Criminal prosecution- procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime. The concept of "criminal prosecution" is one of the main concepts in criminal procedure law.
Depending on the nature and severity committed crime criminal prosecution, including prosecution in court, is carried out in a public, private-public and private manner. Part 1 of Art. 20 of the Criminal Procedure Code of the Russian Federation.
The concept of "criminal prosecution" is present in the 1960 Code of Criminal Procedure of the RSFSR, but its definition was first given in the Code of Criminal Procedure of the Russian Federation in 2001. Criminal prosecution is part of the criminal process, along with the procedural activities of the defense and the court. The prosecutor, investigator, head of the investigation department, body of inquiry, head of the inquest unit, investigator, as well as the victim, legal representative of the victim, private prosecutor can carry out criminal prosecution (be subjects of criminal prosecution) under Russian law. Criminal prosecution can only be carried out against natural person... Criminal prosecution is carried out at the stage preliminary investigation in the form of an inquiry or preliminary investigation and in the indictment.
Types of criminal prosecution
Criminal prosecution in privately
- h. 1 tbsp. 115 of the Criminal Code of the Russian Federation (intentional infliction of minor harm to health);
- h. 1 tbsp. 116 of the Criminal Code of the Russian Federation (beatings);
- h. 1 tbsp. 128.1. The Criminal Code of the Russian Federation (libel) Introduced by the Federal Law of the Russian Federation of July 28, 2012 N 141-FZ "On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation"
Criminal cases of private prosecution are initiated only at the request of the victim, his legal representative... The exceptions are cases when a crime was committed against a person who, due to a dependent or helpless state or for other reasons, cannot protect his rights and legitimate interests, as well as the commission of a crime by a person whose details are unknown. Cases of private prosecution are subject to unconditional termination in the event of reconciliation of the parties, while reconciliation is possible up to the moment the court is removed to the deliberation room for a verdict.
Criminal prosecution in private publicly carried out in cases provided for:
- h. 1 tbsp. 131 of the Criminal Code of the Russian Federation (rape);
- h. 1 tbsp. 132 of the Criminal Code of the Russian Federation (violent acts of a sexual nature);
- h. 1 tbsp. 137 of the Criminal Code of the Russian Federation (violation of the inviolability privacy);
- h. 1 tbsp. 138 of the Criminal Code of the Russian Federation (violation of secrecy of correspondence, telephone, telegraph, postal or other messages);
- h. 1 tbsp. 139 of the Criminal Code of the Russian Federation (violation of the inviolability of the home);
- Art. 145 of the Criminal Code of the Russian Federation (unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three);
- h. 1 tbsp. 146 of the Criminal Code of the Russian Federation (violation of copyright and related rights);
- h. 1 tbsp. 147 of the Criminal Code of the Russian Federation (violation of invention and patent rights).
Private-public prosecution cases are also initiated only at the request of the victim or his legal representative (with the same exceptions as in private prosecution cases).
It should be borne in mind that criminal prosecution in private and private-public order is carried out on unqualified (without aggravating circumstances) corpus delicti. For example, beatings are prosecuted in private, but the same acts motivated by racial hatred are already prosecuted in public. All other cases are prosecuted in publicly.
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See what "Criminal Prosecution" is in other dictionaries:
Criminal prosecution- 55) criminal prosecution - procedural activities carried out by the prosecution in order to expose a suspect accused of committing a crime; ... Source: Criminal procedural code Russian Federation dated 18.12.2001 N ... Official terminology
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Books
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- Criminal prosecution in pre-trial proceedings, criminal procedural and supervisory aspects of the prosecutor's activities, V. Kryukov. The monograph reveals the conceptual issues of the fundamental criminal procedural institution - the criminal prosecution of persons who have committed crimes, and the role of the prosecutor in ensuring it. ...
All of us, at least once in our life, commit an offense that falls under the category of offenses. Surely there is no driver who never breaks the rules. road traffic(especially when he thinks that no one sees him), most of us at least once drove to public transport without a ticket, crossed the road at a red traffic light or in the wrong place... There are many such examples. They are certainly frowned upon. But, being prohibited by law, such offenses still do not cause much harm to citizens and society, and the amount of punishments for them, established by the Code of Administrative Offenses, is usually small.
But there are a number of acts that are so socially dangerous that they are directly prohibited by the Criminal Code under threat of punishment. Such acts are called crimes.
Why do people break the law? Most likely, no one can give an exhaustive answer to this question. For some, the guide to action would be selfish motive, someone commits a crime out of revenge. There are crimes that are committed through negligence, through criminal negligence or arrogance. It happens that a person is pushed to a crime by a difficult confluence of life circumstances, when it seems to him that, for example, theft is the only way out of this situation. And, of course, one cannot deny the fact that for a certain category of people, criminal activity is a way of life.
The common phrase that there is no crime without punishment is hardly applicable in criminal law and criminal procedure. This phrase rather comes from religion, from the life experience of many generations of people. Statistics show that a significant number of officially registered crimes have not been disclosed, not to mention the so-called latent (hidden) crime, which is not subject to any registration. If the bribe-taker and the bribe-giver are silent, we will never know that at a certain time in a certain place two criminal acts were committed - giving a bribe and receiving it. There are many such examples.
Folk wisdom is right about one thing: do not excuse yourself from prison and money. Practice shows that crimes are committed not only by marginal elements and that the guilty party is not always punished for what they have done.
What to do if a criminal prosecution machine starts working against you or your loved ones, you are detained on suspicion of committing a crime? The first thing to do, if possible, is to invite a qualified defense attorney. The sooner you do this, the more effectively you can defend your legal rights... How to behave if you do not have the funds for qualified legal assistance will be discussed in the following chapters. But before moving on to practical comments, it is necessary to understand what criminal prosecution is and who implements it.
Criminal prosecution is a procedural activity that is carried out by the prosecution in order to expose a suspect accused of committing a crime.
Criminal prosecution includes bringing an accusation or suspicion, substantiating it with evidence, presenting or changing a charge, completing a criminal case with an indictment, confirming it by a prosecutor and sending it to court. In court, criminal prosecution is carried out by maintaining public or private prosecution, as well as appellate or cassation appeal of the verdict, if the prosecution does not agree with it and intends to continue the criminal prosecution in accordance with the previously taken position.
Depending on the nature and severity of the crime committed, criminal prosecution can be public, private-public and private.
Clients of lawyers and their relatives often ask the same question: if the victim in the case withdraws his application, is the criminal case subject to termination in this case? Quite often they have to disappoint them, since the termination of criminal prosecution in connection with the reconciliation of the accused with the victim is possible only in cases of private prosecution. These include: intentional inflicting lung harm to health (Art. 115 of the Criminal Code), beatings (Art. 116 of the Criminal Code), libel in the absence of qualifying signs (part 1 of Art. 129 of the Criminal Code) and insult (Art. 130 of the Criminal Code). Such criminal cases are initiated only at the request of the victim or his legal representative and are subject to termination in connection with the reconciliation of the victim with the accused. The magistrate has jurisdiction over these cases. Reconciliation is allowed at any stage of criminal proceedings, but before the court is removed to the deliberation room for a verdict. If the reconciliation is late, the magistrate will be obliged to issue a verdict on a general basis.
The following are referred to as cases of private-public prosecution: rape (part 1 of article 131 of the Criminal Code), violent acts of a sexual nature (part 1 of article 132 of the Criminal Code), violation of the equality of citizens (part 1 of article 136 of the Criminal Code), violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages (part 1 of article 138 of the Criminal Code), violation of the inviolability of the home (part 1 of article 139 of the Criminal Code), unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children of age up to three years (Art. 145 of the Criminal Code), violation of copyright and related rights (part 1 of Art. 146 of the Criminal Code) and violation of inventive and patent rights (part 1 of Art. 147 of the Criminal Code).
Cases of a private-public prosecution (as well as cases of a private prosecution) are initiated only on the basis of a complaint by the victim, but are no longer subject to termination in connection with the reconciliation of the victim with the accused. Exceptions are the cases provided for in Art. 25 of the Code of Criminal Procedure, which provides for the possibility of terminating a criminal case in connection with the reconciliation of the parties. Such reconciliation is possible in the following cases:
If there is a statement from the victim or his legal representative;
If the act committed by the person against whom the criminal prosecution is being carried out falls into the category of minor offenses or moderate;
The crime was committed by a person for the first time;
The person against whom the criminal prosecution is being carried out made amends for the harm caused to the victim;
A reconciliation took place between the victim and the person against whom the criminal prosecution is being carried out.
At the same time, the prosecutor, as well as the investigator or interrogator, with the consent of the prosecutor, have the right to initiate a criminal case on any crime of private or private-public prosecution and in the absence of a complaint from the victim, if this crime was committed against a person who is in a dependent position or for other reasons. unable to independently exercise his rights (part 4 of article 20 of the Criminal Procedure Code).
All other criminal cases are considered public prosecution cases. The prosecution of a person guilty of such crimes is public. This means that it is carried out by state bodies and on behalf of the state, and not so much in the interests of the victim as in the interests of the state and society as a whole. Therefore, when making decisions on a public prosecution criminal case, including a decision to terminate a criminal case, the investigator, inquirer or prosecutor are not related to the position of the victim.
Criminal prosecution on behalf of the state in criminal cases of public and private-public prosecution is carried out by the prosecutor, as well as the investigator and interrogator (part 3 of article 21 of the CCP). Therefore, it is always necessary to remember that no matter how kind and understanding an investigator or interrogator carrying out criminal proceedings may seem to you, he was, is and will be only a party to the prosecution.
As part of their obligation to carry out criminal prosecution, the said persons, in each case of detection of signs of a crime, take prescribed by law measures to establish the event of a crime, to expose the person or persons guilty of committing it. Thus, most of the criminal cases are initiated and investigated due to the duty of the authorities that carry out the criminal prosecution, and not at the discretion of the injured party.
The Criminal Code and the Criminal Procedure Code stipulate a number of circumstances, in the presence of which a criminal case is not initiated, and an already initiated criminal case is subject to termination. The grounds for refusal to initiate a criminal case or its termination are set out in Art. 24 of the Criminal Procedure Code. Such grounds include the following.
1. The absence of a crime event, that is, the absence of the act itself, which was assumed to have taken place (for example, there was no transfer of money, which was supposedly regarded as giving a bribe). By virtue of the presumption of innocence, the absence of a crime event is legally equated with situations when unsolvable doubts remain about the existence of a crime that appeared in the reason for initiating a criminal case. Such doubts shall be interpreted in favor of the accused. Therefore, the formulations “failure to establish a crime event” and “absence of a crime event” are identical in this case.
2. Absence of corpus delicti in the act. In this case, it is meant that the act itself took place, but it does not contain all the mandatory signs of a crime. For example, if in a criminal case initiated in connection with an accident in which a pedestrian died, despite all the measures taken, it was not possible to establish whether the driver had the technical ability to avoid a collision, in other words, whether there are necessary signs in his actions subjective side corpus delicti, such a case shall be terminated due to the absence of corpus delicti in the act. On the same basis, criminal cases are subject to termination, the subjects of which are persons who have not reached the age of criminal liability, that is, 16 years (in some categories - 14 years).
3. Expiration of the statute of limitations for criminal prosecution. This basis for refusal is based on the principle of humanism, which is that criminal prosecution cannot forever hang with the sword of Damocles over the culprit. The criminal law establishes the statute of limitations for criminal prosecution, which differ depending on the severity of the crime committed. When deciding whether the statute of limitations has expired and whether on this basis it is not necessary to refuse to initiate a criminal case or to terminate the initiated criminal case, it is necessary to be guided by Art. 78 of the Criminal Code.
4. Death of a suspect or accused. This ground entails a refusal to initiate a criminal case or its termination, except for cases when the interested persons, being sure of the person's innocence, petition for the continuation of the proceedings in order to rehabilitate and restore the good name of the deceased. In this case, the proceedings on the case should be continued as usual.
5. The absence of a victim's statement serves as a ground for refusal to initiate a criminal case or its termination in cases of private and private-public prosecution, when it is impossible to initiate a criminal case without a victim's statement.
6. Special procedure for bringing to criminal responsibility selected categories persons. We are talking about judges, deputies, prosecutors, lawyers, some civil servants, the exact list of which is contained in Art. 447 of the Criminal Procedure Code. To carry out the criminal prosecution of these persons, a special judgment(conclusion), as well as the consent of the bodies specified in the law (Federation Council, State Duma Federal Assembly RF, The Constitutional Court RF, qualification board of judges). Failure to do so precludes criminal prosecution against these individuals, leaving the question of their guilt or innocence open.
A criminal case shall be terminated due to the absence of corpus delicti in the act if, prior to the entry into force of the verdict, the criminality and punishability of this act were eliminated by the new criminal law. For example, in the late 80s - early 90s, crimes such as speculation and illegal currency transactions were decriminalized, and the initiated criminal cases were stopped, since the actions of the perpetrators were no longer considered crimes.
Termination of a criminal case simultaneously entails a complete termination of criminal prosecution (part 3, article 24 of the Criminal Procedure Code).
In accordance with Art. 25 of the Code of Criminal Procedure (it was mentioned a little above), the court, the prosecutor, as well as the investigator and the interrogating officer, with the consent of the prosecutor, have the right, on the basis of the application of the victim or his legal representative, to terminate a criminal case against a person suspected or accused of committing a crime of minor or medium gravity, in cases provided for by Art. 76 of the Criminal Code, if this person has reconciled with the victim and made amends for the harm caused to him. One of the main conditions for the termination of a criminal case on this basis is the commission of a crime of small (maximum punishment for which does not exceed two years in prison) or medium (maximum punishment does not exceed five years in prison) gravity. Termination of a criminal case due to the reconciliation of the parties is not a mandatory outcome of this case, even if all the conditions required by law are met. The court, the prosecutor, the investigator, the inquirer have the right to terminate the case, but they also have the right to send it to the court for consideration in the usual manner. In any case, such a decision must be motivated, and the motivation can be different, ranging from doubts about the voluntary nature of reconciliation and ending with a clearly expressed desire of the victim to cash in on the termination of the criminal case.
Article 26 of the Code of Criminal Procedure vests the court, the prosecutor, the investigator and the inquirer with the authority to terminate the criminal case due to a change in the situation. The term "change in the situation" is not defined by law, but it usually refers to an offensive in the life of a society, a group of the population, of this person such conditions that significantly change the idea of public danger of the act or person and provide an opportunity not to apply to this person criminal penalty... For example, in cases where a person ceases to be socially dangerous, one can include conscription into the army, socially useful actions (rescuing drowning people or property in a fire, actions aimed at arresting a criminal, etc.). Termination of a criminal case on this basis is allowed:
If the crime is classified as minor or moderate;
The crime was committed by this person for the first time, which means that he has no conviction for a previously committed crime or a criminal case initiated against him related to the commission of another crime;
The person himself does not object to the termination of the case on this basis;
There is the consent of the prosecutor if the decision to terminate the criminal case is made by the investigator (interrogator).
Prior to the termination of the criminal case, the person must be explained the appropriate basis for this and the right to object to the termination of the case on this basis.
Article 27 of the CCP provides a list of grounds for terminating criminal prosecution. It should be noted that the termination of criminal prosecution does not always mean the termination of the criminal case. For example, during the investigation of a murder, it turned out that the suspect against whom the criminal prosecution was carried out was not involved in the commission of this crime. The investigator issued an order to terminate the criminal prosecution against this person, and the criminal case continues to be investigated in established order, since it is necessary to establish the person to be held criminally liable for the murder.
The criminal prosecution against the suspect or the accused shall be terminated:
Due to the non-involvement of the suspect or the accused in the commission of the crime. (This is demonstrated in the example above.) Non-involvement in the commission of a crime means that the crime was committed not by the person who was prosecuted, but by another person. For the termination of criminal prosecution on this basis, it does not matter whether it has been proven that the crime was committed by someone else, or whether the investigation has exhausted all the possibilities of proving the involvement of this person in the commission of the crime. In this case, the legal wording applies, which states that unproven guilt is tantamount to proven innocence;
Termination of the criminal case as a whole;
Amnesty Act. Amnesty is an act supreme body state power (according to the Constitution, amnesty is announced by the lower house of the Federal Assembly of the Russian Federation - The State Duma) in relation to an individually indefinite circle of persons. The amnesty does not abolish the criminal law that punishes this crime, however, it may order the replacement of the punishment imposed by the court with another, milder one, or even terminate the criminal prosecution altogether;
The existence of a valid sentence against the suspect or the accused on the same charge, or a ruling by the court or judge to terminate the criminal case on the same charge;
The presence of an uncancelled decision of the body of inquiry, investigator or prosecutor against the suspect or the accused to terminate the criminal case on the same charge or to refuse to initiate a criminal case.
The last two positions of this list are based on the provision that no one can be held responsible twice for the same crime. Article 15 of the International Covenant on Civil and Political Rights states: "No one should be tried or punished again for a crime for which he has already been finally convicted or acquitted in accordance with the law and criminal procedure law of each country."
Due to the lack of corpus delicti, criminal prosecution is also terminated against a minor, who, although he reached the age at which criminal responsibility occurs, but due to mental retardation not associated with a mental disorder, could not fully understand public danger and the nature of their actions and to direct them (the so-called limited sanity). When deciding on the termination of criminal prosecution on this basis, as a rule, a conclusion of a psychological and psychiatric examination is required.
Article 28 of the Code of Criminal Procedure provides for the possibility of terminating criminal prosecution in connection with active repentance, the meaning of which is that a person who first committed a crime of small or medium gravity, voluntarily confessed, contributed to the disclosure of the crime, compensated for the damage caused or otherwise made amends for the damage caused as a result of a crime, for example, carried out a search for property obtained as a result of a crime, provided medical or other assistance to the victim immediately after the crime was committed. The court, the prosecutor, as well as the investigator and the interrogator, with the consent of the prosecutor, have the right to terminate the criminal prosecution on this basis. Before the termination of the criminal prosecution, the person must be explained the grounds for this and the right to object to the termination of the criminal prosecution. If there is such an objection, the criminal prosecution cannot be terminated, and the proceedings on the case must be continued at the will of the suspect or the accused up to judicial trial, where the defendant receives the most favorable conditions for protection from the charge brought against him and may well achieve his rehabilitation.
Criminal prosecution is a procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime.
This activity is carried out by the participants in the criminal proceedings on the part of the prosecution - the prosecutor, the investigator, the head of the investigative body, the head of the inquiry unit, the interrogator, the private prosecutor, his representative, the victim, his legal representative and representative, the civil plaintiff and his representative.
However, the nature of their activities, the scope of the powers granted and the means of implementing the function of criminal prosecution are different depending on the nature and severity of the crime committed, the stage of criminal proceedings, and internal conviction.
The criminal procedural legislation names three independent types of criminal prosecution: public, private-public and private (Article 20 of the Criminal Procedure Code). The criterion for dividing criminal prosecution into types is the nature and severity of the crime committed.
Cases of private prosecution - cases of crimes under Part 1 of Art. 115 (intentional infliction easy harm health without aggravating circumstances), Part 1 of Art. 116 (beatings without aggravating circumstances), part 1 of Art. 129 (defamation without aggravating circumstances) and Art. 130 (insult) of the Criminal Code, which are instituted only at the request of the victim, his legal representative and are subject to termination in connection with the reconciliation of the victim with the accused, which is allowed before the court is removed to the deliberation room for a verdict.
Cases of private-public prosecution - cases of crimes under Part 1 of Art. 131 (rape committed without aggravating circumstances), Part 1 of Art. 132 (violent acts of a sexual nature, committed without aggravating circumstances), part 1 of art. 136 (violation of equality of human and civil rights and freedoms, committed without aggravating circumstances), part 1 of Art. 137 (violation of the inviolability of private life, committed without aggravating circumstances), Part 1 of Art. 138 (violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages, committed without aggravating circumstances), part 1 of Art. 139 (violation of the inviolability of the home, committed without aggravating circumstances), Art. 145 (unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three), part 1 of Art. 146 (violation of copyright and related rights, committed without aggravating circumstances) and Part 1 of Art. 147 (non-aggravating infringement of inventive and patent rights) of the Criminal Code.
They are initiated only at the request of the victim or his legal representative, but they are not subject to termination in connection with the reconciliation of the victim with the accused. However, the exception is the rule provided for in Art. 25 of the Code of Criminal Procedure, according to which the court, as well as the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor, have the right, on the basis of the application of the victim or his legal representative, to terminate a criminal case against a person suspected or accused of committing a crime of small or medium gravity, if the crime has been committed for the first time, and the person reconciled with the victim and made amends for the harm caused to him.
Proceedings in such cases are carried out in general order provided by the criminal procedure legislation.
The tendency to strengthen the dispositiveness of criminal proceedings is reflected in relation to the institution of criminal prosecution. Compared to the previous criminal procedure legislation (Criminal Procedure Code of the RSFSR, 1960), the range of cases of private-public prosecution was expanded, the possibility of initiating a criminal case of a private and private-public prosecution appeared not only for the victims, but also for their legal representatives.
The expansion of private principles of criminal proceedings corresponds to the spirit and tasks of modern Russian criminal procedure legislation, since the CPC is focused, first of all, not on the complete and rapid disclosure of crimes, but on the protection of the rights and legitimate interests of persons and organizations who have been victims of crimes.
At the same time, the protection of human rights and freedoms in the Russian Federation is not only a private matter of the individual, but is provided by the state. Therefore, criminal cases of private and private-public prosecution in a number of cases can be initiated officials(by the investigator, as well as by the inquirer with the consent of the prosecutor) and in the absence of a statement from the victim and his legal representative. These are cases of a crime committed against a person who, due to a dependent or helpless state, or for other reasons, cannot protect his rights and legitimate interests, as well as cases of a crime committed by a person whose details are not known.
Criminal prosecution in these cases is carried out regardless of the will of the victim. Criminal cases initiated in this way acquire a public character, and the criminal prosecution on them is carried out in public.
In this case, the implementation of criminal prosecution in cases of private and private-public prosecution in public does not contradict the objectives of criminal proceedings, it should not be considered as a manifestation of priority state interests over private in criminal proceedings. We are talking about the protection of the legally protected interests of the victim, who, being in a helpless state, or for other reasons, cannot independently exercise his rights. In this case, the investigator and the interrogator defend on behalf of the state the interests of a person in need of additional protection from the state.
All other criminal cases that do not belong to the categories of cases of private and private-public prosecution are considered criminal cases of public prosecution.
Due to the public nature of Russian criminal proceedings, criminal prosecution on behalf of the state in criminal cases of public and private-public prosecution is carried out by the prosecutor, as well as by the investigator and interrogator.
In each case of detection of signs of a crime, the prosecutor, investigator, body of inquiry and interrogator, guided by the principle of legality, take measures provided by law to establish the event of a crime, to expose the person or persons guilty of committing the crime.
The duties of establishing the event of a crime, exposing the persons guilty of committing a crime, assigned to the prosecutor, the investigator and the interrogating officer, can be properly performed by them only if these persons have a number of powers. Legal status the prosecutor, the investigator, the inquirer are regulated by Art. 37, 38, 41 of the Criminal Procedure Code. In addition, the law establishes that the requirements, instructions and requests of the prosecutor, the head of the investigative body, the investigator, the body of inquiry and the interrogator, presented within the limits of their powers established by the Criminal Procedure Code, are binding on all institutions, enterprises, organizations, officials and citizens.
Criminal prosecution - procedural activities carried out by the prosecution in order to expose a suspect accused of committing a crime (clause 55, article 5 of the Criminal Procedure Code of the Russian Federation).
However, the legislator in the RF Criminal Procedure Code designated criminal prosecution both as an activity (clause 55 of Article 5 of the RF CPC) and as a procedural function within the framework of the “principle” of adversariality (Article 15 of the RF CPC).
At the same time, it seems obvious that
- procedural function accusation, like its opposite defense function, is limited procedural status the person or body performing it, as well as the person in relation (in the interests) of whom it is carried out, while
- procedural activity according to the identity of the person who committed the crime, in other words, criminal prosecution is carried out regardless of whether the figure of the suspect or the accused has appeared on the legal horizon or not.
Thus, criminal prosecution represents a state-power, public, organizing procedural activity of competent state bodies and officials to establish the event of a crime, to expose the person or persons guilty of committing a crime, as well as to establish other factual circumstances of the case, their legal assessment and the issuance of relevant acts of criminal proceedings containing the wording of the accusation addressed to specific participants in the criminal proceedings and the justification for it before the court.
Criminal prosecution is aimed at solving the general tasks of all criminal proceedings in order to achieve its goal. The initial, or primary, in this case is the very fact of the commission of a criminal act, which makes it possible to assert that criminal prosecution begins from the moment a criminal case is initiated both upon the discovery of a crime event and in relation to a specific person.
As a rule, criminal prosecution is carried out by the prosecutor, investigation and inquiry bodies.
Based on the foregoing, criminal prosecution as a procedural activity includes:
- actions of the investigation and inquiry bodies, consisting in the collection of only incriminating evidence, the use of coercive measures to ensure the exposure of a person and the application of punishment to him;
- actions of public prosecutors, which are aimed at substantiating the accusation brought before the court, to convince the court on the basis of a combination of both incriminating and justifying evidence of the guilt of the accused and the need to apply an appropriate punishment to him.
At the same time, maintaining the state prosecution in court is only an integral part of the criminal prosecution.
Typical signs of criminal prosecution:
- procedural activity(carried out in the forms provided for by the criminal procedural law);
- carried out competent state authorities and officials (only they have the right and are obliged to establish the factual circumstances of the case, give them a legal assessment and make appropriate decisions on the case);
- the content of this activity is to take action on establishing the event of a crime, exposing the person or persons guilty of committing a crime, as well as in passing the relevant acts of criminal proceedings addressed to specific participants in criminal procedural activities and containing the wording of the charge;
- is of a state-imperious, public nature, since it is ensured by the coercive power of the state;
- is an the main driving force behind the criminal process, which organizes the entire process for a specific criminal case and determines the content and direction of the proceedings on it.
Law enforcement features and stages of criminal prosecution
Prosecution activities as law enforcement is a kind of process, which is the commission of a competent government agency and the official required ( established by the norms rights) actions.
Speaking about this activity as a process, one cannot avoid considering the issue of the content of this process, which develops in a certain sequence. Given the homogeneity of the actions performed, the goals pursued by them, as well as their relative isolation in time, we can talk about the stages of criminal prosecution. At the same time, the sequence of the transition from one stage of the proceedings to another in the implementation of criminal prosecution is relative, since after the exposure of the person or persons guilty of the crime, as well as after the establishment of the factual circumstances of the case, their legal assessment by the investigator may it becomes necessary to return to the establishment of the circumstances of the case, to carry out any investigative or other procedural actions. In the same way, when making a decision on a case, for example, on the formulation of the charge brought against, the investigator is often forced to return to the establishment of the factual circumstances of the case and their legal assessment. But, despite the interpenetration and interdependence of these actions, the activities for the implementation of criminal prosecution are characterized by stages.
Initiation and termination of criminal prosecution
By general rule, criminal prosecution
- starts from the moment a criminal case is initiated and
- ends with the onset (release from) criminal liability, when the court, on behalf of the state, finds a person guilty of a crime in a conviction that has entered into force or is innocent of acquittal, or by applying to to the specified person compulsory measures of a medical nature or educational influence.
At the same time, there are exceptions from the above rule regarding the termination of criminal prosecution, namely:
- the termination of a criminal case entails at the same time the termination of criminal prosecution (part 3 of article 24 of the Code of Criminal Procedure of the Russian Federation); at the same time, the criminal case is subject to termination in the event of the termination of criminal prosecution against all suspects or accused, with the exception of cases of establishing the person's innocence in the commission of a crime (paragraph 20 of article 5 of the Code of Criminal Procedure of the Russian Federation);
- criminal prosecution is terminated upon re-qualification of the act committed by the perpetrator (Article 175 of the Code of Criminal Procedure of the Russian Federation); re-qualification of an act (crime) means a change or addition to the charge or the termination of criminal prosecution in the relevant part of the charge of a crime;
- the actual termination of criminal prosecution (Article 27 of the Code of Criminal Procedure of the Russian Federation) - if the grounds for termination of criminal prosecution do not apply to all suspects or accused in a criminal case, then the investigator issues a resolution to terminate the criminal prosecution against a specific person. At the same time, the criminal proceedings continue.
Types of criminal prosecution
The public procedure for criminal prosecution is most consistent with the main goals and characteristics of criminal proceedings - its objectivity and independence from individuals. The legislator defines this procedure as general(part 3 of article 147 of the Code of Criminal Procedure of the Russian Federation).
Private procedure for criminal prosecution
Implementation of criminal prosecution privately based on a dispositive beginning, meaning the greatest influence of the position of the parties on the final decision on the case.
Private prosecution cases:
- are initiated at the request of the victim, his legal representative and representative (by general rule- Part 2 of Art. 20 of the Criminal Procedure Code of the Russian Federation);
- also stop by the will of the victim, reconciled with the accused.
Reconciliation is allowed before the court is removed to the deliberation room for passing the verdict, and in court appellate instance- until the court of appeal is removed to the deliberation room to make a decision on the case.
- h. 1 Art. 115 Of the Criminal Code of the Russian Federation - intentional infliction of minor harm to health;
- Art. 116.1 Of the Criminal Code of the Russian Federation - beatings by a person subjected to administrative punishment;
- h. 1 128.1 Of the Criminal Code of the Russian Federation - libel;
- h. 1 tbsp. 129 of the Criminal Code of the Russian Federation - an insult (expired).
More details
As a rule, the main prerequisite for the commission of the listed crimes is a clash, serious disagreements between persons. These are most often acquaintances, people connected by family, work or neighborhood. The hostile relationship between them is their internal affairs, and certain behavior or vocabulary is a kind of tradition. In order to prevent other crimes arising from personal hostile relations from becoming such a "tradition", the legislator quite strictly limited the list of cases of private prosecution to the minimum degree of harm: the most significant physical harm that can be suffered as a consequence of committing such a crime. - steps are slight harm health.
The main criteria that characterize private prosecution cases:
- the object of encroachment is the inherent properties of the person (health, honor, dignity);
- reason - interpersonal conflict (hostile relationship between the victim and the accused);
- maximum damage caused - slight harm to health;
- subjective-evaluative beginning (assessment by the victim himself of the act committed against him);
- criminal prosecution is carried out by the victim and completely depends on his will: he himself puts forward and supports the accusation (Article 22 of the Code of Criminal Procedure of the Russian Federation).
The listed criteria determined private order of criminal prosecution: it is carried out by the victim himself, who, being a private prosecutor, independently brings forward and supports charges in court (Article 22 of the Code of Criminal Procedure of the Russian Federation).
The exceptions are cases when:
- the crime was committed against a person who is in a dependent or helpless state (part 4 of article 20 of the Code of Criminal Procedure of the Russian Federation);
- the victim, for other reasons, cannot defend his rights and legitimate interests, including if the crime was committed by a person whose details are unknown (part 4 of article 20 of the Code of Criminal Procedure of the Russian Federation);
- the application was submitted against a person belonging to a separate category of citizens with professional immunity (deputies, judges, prosecutors, etc.), listed in Art. 447 of the Code of Criminal Procedure of the Russian Federation and subject to criminal prosecution in special order(part 1.2, 4.1 of article 319 of the Criminal Procedure Code of the Russian Federation).
In this case, the investigator and the interrogating officer, with the consent of the prosecutor, have the right to initiate a criminal case even in the absence of an application from the victim. Such cases will be prosecuted in a public manner, which does not deprive the parties of the right to reconciliation. Nevertheless, the termination of the criminal case in this case will be carried out in a different order, inherent in the proceedings on cases of public accusation (part 5 of article 319 of the Code of Criminal Procedure of the Russian Federation).
Private-public procedure for criminal prosecution
Public-private prosecution cases:
- excited only at the request of the patient;
- termination for reconciliation he is not subject to the accused (the parties can reconcile only before the issuance of a ruling on the initiation of a criminal case).
If a decision to initiate a criminal case is issued, criminal prosecution is carried out by the bodies of criminal proceedings in public (part 3 of article 20, part 2 of article 147 of the Criminal Procedure Code of the Russian Federation).
Cases of private-public prosecution are listed in Part 3 of Art. 20 of the Criminal Procedure Code of the Russian Federation. The list includes corpus delicti without aggravating circumstances, the responsibility for which is provided for by the Criminal Code of the Russian Federation:
- Art. 116 - beatings;
- h. 1 tbsp. - rape;
- h. 1 tbsp. - n violent acts of a sexual nature;
- h. 1 tbsp. - n breach of privacy;
- h. 1 tbsp. - n violation of the secrecy of correspondence, telephone conversations, postal, telegraph or other messages;
- h. 1 tbsp. - n violation of the inviolability of the home;
- Art. - n unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three;
- h. 1 tbsp. - n violation of copyright and related rights;
- h. 1 tbsp. - n infringement of invention and patent rights;
- Art. 159 - 159.3 - m fraud, incl. in lending, upon receipt of payments, using payment cards;
- Art. 159.5 - m insurance fraud;
- Art. , 159.5, 159.6,, of the Criminal Code of the Russian Federation, refer to cases of a private-public order, if they are committed individual entrepreneur in connection with its implementation entrepreneurial activity and (or) management of the property belonging to him, used for the purpose of entrepreneurial activity, or if these crimes were committed by a member of the management body commercial organization in connection with the exercise by him of the powers to manage the organization or in connection with the implementation of entrepreneurial or other economic activities by a commercial organization, except in cases where a crime has caused harm to the interests of a state or municipal unitary enterprise, a state corporation, a state company, a commercial organization with participation in the charter ( reserve) capital (mutual fund) of the state or municipality or if the object of the crime was state or municipal property.
The main criteria that characterize public-private prosecution cases:
- the object of encroachment is alienated, but individual (intellectual property); or the object is intimate (sexual integrity);
- criminal prosecution depends on the will of the victim only at the stage of initiating a criminal case.
More details
Thus, in proceedings on cases of private-public prosecution, dispositiveness is presented only at the first stage of the criminal process. The victim, as in the case of a private prosecution, must decide for himself how seriously his interests are violated and whether he should turn to the state for protection. This is also related to his individual moral attitudes and principles, but is not limited to personal hostile relationships. Any person can suffer from such a crime, therefore the legislator did not leave the parties the opportunity to influence the procedural decisions of the bodies carrying out criminal prosecution after the initiation of the case. Moreover, the head of the investigative body, the investigator, as well as with the consent of the prosecutor, the assistant has the right to initiate a criminal case even in the absence of a statement from the victim in cases where the latter, due to a helpless state or for other reasons, cannot protect his rights and legitimate interests ( Part 4 of Art. 147 of the Code of Criminal Procedure of the Russian Federation). This provision was mentioned as an exception for the private procedure of criminal prosecution. It has the same meaning for both private and private-public prosecutions.
Of the listed species only two types of criminal prosecution are clearly distinguished from each other - private and public. In the criminal process, they do not mix and do not form any new species.
Private-public order only implies a certain procedural boundary of the transition from one type to another. Such a boundary is the decision to initiate a criminal case.
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