Many domestic and foreign scientists. The problem of personal self-realization in the works of domestic and foreign scientists

Article 172 of the Code of Criminal Procedure of the Russian Federation determines the structure of bringing charges in court. It is established that the indictment is read by the prosecutor, and it is the prosecutor who carries out all actions aimed at proving guilt. The prosecutor has the right to interrogate the accused, question witnesses, provide arguments, evidence and other facts.

Who carries out the prosecution in court?

In accordance with established legal norms, an important aspect of the organization is formed trial. It is also indicated that both parties have equal rights in the process of exercising their own defense. A lawyer may act as a defense attorney for the accused. But the state prosecution is supported by the prosecutor. It is established that initially the prosecutor presents the indictment and reads it out. After which, it is he who carries out the process of interrogating the accused. Among other things, the prosecutor has the opportunity to provide various arguments and evidence and carry out additional interrogation of the accused. Implements various actions by interviewing witnesses, specialists, and third parties.

It becomes clear that the prosecution in court is carried out by the prosecutor, and it is the prosecutor who is the main element in the formation of a stable evidence base. Also, you need to draw your attention to the fact that the prosecutor takes part in the judicial debate, which actually becomes the basis for the formation of the final summing up, in which the position of the party is determined and the description of all the nuances on the issue of evidence is clearly honed.

Structure of the prosecutor's work

1. Reading of the indictment. The prosecutor indicates what the charge is, under what articles, etc. All participants in the process have the right to be present when the charge is read;
2. The prosecutor interrogates the accused. IN in this case, the interrogation is carried out within the framework of an established and ongoing case, questions are asked exclusively on the merits;
3. The prosecutor presents evidence and describes it. Additional interrogation of the accused is carried out based on the evidence provided;
4. The prosecutor carries out the process of interviewing witnesses, experts, interpreters, specialists and third parties;
5. The prosecution also carries out the process of judicial debate.

Here is a description of the main requirements that the legislator establishes in the work of the prosecutor - state prosecution. It is also established that the public prosecutor can work exclusively within the framework of the established law, and consider the case only on a clearly stated issue. If, for example, during the course of the case it becomes clear that there are other crimes of this accused person, the prosecutor may ask to submit the case for further investigation, with a change in the text of the indictment, as well as with proof of new circumstances.

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Public prosecution is an institution through which the mechanism of public criminal prosecution is ensured; the purpose of the criminal process is to protect the rights and legitimate interests of citizens and organizations, the state and society as a whole. The prosecutor's office has the exclusive right to carry out public prosecution. State prosecution is a type of public prosecution carried out by the prosecutor in various forms for the purpose of applying criminal law to persons who commit a crime and aimed at protecting the interests of the individual, society, and state.

Public prosecution is a law enforcement process in which the position of the prosecutor or someone else acting on his behalf is implemented. official to substantiate a person’s guilt in committing a crime, done in the manner prescribed by law. The state prosecution cannot be identified with the claim.

The concept of criminal prosecution is inextricably linked with the concept of accusation. Criminal prosecution is the implementation of the function of prosecution. It is the prosecution that carries out the criminal prosecution. In this regard, it is necessary to consider the concept of “accusation” in order to distinguish it from criminal prosecution and other similar legal phenomena. This will reveal the essence of criminal prosecution. Alexandrov A.S., Gushchev V.E. People's prosecution in criminal court. - N.Novgorod: New Scientific Research Institute of the Ministry of Internal Affairs of the Russian Federation, 1998. - 465 p.

The Code of Criminal Procedure of the Russian Federation provides for two types of prosecution: mixed and judicial. During a preliminary investigation in the form of an investigation, the accusation consists of two acts: a preliminary (investigative) accusation and an indictment, approved by the prosecutor and sent to the court. During an inquiry, the charge is an indictment presented by the criminal prosecution body to the magistrate. It is the indictment (indictment), from a theoretical position, that should be considered as an accusation in the proper sense, since this statement about the commission of a criminal act by a certain person is addressed to the court.

Let's consider the most common interpretations of the concept of “accusation”:

• -criminal procedural function; otherwise, as a set of procedural actions aimed at exposing a person prosecuted for committing a crime and ensuring the application of deserved punishment to him;
• - the activities of the prosecutor acting as a party in court;
• -subject of the charge, content of the charge; otherwise, an accusatory thesis, a statement about the guilt of the accused of committing a crime;
• - the prosecution side, the name of the prosecutor speaking in court";
• - the totality of illegal and socially dangerous actions or inactions incriminated to a person;
• - accusatory activity, maintaining the charge in court by authorized persons and the essence, content of the charge for a specific crime;
• - a proven statement, enshrined in a procedural document and aimed at implementing criminal liability, by the body of inquiry, investigator, prosecutor, judge or court about the commission of a crime by a given person.

In an adversarial criminal court, public criminal prosecution is transformed into an activity to support the state prosecution - the demand made by the prosecutor to the court to bring to justice the person who committed the crime. Kokorev L.D. Participants in criminal justice. - Voronezh, 1971. - 538 p.

There are three types of charges: private charges, public charges and mixed charges.

1. Private prosecution. Specified view the charge has two main conveniences. It greatly facilitates the work of government bodies, and gives the right to satisfy natural feelings resentment of the victim as a result of a crime committed against him or his loved ones. Self-interest guarantees that the prosecutor will be energetic enough to pursue a criminal case. But this type of criminal charge also has disadvantages. After all, not in every criminal case there is a victim capable of initiating criminal prosecution and bringing it before the court. This requires free time, property resources, and the desire to be an accuser. The reason for the dominance of private prosecution in early stage development of the criminal process, proceduralists traditionally consider the weakness and underdevelopment of the executive structures of the state.

In modern public criminal proceedings, private prosecution plays a minor role and is carried out only in a narrow category of criminal cases. Part 2 of Article 20 of the Code of Criminal Procedure of the Russian Federation allows private prosecution only for four offenses provided for in Article 115. 116. 129 part one and 130 of the Criminal Code of the Russian Federation. Commentary on the Criminal Procedure Code Russian Federation. / Under general ed. V.V. Mozyakova. - M.: Publishing House “Examination XXI”, 2002. - P. 137.

Private prosecution cases are those cases, the initiation and proceedings of which completely depend on the will of the victim of a criminal act. The role of the state in the person of the magistrate is reduced solely to creating conditions for competition between the parties and resolving a criminal legal dispute between private individuals.

2. Public accusation.

One of the types of public accusation is official accusation. In this case, public criminal prosecution becomes the right and responsibility of state-appointed officials.

According to the subject carrying out official criminal prosecution, it can be divided into:

• - criminal prosecution carried out by investigative and investigative bodies: a judge, an investigator - in inquisitorial form;
• - prosecutorial prosecution - in an adversarial (mixed) procedural form;
• - prosecution carried out by the investigative body, acting as a representative of the prosecutor's office;
• - prosecution carried out by another authority.
• 3. Mixed charges. These “mixed” species include the following:
  • - subsidiary criminal charge;
  • - additional criminal charge;
  • - public prosecution under Soviet criminal procedure legislation;
  • - private - public accusation.

Subsidiary criminal charge - the victim’s demand for the protection of his subjective rights and legitimate interests violated by the crime, coupled with the requirement to bring to criminal responsibility the person who committed this crime, brought to court, in the event of the public prosecutor’s refusal to support the prosecution in a private-public criminal case or of a public nature.

An additional charge is a crime victim's charge supported by him along with the state prosecutor's support of the state charge. An additional private prosecutor does not replace a prosecutor or other government agency as the prosecution, but acts together with it. Because of this, his demand to bring the defendant to criminal responsibility cannot be recognized as independent. This also applies to the actual private legal claims of the victim, acting as an additional private prosecutor in cases of public and private-public accusations. This type of charge is enshrined in paragraph 16 of Article 42, Article 22 of the Code of Criminal Procedure of the Russian Federation.

Subsidiary and additional criminal charges can be considered quite viable institutions for carrying out the function of prosecution, because they have as a basis a mixed type of criminal process, and as an element of interaction - prosecutorial criminal prosecution. Savitsky V.M. The core function of the prosecutor's office is criminal prosecution // Russian justice. - 1994. - No. 10. - P. 46.

Private - public accusation is a way of limiting the private accusation of the victim with the official accusation of the prosecutor. The private complainant here only has the initiative to initiate an official investigative criminal prosecution, but does not himself acquire the characteristics of an accuser.

480 rub. | 150 UAH | $7.5 ", MOUSEOFF, FGCOLOR, "#FFFFCC",BGCOLOR, "#393939");" onMouseOut="return nd();"> Dissertation - 480 RUR, delivery 10 minutes, around the clock, seven days a week and holidays

Antipova Natalya Tikhonovna. State prosecution in court: problems of legislative regulation and practice: Dis. ...cand. legal Sciences: 12.00.09: Moscow, 2004 225 p. RSL OD, 61:04-12/1764

Introduction

Chapter 1. State prosecution in adversarial criminal proceedings .

1. The concept and essence of public prosecution. Types of charges 13

2. Criminal prosecution as a function of prosecution by the prosecutor’s office 38

3. The procedural position of the prosecutor supporting the state prosecution in the court of first instance 58

Chapter 2. Procedural and organizational-tactical aspects of the prosecutor’s accusatory activities at the trial stage.

1. Strategy and tactics of maintaining state prosecution in court 88

2. Presentation and examination by the state prosecutor of evidence in the judicial investigation 121

3. Participation of the public prosecutor in the debate of the parties 170

Conclusion 202

List of used literature 208

Introduction to the work

The relevance of the research topic and the degree of its development.

The Criminal Procedure Code of the Russian Federation, adopted on December 18, 2001, significantly changed the procedural position of the public prosecutor in criminal court. However, Russian criminal procedural law continues to improve, changes and additions to criminal procedural law 1 again affected the regulation of public prosecution, and this once again confirms the relevance of not only the theoretical understanding and interpretation of legislative innovations, but also the development general concept participation of prosecutors in court proceedings. After all, experience shows that legislator decisions are not always balanced and thoughtful.

Thus, at present, it is of current importance basic research in the field of studying the essence of public prosecution. The intensive development of legislation cannot but affect the entire concept of prosecutorial supervision in our country, therefore, a discussion is necessary on ways to improve it so that continuity is maintained and the requirements of the time are taken into account.

No less timely is the improvement of judicial tactics of state prosecution in new conditions; methods of organizing prosecutorial activities; developing techniques for presenting incriminating evidence, examining evidence in the court of first instance.

The issue of the participation of the public prosecutor in the trial stage has become one of the most important issues since the mid-90s

1 Federal Law No. 92-FZ of July 4, 2003 “On introducing amendments and additions to the Criminal Procedure Code of the Russian Federation”, Federal Law No. 161-FZ of December 8, 2003. “On bringing the Criminal Procedure Code of the Russian Federation and other legislative acts into compliance with the Federal Law “On Amendments and Additions to the Criminal Code of the Russian Federation”

4
last century, when after the introduction of jury trials it became obvious
problems of maintaining state prosecution in conditions
competitiveness, equality of parties, spontaneity, publicity. Among
most significant works devoted to this issue, it is necessary
name the works of R.S. Belkin, S.D. Belov, V.V. Vlasov, V.V. Gavrilov,
K.F.Gutsenko, N.P.Kirillova, M.A.Kovalev, Yu.V.Korenevsky,

E.F. Kutsova, V.V. Melnik, I.L. Petrukhina, S.K. Pitertseva, A.A. Stepanova, A.N. Stulikova, A.Ya. Sukhareva, A.V. Timofeeva, V. G. Ulyanov, V. BLstrebov and a number of others.

Modern research builds on significant advances
Soviet procedural science. Among proceduralists and criminologists,
who worked fruitfully on this topic during the Soviet period should be named
L.E. Arotsker, V. K. Baskov, P. M. Davydov, R. G. Dombrovsky, N. V. Zhogin,
V.K.Zvirbulya, A.I.Mikhailov, R.D.Rakhunova, A.R.Ratinova, A.L.Rivlina,
I.D. Perlov, N.N. Polyansky, F.N. Fatkullin, V.M. Savitsky,

M.S. Strogovich, A.L. Tsypkin and many others. The classic works of N.A. Butskovsky, M.F. Gromnitsky, A.F. Koni, N.V. Muravyov, P.I. Sergeich, and other scientists devoted to the essence of public prosecution and the art of maintaining state prosecution in court have not lost their significance .

Despite the existing developments in the study of the institution of public prosecution, many theoretical issues of fundamental importance still remain controversial. Suggest to the legislator ways to optimize the right to turning point formation of prosecutorial supervision in criminal proceedings, explore the current realities in the field of criminal justice practice and the psychology of its participants, develop practical recommendations for public prosecutors in relation to modern conditions- all these questions are of continuing relevance for modern science and became the object and subject of dissertation research.

5 Object of study are public relations, arising in connection with the maintenance of state prosecution at the trial stage, which are regulated by the Code of Criminal Procedure of the Russian Federation.

Subject of research is the criminal procedure rules governing the activities of the public prosecutor in court; the practice of the state prosecutor exercising his procedural powers; all the diversity of opinions and judgments expressed in scientific literature on problems of public prosecution and its maintenance in court.

Purpose and objectives of the study. The purpose of the dissertation research is to study the problem of maintaining state prosecution at the trial stage, as well as legislative regulation and law enforcement practice. Specified common goal determined the formulation and solution of the following main tasks:

conduct comparative analysis approaches existing in science to understanding the content of state prosecution, distinguishing it from other legal concepts;

give a theoretical and methodological interpretation of the complex of norms of the Code of Criminal Procedure of the Russian Federation governing the participation of the public prosecutor in the trial stage of a criminal case;

highlight the procedural nature of the legal means of public prosecution and consider system characteristic powers of the prosecutor in the context of understanding the controversial issues that exist in the interpretation of the principles of criminal proceedings and general conditions judicial trial;

analyze changes in the legal status of the prosecutor in a criminal court related to the entry into force of the 2001 Code of Criminal Procedure of the Russian Federation. And subsequent changes and additions to the criminal procedure law;

develop proposals for improving criminal procedural legislation aimed at increasing the level and quality of regulatory regulation of the forms of implementation by the prosecutor of the function of prosecution in court;

Based on generalization of empirical data, determine optimal schemes
tactical support of state prosecution in court;

Methodological basis of the study is materialist dialectics. The work also uses historical, logical-legal, comparative legal and concrete sociological methods.

Theoretical basis of the study served as fundamental developments in the science of criminal procedure law and criminology, sociology, psychology, formal logic and the theory of argumentation. Direct sources of information on the research topic were: monographs, teaching aids, lectures, scientific articles, reports and other published materials reflecting certain aspects of the object and subject of research.

Regulatory basis for the study constitute the Constitution of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, the Federal Law "On the Prosecutor's Office of the Russian Federation", acts of the Constitutional Court of the Russian Federation and Supreme Court RF, as well as others regulations related to the subject of the study.

Factual base of the study compiled the results of a study of more than 80 criminal cases considered by the courts of Rostov-on-Don in 2000-2003. and interviewing lawyers (100 people) and prosecutors (100 people) and 45 judges in three regions of Russia: St. Petersburg, Nizhny Novgorod and Rostov-on-Don.

Scientific novelty of the work is determined by the fact that it refers to the number of studies carried out under the influence of new regulatory material based on modern concept prosecutorial supervision and provisions of the concept of judicial reform. Based on the current legislation, the essence of state prosecution is revealed in the substantive and procedural aspects; concepts are differentiated

7 “public prosecution”, “prosecution function”, “criminal prosecution”, “accusatory activity”; the author's interpretation of the tactics of the state prosecution is proposed; the procedural and legal position of the public prosecutor is comprehended in the light of the principles of adversarialism, legality, publicity, objective truth, ensuring the rights and legitimate interests of persons participating in the criminal process. Particular attention is paid to the pragmatic aspect of proving in court by the state prosecutor the assertion of the prosecuting authority that the defendant is guilty of committing the crime charged to him.

The scientific novelty of the research is evidenced by main provisions submitted for defense:

1. Public prosecution is an institution through which the mechanism of public criminal prosecution is ensured; the purpose of the criminal process is to protect the rights and legitimate interests of citizens and organizations, the state and society as a whole. The prosecutor's office has the exclusive right to carry out public prosecution. State prosecution is a type of public prosecution carried out by the prosecutor in various forms with the aim of applying criminal law to persons who commit a crime and aimed at protecting the interests of the individual, society, and state.

State prosecution is a law enforcement process in which the position of the prosecutor or another official acting on his behalf is implemented to substantiate the guilt of a person in committing a crime, done in the manner prescribed by law. The state prosecution cannot be identified with the claim.

2. In a procedural sense, the charge appears as a criminal prosecution. Criminal prosecution is the activity carried out by the prosecutor and other criminal prosecution bodies (participants of the prosecution) to initiate charges against a specific person and prove it in court.

8
Criminal prosecution in the pre-trial stages of criminal proceedings

legal proceedings are activities aimed at preparing and justifying the procedural and substantive legal claims of the prosecutorial authorities. In court, criminal prosecution takes the form of maintaining a charge by an accuser, either public or private. Criminal prosecution is the implementation of the prosecution function, the activity of preparing evidence necessary to support the state prosecution in court.

3. The legal status of the public prosecutor in the court of first instance is based on a system of principles of criminal proceedings. The activities of the public prosecutor represent the unity of three interconnected main components: prosecution, supervision, and human rights protection. The accusatory, supervisory and human rights functions of the prosecutor's office at the trial stage, being inextricably linked, are factors ensuring the resolution of a criminal case on the basis of legality, completeness, objectivity of criminal proceedings, state protection of the interests of individuals and organizations affected by crime committed.

Changes in criminal procedure legislation have significantly changed the legal status of the public prosecutor in the court of first instance. The obligation of the prosecutor to represent the prosecution determined the mandatory nature of his participation in the consideration of the criminal case by the court. Accordingly, a complete or partial refusal of the state prosecutor to charge during the trial, as well as a change in the charge towards mitigation, entails the court terminating the criminal case in whole or in part, and changing the classification of the offense. At the same time, such a court decision can be appealed by participants in judicial proceedings or by a higher-ranking prosecutor in the appellate, cassation or supervisory procedures. These changes, on the one hand, expand the powers

the state prosecutor, on the other hand, increase his responsibility and provide greater protection for the rights of the victim.

The criminal procedure legislation does not clearly delineate the procedural powers of the “prosecutor” and the “public prosecutor.” Thus, the right of an assistant prosecutor to support the state prosecution in court, provided for by the Federal Law “On the Prosecutor's Office of the Russian Federation,” is not directly enshrined in the norms of the Code of Criminal Procedure of the Russian Federation. In this regard, it would be advisable to amend the law to provide for the right of the prosecutor or, on his behalf, another official of the prosecutor’s office to carry out criminal prosecution in the form of maintaining state prosecution in court.

In order to more effectively support the state prosecution and reduce cases of changes in qualifications, it would be necessary to legislatively resolve the issue of bridging the gap between organizing supervision at the pre-trial stage and maintaining the state prosecution in court, since at these stages, as a rule, different employees of the prosecutor’s office act.

4. Due to the adversarial nature of the trial and possible opposition from the defense, the prosecutor needs to build a strategy and tactics for his activities in court. The strategy combines into a single whole the pre-trial and judicial activities of the prosecutor, aimed at the most effective performance of the functions of the prosecutor's office in criminal proceedings. The strategy determines the intention of the public prosecutor to achieve the goal of establishing the objective truth in the case, obtaining reliable knowledge about the circumstances of the case and the court’s adoption on this basis the right decision. The tactics of maintaining the prosecution is to optimally use the evidentiary material available to the prosecutor, present it to the court in the most convincing form, prove and substantiate a legal and fair accusation and establish the objective truth of the case.

Tactics judicial evidence, which forms the basis of the prosecution’s tactics, is a set of means and techniques for presenting and examining evidence, arguing, interpreting the law, logical operations used to achieve the intended goal. Preparing to maintain a state prosecution is important element prosecutorial tactics, in the same way that an integral element of criminal prosecution is the preparation of the prosecutor to support the prosecution, present evidence for the prosecution, and examine the evidence in court.

5. The content of the procedural function of the public prosecutor is, first of all, to prove the accusation, that is, to present to the court evidence that substantiates the conclusion about the guilt of the defendant, their systematization and analysis, as well as refutation of the arguments put forward by the defense. The completeness, comprehensiveness and objectivity of the investigation of the actual circumstances of the criminal case largely depends on the prosecution. Recognizing evidence as inadmissible primarily has a negative impact on the prosecution, since all the main evidence is presented in the indictment. It is possible to fill in the missing evidence when the public prosecutor uses the right to file petitions to call witnesses, experts, and other persons to restore the circumstances established by procedural documents excluded by the court from the body of evidence due to their recognition as inadmissible evidence.

Expanding the range of sources of evidence and the range of judicial actions that the parties and the court have the right to perform in a court session opens up new opportunities for establishing the truth in the case. The state prosecutor, along with other participants in the process, takes direct part in the investigative actions carried out by the court, monitors compliance with the requirements of criminal procedural legislation for the conduct of the relevant

investigative actions. The Code of Criminal Procedure of the Russian Federation gives the public prosecutor the right to file motions to conduct investigative actions in court. In order to reasonably and timely submit a petition for any investigative action or give a correct conclusion regarding a petition filed by another participant in the process, the public prosecutor must know the procedural order and tactical features of carrying out all investigative actions provided for by law, as well as the tasks that can be solved with with their help.

6. One of the most important stages of maintaining the state prosecution in court is the speech of the state prosecutor in the judicial debate with an accusatory speech. The central part of the prosecutor's indictment is the presentation of the factual circumstances of the case and the assessment of the evidence collected in the case. In the debates of the parties, such a principle of criminal proceedings as adversarial law is most fully realized, which is evident from the nature and direction of speeches expressing the interests of the parties.

The prosecutor's art of speech, as a judicial figure, is fully manifested in his ability to present his demands to the court and justify them. Therefore, the key point in maintaining the state prosecution is the presentation of prosecution evidence and participation in the examination of evidence. During the judicial investigation, the prosecutor is obliged to strive to achieve objective truth and an exhaustive establishment of the factual circumstances of the case. The main thing here is a deeply thought-out argumentation of one’s statements, based on a thorough analysis of the materials examined in court, refutation of the opponent’s arguments, the impact of speech on the mind, conscience, common sense and the internal conviction of judges, which allows the court to make a legal, informed and fair decision in the case.

Theoretical and practical significance research. The developed provisions and conclusions can be used to improve criminal procedural legislation, the Federal Law “On

12 Prosecutor's Office of the Russian Federation" to resolve a number of controversial issues related to understanding the essence of public prosecution, forms of implementation of the prosecution function, the nature of the procedural powers of the public prosecutor; for production practical recommendations on the presentation of incriminating evidence, the participation of the public prosecutor in judicial actions; in lecture courses, as well as when compiling curricula and special courses in higher educational institutions.

Approbation of research results. The main provisions of the dissertation were published in scientific articles: “Tactical and forensic aspect of cross-examination in a criminal court” (2003), “The function of prosecution (criminal prosecution) of the prosecutor’s office” (2004), “Participation of the public prosecutor in the consideration of criminal cases in a special judicial procedure” (2004. ). The dissertation research materials were presented at the interuniversity scientific-practical conference « Actual problems theory and practice of criminal proceedings and criminology”, held on April 22-23, 2004. at the Academy of Management of the Ministry of Internal Affairs of the Russian Federation and at the Department of Criminal Procedure and Forensics of Rostov State University.

The dissertation research materials are used in educational process university in preparing lectures, consultations, as well as conducting seminars and practical classes on criminal procedure and prosecutorial supervision.

Scope and structure of the dissertation. The structure of the dissertation is determined by the purpose and objectives of the research. The dissertation consists of: introduction, two chapters combining six paragraphs; conclusions; bibliography, compiled according to the alphabetical grouping method literary sources, and applications.

The concept and essence of state prosecution. Types of charges

The starting element for defining the concept of “public prosecution” is the category “accusation”. The term "accusation" can be interpreted in various ways.

A historical and legal analysis of the word “accusation” shows that it comes from the ancient Slavic verb “obiniti” / “obinyu” (ob+viniti), which had the meaning: to accuse, to find guilty, to prove guilt. For example: “And before the trial, do not use force against him, and whoever has the strength to do so will accuse him of that” (Novgorod Judgment Charter, 1471)3.

It should be noted that at the same time Old Russian language there was also the verb “accuse”, “accuse”, used in the meaning of finding guilty. For example: “If a slave has a dispute with him, but there will be no bail for him, accuse another slave and hand him over to the favor” (Contractual letter of Grand Duke Dmitry Ivanovich, 1375)4.

In addition, it must be taken into account that the word “guilt”, the root form for the above verbs, at that time had several meanings: 1) reason, 2) sin, guilt, guilt, 3) accusation, 4) apology, 5) penalty5. Of course, to talk about any severity in legal terminology in the law in force at that time it is not necessary. However, obviously, it was organic to the world of our ancestors and reflected the specifics of their right-wing worldview.

In the Old Russian language there were many legal terms characterizing the accusatory activity and the subjects carrying it out, which had a pragmatic orientation: “to find directly”, “to beat with the forehead”, “petitioner”, “plaintiff”, “defendant”.

The term “petition” existed to refer to the claim of a private prosecutor in court. For “investigative charges” - “Izvet”, i.e. denunciation In any case, in fact, we're talking about about an allegation of a crime allegedly committed by a certain person and about the requirement to bring him to criminal responsibility for this.

At the same time, the noun “accusation”, which would express in legal usage a concept associated with characterizing the essence of relations state power was not with the accused. Obviously, there was simply no need for this: until the concept of the subject of the right to punishment was formed - in the person of the sovereign. However, when the idea of ​​the power to punish was fully formed in legal ideology, corresponding language means to express it. This happened at the end of the 17th - beginning of the 18th century. In Russian legal usage, the noun “accusation” appeared during the formation of Russian literary language, designed to become an instrument of a new public policy. Introduction to Western legal ideology entailed both direct borrowings in the field of legal terminology and stimulated morphological changes in the vocabulary of Church Slavonic and orderly speech, which served as the basis for the formation of a new legal language. As B. Unbegaun notes, the terms “accusation”, “accusatory” and “accused” entered the language of Russian law along with a number of other new terms only in the post-Petrine era. In pre-Petrine times there were verbs “to accuse” and “to acquit”, but not specified verbal nouns and adjectives6.

Required quality new level development of legal technology and legal culture so that a term appears that expresses in abstract form the essence of the cornerstone concept of criminal proceedings. The concept of “accusation” is a kind of indicator of such maturity of legal technology and legal thought.

Starting from the Articles of Peter I, one can observe the rapid development of legal technology related to the regulation of the accusatory activities of judicial and investigative bodies. At the same time, there is a significant update of the language of criminal proceedings. New terms appeared, some of the old ones began to be interpreted in an investigative sense. There is a spread of the meanings of terms with the root “wine” to inquisitorial techniques, procedures, subjects, which in the previous era were covered by the concept of “detective”, “search”. In particular, the understanding of the term “claim” has radically narrowed. It began to be understood exclusively as the reports of prosecutors and attorneys. Prosecutors and attorneys were obliged to discover information reaching them about criminal offenses, especially silent ones, for which there is no plaintiff (T. 15, Article 937 of the Code of Laws Russian Empire). The Provincial Solicitor of Criminal Cases presents his reports in the form of criminal claims, but not otherwise than with the permission of the Provincial Board and in accordance with the written conclusion of the Provincial Prosecutor. The district solicitor presents his reports to the Provincial Prosecutor, and, at his command and consent, initiates a criminal claim (vol. 15, article 939 of the Code of Laws of the Russian Empire).

The term "accusation" has replaced the term "claim" from legal usage. Just as the investigative search replaced the private prosecution. The term “accuse” was interpreted in the investigative and investigative context of the current criminal procedural law, and from the moment of its appearance it began to be used to characterize the relationship between the investigative authorities and the accused (defendant).

Criminal prosecution as a function of prosecution by the prosecutor's office

As V.G. Ulyanov notes, although the term “criminal prosecution” was introduced into scientific circulation back in the pre-revolutionary period of Russian legal science, for a fairly long historical period of time many proceduralists were not recognized as having independent content and, in best case scenario, was used as equivalent to accusation. However, in connection with vesting the suspect with the right to defense with the help of a lawyer, the fallacy of this approach when studying the function of criminal prosecution, and, accordingly, the function of protection from criminal prosecution, became obvious

Modern scientists understand criminal prosecution as the activity of an investigator, an inquiry officer, an inquiry agency, a prosecutor, which consists of collecting factual data about the commission of a crime by a suspect or accused, establishing aggravating and mitigating circumstances, as well as the application of coercive measures against a suspect and accused, maintaining charges in court50 . Sometimes the term "charge" is used in the same sense as "criminal prosecution"51. The draft Code of Criminal Procedure of the Russian Federation even proposed to include criminal prosecution as one of the functions of criminal procedural activity, and its types were listed. Along with persecution, accusation was also mentioned, but the content of these concepts was not disclosed in the drafts52.

In the draft Code of Criminal Procedure of the Russian Federation (1997), the legislator quite clearly distinguished between “charge in court” and “criminal prosecution”. According to Part 1 of Art. 25 of the said Draft Code of Criminal Procedure “Depending on the nature and severity of the crime committed, criminal prosecution and charges in court are carried out in public, private-public and private manner.” The legislator distinguished between pre-trial criminal prosecution and maintaining state prosecution in court and in Part. 1, 2,4 tbsp. 37 of the Draft Code of Criminal Procedure of the Russian Federation (2001)

IN scientific publications criminal prosecution was also considered as a procedural activity aimed at proving the guilt of a certain person, consisting in formulating and justifying the conclusion that a certain person has committed a crime53. Russian proceduralists include detention, formulation and filing of charges, coercive measures, and drawing up an indictment in the content of the criminal prosecution function. A form of criminal prosecution means bringing charges against a certain person at the preliminary investigation stage and in court. Consequently, criminal prosecution, unlike the accusation, was not considered by scientists independently in the substantive or procedural aspect, but was studied only from the point of view of the criminal process. Therefore, when determining the essence of this concept, a mixture of its various features was allowed.

As already indicated, we distinguish between accusations in the material sense and in the procedural sense. At the same time, in a procedural sense, we interpret the accusation as a criminal prosecution. Procedural prosecution or criminal prosecution is an activity carried out by the prosecutor and other entities with the aim of exposing, on the basis of the collected evidence, the accused of committing a crime, both in court and in the pre-trial period.

Criminal prosecution in the pre-trial period is an activity aimed at preparing and substantiating the assertion of the prosecuting authority about the existence of a material criminal legal relationship between the state and the accused. In court, public criminal prosecution takes the form of maintaining state charges by the prosecutor.

In prosecutorial criminal prosecution, the prosecutor's activity is to collect information for the prosecution before the court. In the pre-trial period, the accusatory function of the criminal prosecution authorities is to find evidence of guilt, evaluate it and bring the accused to trial. Further, the prosecutor's criminal prosecution is carried out in the form of a court-sanctioned competition between the prosecutor and the defense.

Criminal prosecution in the criminal procedural aspect should be understood as almost all activities carried out by the prosecution to implement the accusation itself. Hence, criminal prosecution is a procedural, functional aspect of the prosecution. The concept of “criminal prosecution” has its own independent scientific and practical significance.

Strategy and tactics of maintaining state prosecution in court

In connection with the development of adversarialism in criminal proceedings, the parties have received great scope for tactical maneuvering in order to most effectively perform their procedural functions and solve their problems, both tactical and strategic. Since the court is obliged to create optimal conditions for the parties to exercise their procedural powers, but cannot carry out the function of criminal prosecution, the implementation of a system of actions that should ensure that the prosecutor achieves his ultimate goal in court depends solely on the prosecution. This is achievable through solving specific tactical and strategic tasks.

When analyzing the activities of the prosecutor, including in court proceedings, one should distinguish between both the tactics and the strategy of this activity.

The concept of prosecution strategy in procedural science and criminology has not yet been established. The prosecution strategy can be characterized as a general program of activities of the prosecution, including both a preliminary investigation in a criminal case and trial, or more precisely, maintaining the prosecution in court. It seems that the strategy of the prosecution is a system of actions of the prosecutor determined by the goal of the prosecutor - to achieve objective truth in the case. The prosecution's strategy in court should

be built on the basis of such principles as competition, objective truth, publicity, directness of trial, legality, publicity. The strategy of accusation should not be seen as a strategy to achieve success at any cost, but as a knowledge of the truth. All evidentiary means of the public prosecutor must be aimed at achieving this goal. Therefore, an integral component of the prosecution strategy is not only strict adherence to the norms of current legislation, but also to the norms of judicial ethics.

Strategies determine the prosecutor's intention to achieve his main goal in judicial competition by using the means at his disposal. Ultimately, the prosecution's strategy should be aimed at obtaining reliable knowledge of the circumstances of the case and making the right decision on this basis by the court.

Achieving the goals of the prosecution must be accompanied by the development of an algorithm of actions (including mental operations), aimed at searching and formulating optimal solutions to resolve problems that arise for the prosecution. It is important for the prosecutor to determine which factors can positively influence the achievement of the prosecution’s goals, and which may have a negative impact. Further, he needs to outline ways and means capable of transforming negative conditions until they are completely neutralized or at least reduced negative influence. Then determine the final desired result taking into account the objectives of the prosecution, achievable during the trial. In addition, when proving the accusation, the prosecutor must analyze and prove the inconsistency of all other versions of the criminal event put forward during the proceedings, except for the one that is substantiated by the prosecutor and is, in his opinion, the only reliable one.

The following can be said about the prosecution strategy. It may include counteracting the destructive actions of one’s opponent (they consist in generating distrust in facts and systems of cognitive and social networks factors on which they rely, i.e. everything that constitutes the “case of the prosecution”). In this case, the prosecutor must proceed from the fact that the defense attorney has the right to resort to any means of protecting his client that are not prohibited by law. In a legal dispute, the defense can use various speech techniques designed to influence the mind and feelings of the court. Including those related to the set of “unfair play” tools. IN modern theory In rhetoric, such unethical means of logical-linguistic games are called sophistry and eristics. The prosecution's strategy must take this point into account and be structured in such a way that no artificial obstacles prevent the achievement of the truth in the case.

According to the fair remark of V.G. Ulyanov, only by choosing the right tactics, owning tactics, developed by criminology and other sciences, it is possible to realize strategic objectives and achieve the goals of the prosecution105.

The prosecution tactics implemented by the prosecutor in court are a multifaceted concept. Taking into account the fact that during the trial the prosecutor seeks to achieve the court’s agreement with the indictment thesis he is defending with the help of the evidence presented, it should be concluded that the concept of prosecution tactics must include a significant amount of knowledge not only from the field of the theory of evidence, it is also necessary to use recommendations and the provisions of psychology, psycho-linguistics, theory of argumentation, rhetoric and other sciences.

The concept of judicial tactics is associated with the concept of forensic tactics; the most complete and detailed definition of forensic tactics is given by S.R. Belkin: “Forensic tactics is a system scientific provisions and recommendations developed on their basis for organizing and planning preliminary and judicial investigations, determining the line of conduct of persons carrying out evidence, aimed at collecting and studying evidence"106.

It is correctly noted that tactics involve highlighting typical rules selecting the appropriate remedy for typical cash conditions; These conditions are different for each party. Hence, as many interested participants in the trial as there can be “tactical patterns” of behavior107

Presentation and examination by the state prosecutor of evidence in a judicial investigation

The judicial investigation is main part stage of the trial. This, in the words of M.F. Gromnitsky, is “the root of the whole matter.” Here the parties present and examine evidence with the participation of the court. The public prosecutor is obliged to present evidence of the prosecution in order to form an evidentiary basis to substantiate his assertion that the defendant is guilty of committing the crime charged to him. At the same time, if necessary, he must prove the unreliability or inadmissibility of the information presented by the defense in his favor, refute the arguments presented opposite side, show the court the unfoundedness of the defense's allegations. Moreover, if the defense attorney can take a passive role in presenting evidence, then the prosecutor has the burden of proving the accusation, he is obliged to take all measures to establish the truth in the case. “All the power in criminal cases lies in the judicial investigation, and therefore here, in its shortcomings, in the inability to conduct it or in the impossibility of correcting the mistakes of the preliminary investigation in court, lie the reasons for those supposedly incorrect verdicts...”

The basis of the activities of all participants in criminal proceedings is the power of evidence. Evidentiary activities are carried out in court proceedings within the framework of judicial investigation and judicial debate. When rendering a verdict, the court finally formulates its conclusions based on the evidence that was examined and assessed by the parties to the trial.

With the adoption of the Code of Criminal Procedure of the Russian Federation, the independence of the parties in proving controversial circumstances of the case has increased, and the space for the manifestation of tactical skill and the art of proof has expanded. The parties are independent in defending their claims and justifying them. Therefore, all omissions of the prosecutor during judicial proof directly affect the final result of the trial. The role of the prosecutor supporting the prosecution in the judicial investigation, in substantiating his assertion, has increased many times, and his responsibility for mistakes made during the judicial investigation has also increased.

It is necessary to pay attention to the fact that, in accordance with the Code of Criminal Procedure of the Russian Federation, the defense party can present its evidence directly in court proceedings, without first presenting it to the prosecution for review. The prosecution applies reverse order, she is obliged to present evidence confirming the accusation and give the defense the opportunity to familiarize itself with it. In a trial, the defense can continue the process of gathering evidence as the need arises. The prosecution is deprived of this opportunity. Thus, if a defense attorney can conduct interviews with citizens in order to identify witnesses or otherwise find information of interest to him, then the prosecutor should be guided only by those materials that have already been collected at the stage of the preliminary investigation or petition the court to request additional evidence. But to apply to the court with such a request, it is necessary to know or at least assume that this source can inform necessary information. Consequently, the prosecutor must first discover this source and obtain from him the information that he wants to convey to the court. To discover evidence, the public prosecutor is not authorized to continue the investigation, just like the investigator or inquiry officer, if they have referred the case to court. Thus, the adversarial nature of the presentation of evidence by the parties to the trial appears to be only a declaration

The process of judicially proving the charge begins with an opening speech (opening statement - Article 335 of the Code of Criminal Procedure of the Russian Federation) of the state prosecutor. According to Part 1 of Art. 273 of the Code of Criminal Procedure of the Russian Federation, the judicial investigation begins with the presentation by the state prosecutor of the charges brought against the defendant. The opening speech (or statement) of the prosecutor is the most important procedural action, as well as a means of ensuring that he presents evidence.

The prosecutor is not bound by the requirement to read the indictment (indictment) or any part of one of the specified procedural documents. Often such a procedural document is difficult to understand by ear (due to overload with special terminology, complexity grammatical structures, which are abused by investigators in procedural documents, etc.). The prosecutor is obliged to make his opening speech as clear and accessible to the audience as possible. This is especially important in a jury trial. To achieve this goal, he must first of all formulate for the judges main question affairs. The state prosecutor is obliged to state the essence of the charge against the defendant (taking into account possible changes made at the stage of scheduling a trial - part 5 of article 23 6 of the Code of Criminal Procedure of the Russian Federation) and explain what evidence he has for this. I believe that the prosecutor in his opening statement is authorized to change the charge in compliance with the provisions of Art. 252 of the Code of Criminal Procedure of the Russian Federation, justifying and motivating its decision.