К вопросу об осуществлении органами прокуратуры Российской Федерации профилактической функции

Abstract

The article examines the normative legal acts on the implementation of the preventive function by the prosecution bodies of the Russian Federation. The correctness of the definition of the preventive function of the prosecution bodies given in Article 9 of Federal Law No. 182-FZ of 23 June 2016, “On the Foundations of the System for the Prevention of Offences in the Russian Federation”, is critically assessed. The need to clarify the content of the preventive function of the prosecutor's office by introducing amendments to a number of existing normative legal acts of the Russian Federation is substantiated. The author notes that the current Russian legislation, scientific community, and law enforcement practice are still uncertain about what the implementation of the preventive function by the prosecution bodies of the Russian Federation means. The author analyzes the norms of Articles 5 and 9 of Federal Law No. 182-FZ. She infers that, at present, based on the existing norms, it is impossible to make an unambiguous conclusion about how the prosecution bodies carry out the preventive function. On the one hand, it can be argued that the analyzed law provides for the implementation of an independent preventive function by the prosecutor's office within the framework of prosecutor's supervision over the implementation of laws. On the other hand, it would be appropriate to suggest that the legislator equates the supervisory function of the prosecutor's office with the preventive one. Federal Law No. 2202-1 of 17 January 1992 (as amended), “On the Prosecutor's Office in the Russian Federation”, does not clarify this issue; it gives two main functions of the Prosecutor's Office: supervision and criminal prosecution, leaving the list of possible functions open. This law does not specifically disclose the preventive function of the prosecutor's office. The function is deducible from the norms of Section III (Prosecutor's Supervision), Article 8 (Coordination of Activities to Combat Crime), and Article 9.1 (Conducting AntiCorruption Expert Examination of Regulatory Legal Acts). The author notes that, given the existing uncertainty in laws, there are also different points of view on this issue in science. The author believes that the prosecution bodies are still not endowed with the competence for the prevention of offenses; therefore, they cannot perform the preventive function in its traditional sense. According to the current Russian legislation, the bodies of the prosecutor's office supervise the implementation of laws on the prevention of offenses. The current legislation has norms that contradict each other and norms with an indefinite meaning, which continues to raise numerous questions from theorists and practitioners, does not contribute to the uniformity and effectiveness of law enforcement practice. In this regard, the author proposes: (1) to clarify the powers of the prosecution bodies of the Russian Federation in the field of crime prevention, separating the supervisory function from the preventive one, in Article 9 of Federal Law No. 182-FZ on the Foundations of the System for the Prevention of Offences in the Russian Federation. The author believes that the supervisory functions are fully regulated by the Federal Law on the Prosecutor's Office in the Russian Federation; therefore, there is no need to duplicate these functions in Federal Law No. 182-FZ; (2) to provide specific preventive powers of officials of the prosecutor's office of the Russian Federation in Federal Law No. 182-FZ. For example, instructing and informing in the domain of law (Article 17 of Federal Law No. 182-FZ) are not classified as forms of preventive influence of officials of the prosecutor's office, although the prosecutor's office has always carried out these activities; (3) to provide for the implementation of the preventive function by the prosecutor in the texts of Federal Law No. 2202-1 on the Prosecutor's Office in the Russian Federation, Federal Law No. 182-FZ on the Foundations of the System for the Prevention of Offences in the Russian Federation, Federal Law No. 120-FZ on the Foundations of the System for the Prevention of Juvenile Neglect and Delinquency of 24 June 1999, and other preventive regulatory legal acts. The function should be specified through describing its content: instructing and informing in the legal domain, as well as coordinating and anti-corruption expert work.