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.

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.

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:

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.
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”.
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.

Who doesn't have this right?

There are groups of persons who take part in the proceedings of a criminal case, but do not have the right to perform actions aimed at initiating it. Here you can specify persons such as:

duty officers who receive complaints from victims;
detectives carrying out direct investigative activities;
private prosecutors and lawyers of the injured person;
judges who do not have such powers.

Thus, it can be noted that the law establishes a strictly regulated range of persons who have the right to initiate legal proceedings if there are specific grounds.

Grounds for refusal

Upon receiving a report of a crime being committed or preparation for it, officials must conduct an investigation to determine the presence or absence of grounds for initiation. If there are no grounds, then a decision must be made to refuse initiation. The grounds for refusal are listed in Article 24 of the Code of Criminal Procedure. They are:

there is no fact of committing a crime;
there is no corpus delicti;
the statute of limitations has expired;
the accused or suspect has died. The exception is cases when rehabilitation of the deceased is required;
There is no statement from the victim.

When the case ends, the persecution ends. A copy of the refusal to initiate proceedings must be sent to the prosecutor and the applicant no later than 24 hours. In accordance with Russian legislation, the applicant has the right to appeal the refusal in various instances. The complaint can be submitted to the leadership of the investigative body, the prosecutor or the judge. This possibility is regulated by Articles 125 and 124 of the Code of Criminal Procedure of the Russian Federation.

Main conclusions

A document requesting to initiate a criminal case must be drawn up only if the applicant is absolutely sure of the guilt of a certain individual;
The structure of the document is standard - “header”, main part and details;
The applicant must indicate that he is aware of giving false testimony on the basis of Article 306 of the Criminal Code of the Russian Federation;
The text of the document indicates the circumstances under which the violation of criminal norms was committed, the place where it occurred, as well as the time;
The applicant must have evidence confirming that the text he wrote is not unfounded.

Reasons for excitement

Initiation of a criminal case as a stage of the criminal process is an integral, priority part of a set of measures aimed at restoring justice, in particular punishing those guilty of committing illegal actions dangerous to society. Having understood that the first stage is the initiation of a criminal case, it is necessary to consider in detail the reasons for the execution of this action by the responsible persons.

Such reasons include sources of information about the commission of illegal actions. They are perceived by the law as a legal fact. According to Article 140 of the Code of Criminal Procedure of the Russian Federation, there are only 4 reasons:

a statement about the commission of a crime or its preparation;
confession of the person who committed the criminal act;
a message about the commission of illegal actions received from any other sources;
resolution of a prosecutor's office to send materials to the competent authorities to resolve the issue of possible prosecution.

The initiation of a criminal case in the Code of Criminal Procedure of the Russian Federation is given quite a lot of importance. In this regard, it is necessary to consider all possible reasons in more detail.

Statement about the commission of a crime or its preparation

Allegation of illegal actions is the most common reason. This action means notifying the competent authorities about the commission of illegal actions, regardless of whether the applicant was injured or not. The application can be made either orally or in writing. The written application must be signed by the applicant.

An oral statement about the commission of illegal actions or preparation for their implementation is recorded in the protocol, which must be signed by the applicant and the person who received the message. In addition, the protocol must contain information about the applicant, confirmed by an identification document.

A person who decides to report the commission of a crime or preparation for it is warned in advance that, according to Article 306 of the Criminal Code of the Russian Federation, a false denunciation is also an illegal act. This information is recorded in the document and confirmed by the signature of the applicant.

It should be noted that criminal acts can also be reported anonymously. Such a statement is not a cause for concern. In such a situation, only verification of information received anonymously is allowed.

Confession

Such a reason is a person’s confession to a responsible law enforcement officer that he has committed illegal actions. Confession is characterized by the presence of two mandatory features:

voluntariness;
indication of their criminal acts.

A confession can be made orally or in writing. The oral statement is recorded in the protocol in accordance with the standards established by Part 3 of Article 141 of the Code of Criminal Procedure.

Reporting illegal activities

This reason is various information about illegal acts that was obtained by officials in the process of performing their official functions. This type of reason includes reports in the media and other sources about a crime that has already occurred or is just being prepared.

Such messages are not addressed to competent employees of the inquiry or investigative bodies. However, they must be checked to ensure that the information they contain is accurate. The official who discovers signs of a crime must draw up a report. This document serves as the basis for initiating proceedings. This issue is regulated by Article 143 of the Code of Criminal Procedure.