Архетип национальной уголовно-процессуальной системы и прокурор как ее доминантный субъект

Abstract

The article proposes the author's definition and classification of primary and secondary signs of the national criminal procedural and legal organization of combating crime, as well as their manifestation in the legal status of the leading participant in pre-trial proceedings. The author concludes about the uniqueness of the modern form of pre-trial proceedings, which has become an organic part of the positive-legal criminal procedure model and doctrine. The legal organization of pre-trial and criminal proceedings as a whole is the result of balanced political forces. It is the political choice of the elite and, at the same time, an indicator of the real involvement in the political and legal processes of society. Now, a strong presidential power needs a strong accusatory power of the prosecutor's office. The investigative power must be subordinated to the power of the prosecutor: supervision over the procedural activities of investigators and bodies of inquiry is a form of prosecutor's management of law application in the pre-trial stages. The article presents a compromise concept of the investigative-prosecuting authority as the basis for optimizing the legal model of pre-trial proceedings and the entire legal system for combating crime. The specificity of the Russian investigative model of the legal organization of pre-trial proceedings is manifested in the separation of powers of two kinds: (1) the separation of the investigative-prosecuting and judicial powers and (2) the separation of the prosecutorial and investigative powers - the latter is redundant and does not correlate with the system of separation of powers in a legal state. The prosecutor and the investigator are the subjects of criminal prosecution, in relation to which the judiciary acts as a restraining force. It is the unity, not division, of the investigative and prosecutorial power in pre-trial proceedings that should be discussed. The one who conducts pre-trial proceedings with installed institutions of prosecution and evidence manages the criminal proceedings as a kind of “leading subject.” All other subjects, including the court, which is passive in the accusatory, that is, proactive plan, are followers. The prosecutor has a special position in the process, since he/she has exclusive powers regarding the transfer of a criminal case to court. The procedural role of the prosecutor has an inter-stage, general procedural character. Hence the author concludes about the superiority of the accusatory power of the prosecutor, which extends to pre-trial proceedings in relation to both the accusation and its proof. The prosecutor's office, as the accusatory power of the state, should be the central element of the criminal procedural and legal organization for combating crime. The institutes of accusation and proof, subject to the prosecutor, should form the elementary basis of the legal organization of combating crime.