly used, although the functions of these documents are different. In order not to get confused in the variety of procedural documents that the prosecutor can introduce and declare, it is necessary to accurately establish the meaning of these terms.

Representation, as stated earlier, is the prosecutor’s act of responding to violations. This concept has begun to be used much more often in court hearings. Protest involves strong disagreement with something. And such an approach would be considered contempt of court. Therefore, the term representation - as more democratic - began to be used in most cases.

However, if a protest is a statement about a violation of a single norm of the law, then the proposal submitted by the prosecutor is a complex document. Its subject is several violations of provisions in the law that need to be eliminated or certain persons held accountable.

It should also be noted that all these documents must be considered regardless of what decision is planned to be made. It is unacceptable to voice a refusal to the prosecutor to take measures to eliminate violations if there are no grounds for this.

How to appeal a court decision

It happens that the judge made a decision that did not sufficiently satisfy our claims, or this decision was not at all in our favor. One way or another, we do not agree with the decision made and want it to be changed or canceled and a different decision on the case made. To do this, we need to appeal this court decision to a higher court before the court decision enters into legal force. If you don't know when a court decision comes into force, find out in this article.

What does it mean to appeal a court decision? This means filing an appeal to a higher (appeal) court against a court decision with which you do not agree.

A “court of appeal” or “court of appeal” is a court of second instance.

Contents of the presentation

The information that each prosecutor's submission must contain is quite typical for a court order. However, the need to enter information is determined by the practical significance of this document:

1. Name of the court.
2. The name of the person submitting the representation (prosecutor) and the procedural position (state prosecutor).
3. An indication of which court decision is being appealed or which the prosecutor does not agree with.
4. Prosecutor's requirements.
5. Reasons why the prosecutor believes the decision is wrong.
6. List of documents and evidence that may be attached to the submission.

You can see what the prosecutor’s submission (a sample is given as an example) to eliminate violations in the penal legislation looks like in the photo below.

Thus, the prosecutor, fulfilling his direct duties, must not only identify facts of incorrect application of the law or violation of its norms, but is also obliged to demand any information related to the case and give instructions to eliminate the violation.

With changes in the criminal procedure code, which occurred first in 2007 and then in 2014, the prosecutor was somewhat limited in his powers, but this gave him the right to take the position of an observer and become a disinterested party in any case.

Contents of the document

The criteria for the form and content of the submission are reflected in Article 389.6 of the Code of Criminal Procedure of the Russian Federation. Prosecutor's office employees use a standard form developed at the level of a government agency.

The document must indicate several points:

1. Name of the judicial authority to which the appeal is sent.
2. Personal data of the citizen who submits the appeal, his procedural status, residential address.
3. Details of the court decision, information about the body that issued it.
4. Arguments of the person, reasons for updating the decision.
5. List of attached documents.
6. Citizen's signature.

The applicant may request that the appellate court consider evidence that has already been previously examined by the court. If there are those that were not considered, the reason for the impossibility of transferring them at the first meeting is described.