Optimization of the criminal procedural model of the prosecutor's activity in pre-trial proceedings in a criminal case
https://doi.org/10.31429/20785836-14-4-82-88
Abstract
The contradictory development of legislation regulating the legal position of the prosecutor in pre-trial proceedings has led to a crisis of scientific doctrine. The current model of criminal procedural activity of the prosecutor in pre-trial proceedings does not correspond to the modern era. The centralization of State power should also be reflected in the centralization of procedural power in pre-trial proceedings. The prosecutor needs to become again, as in the times of the Russian Empire and as in many developed criminal procedural systems of the world, the head of the prosecutorial power of the state. On behalf of the State, he is called upon to act as a subject of prosecution and evidence during pre-trial proceedings. The prosecutor must be the procedural head and organizer of the pre-trial proceedings and be responsible for the results of the preliminary investigation. Only autocracy in the system of public criminal prosecution bodies can guarantee the proper quality of the preliminary investigation and the effectiveness of criminal prosecution.
The purpose of the article is to overcome the existing contradictions in the doctrine of criminal procedure law on the basis of the Russian legal tradition based on the postulates of modern jurisprudence on the structure of state power and the legal organization of crime prevention. The tasks solved in the course of the study were, firstly, the proposal of the author's concept of the leading procedural role of the prosecutor in pre-trial proceedings; secondly, the development of drafts of specific regulatory legal prescriptions that embody this concept. Along with the main methods, methods of theoretical modeling, historical method and comparative jurisprudence have been used.
The results of the study were the author's provisions aimed at developing the concept of a procedural prosecutor, which should ensure the continuity of the prosecutor's procedural activities in pre-trial proceedings and in court. The three-tier model of pre-trial proceedings "police-prosecutor-court" can be taken as a basis for the modernization of pre-trial proceedings and the participation of the prosecutor in it.
About the Author
O. V. Levchenko
Prosecutor's Office of Troitsky and Novomoskovsky administrative districts of Moscow
Russian Federation
Russian Federation
Oleg V. Levchenko, Cand. of Sci. (Law), prosecutor
Marshal Savitsky str., 16, Moscow, 117148
Tel.: +7 (499) 234-09-70
References
1. Aleksandrov A.S., Kukhta A.A. Accusatory power and investigative power: squaring the circle. Izvestiya vysshikh uchebnykh zavedenii. Pravovedenie = News of higher educational institutions. Jurisprudence. 2009;(4(285)):22–28. (In Russ.)
2. Bagmet A.M. On the elimination of dual power in criminal prosecution. Rossiiskaya yustitsiya = Russian Justice. 2013;(12):57–60. (In Russ.)
3. Borulenkov Yu.P. The place of the Prosecutor's office in the system of criminal prosecution bodies. Ugolovnoe sudoproizvodstvo = Criminal proceedings. 2013;(2):20– 23. (In Russ.)
4. Bykov V.M. The legal status of the prosecutor at the preliminary investigation. Sledovatel' = Investigator. 2008;(6):31–36. (In Russ.)
5. Voronin O.V. On the modern understanding of the concepts of "legal means of prosecutorial supervision" and "forms of implementation of legal means of prosecutorial supervision". Vestnik Tomskogo gosudarstvennogo universiteta. Pravo = Bulletin of Tomsk State University. Right. 2021;(39):5–14. DOI: 10.17223/22253513/39/1. (In Russ.)
6. Gavrilov B.Ya., Bozh'ev V.P. The concept of improving pre-trial proceedings in the XXI century: the opinion of science and practice. Yuridicheskaya nauka i praktika: Vestnik Nizhegorodskoi akademii MVD Rossii = Legal Science and Practice: Bulletin of the Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia. 2017;(2(38)):74–81. (In Russ.)
7. Golovko L.V. The State and its criminal proceedings. Moscow: Gorodets; 2022. (In Russ.)
8. Grigor'ev V.N., Pobedkin A.V., Kalinin V.N. Procedural regulation of the preliminary investigation as a result of the 2007 reform. Gosudarstvo i parvo = State and law. 2008;(6):48–58. (In Russ.)
9. Kapinus O.S. To the question of the procedural position of the prosecutor in criminal proceedings. Prokuror = Prosecutor. 2013;(2):50–58. (In Russ.)
10. Kolokolov N.A. The great confrontation: investigator vs prosecutor. Biblioteka kriminalista. Nauchnyi zhurnal = Criminologist's library. Scientific journal. 2014;(5(16)):9–29. 2014;(5(16)):9–29. (In Russ.)
11. Levchenko O.V. The prosecutorial power of the State in its legal organization and criminal procedural activities. Moscow: Yurlitinform; 2021. (In Russ.)
12. Levchenko O.V. Participation of the prosecutor in pre-trial proceedings in a criminal case (experience of comparative legal research). Moscow: Yurlitinform; 2022. (In Russ.)
13. Manova N.S., Churikova A.Yu., Smol'kova I.V. Can the fight against crime be a paradigm of the legal model of the prosecutor's activity? Vserossiiskii kriminologicheskii zhurnal = All - Russian Journal of Criminology. 2021;15(5):613–623. DOI: 10.17150/2500-4255.2021.15(5).613-623. (In Russ.)
14. Murav'ev N.V. Prosecutor's supervision in its structure and activity: a manual for the prosecutor's service. The Prosecutor's office in the West and in Russia. Volume 1. Moscow: Universitetskaya tip.; 1889. (In Russ.)
15. Tsvetkov Yu.A. Russian investigator: from Inquisitor to superman. Studies on the philosophy of criminal procedure. Ugolovnoe sudoproizvodstvo = Criminal proceedings. 2019;(1):16–23. (In Russ.)
16. Sheifer S.A. Pretrial proceedings in Russia: stages of development of investigative, judicial and prosecutorial power. Moscow: Infra-M; 2013. (In Russ.)
Review
For citations:
Levchenko O.V. Optimization of the criminal procedural model of the prosecutor's activity in pre-trial proceedings in a criminal case. Legal Bulletin of the Kuban State University. 2022;(4):82-88. (In Russ.) https://doi.org/10.31429/20785836-14-4-82-88
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