No 3 (2022)

The paper presents a critical overview of a prosecutor’s status in the criminal procedure with regard to the criminal procedural functions assigned to him in part 1 of Art. 37 of the Russian Federation Code of Criminal Procedure. The relevance of the study is caused by the absence in the law of a definite indication of tasks and objectives entrusted on a prosecutor during the pre-trial and trial procedure at his simultaneous attributing to the prosecution, the goal of which is to ensure criminal proceedings. The contradictions and gaps in the enshrining prosecutor’s functions and authorities in the law led to the uncertainty of the prosecutor’s procedural status, which is the most dually manifested within the pre-trial proceedings, when, a prosecutor as a prosecution party, on the one hand, implements the criminal prosecution function, and, on the other hand, carries out the function of procedural oversight over the preliminary investigation bodies. After the semantic analysis of the term of “criminal prosecution”, having analyzed the ideas, opinions, and proposals presented in the criminal procedural science, as well as taking into account the logics of the law manifested at the regulation of the powers of the bodies of preliminary investigation into criminal prosecution, the author justifies the necessity of statutory division of the prosecutor’s functions and delimitation of borders for their implementation taking into account the criminal procedure parts. In the pre-trial proceedings, the prosecutor should be assigned only the procedural oversight function, and in the judicial proceedings – the criminal prosecution function. As a result, the main goal of the prosecutor during the pre-trial proceedings is to ensure the lawfulness when the preliminary investigation bodies implement their procedural authorities, and during trial proceedings – to carry out criminal prosecution in the name of the Russian Federation.

The paper considers special aspects of organization of the public prosecutor preparation to prosecute on the cases on occupying the supreme position in the criminal hierarchy. The authors specify the peculiarities of prosecuting on this type of cases before the court, formulates recommendations on the tactics of submission of evidence to the court. The paper summarizes the scientific recommendations on the public prosecutor preparation for judicial proceedings. The specifics of judicial consideration of cases on occupying the supreme position in the criminal hierarchy and the public prosecutor’s participation in it are taken into account. The authors identified that tactical specific of submission of evidence by a public prosecutor depends on the constitution of the court. Based on the analysis of judicial practice, the authors demonstrate that to achieve optimal result, it is advisable for public prosecutor to submit evidence in the order corresponding to the sequence of commission of a crime when a case on occupying the highest position in the criminal hierarchy is considered by professional judges. The paper describes the peculiarities of preparing a public prosecutor to participate in judicial proceedings on the cases on occupying the supreme position in the criminal hierarchy. The authors recommend that a public prosecutor submits evidence in the order corresponding to the structure of the way a defendant takes the highest position in the criminal hierarchy. Concerning the cases involving a jury, it seems reasonable to carry out a judicial examination of specialist – a criminologist – to explain the basic concepts reflecting the way a defendant takes the highest position in the criminal hierarchy. The authors suggest amending criminal procedure legislation on the cases, which cannot be considered by the court consisting of a judge and a tribunal of eight jurors.    

The paper considers the evolution of the purpose of criminal punishment in the sources of Russian medieval law with regard to the subjective guilt of a law-violator. For a long time, the essence of punishment in Russian law was expressed not so much in the application of sanctions to an offender for violating the norm of behavior (a custom) by the latter, but in restoring the violated order (the truth) and satisfying the victim’s resentment by causing physical suffering to an offender, or to compensate an offense by recovering the property of an offender. The essence of punishment was expressed in the restoration of justice, which was understood as an equivalent retribution to an offender for the evil committed, causing offense, and violating the general order. Such an understanding of the idea of justice, inseparable from law, has historically become the core of Russian legal consciousness. The author used the methods of historical-legal and comparative-legal analysis to study the activities of the legislator to limit the use of retaliation (revenge) by victims against an offender carried out privately without the state power participation. The author concludes that in the late medieval period, during the formation of the Muscovite state in the XIV–XV centuries, punishment becomes a compensatory remedy representing not a private, but a public (state or class) interest. Punishment in the state hands becomes retribution (punishment) to an offender formally on behalf of the whole society, but, in fact, on behalf of the ruling class. The legislator begins to pay attention to the internal (subjective) attitude of a person to a committed offense and its consequences when sentencing.