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Dynamics of formation of bodies of public prosecutor's supervision as institute of public administration in Russia



6. The federal law of December 17, 1998 No. 188-FZ (in an edition of March 2, 2007) "About magistrates in the Russian Federation" [Text]//SZ Russian Federation. - 1998. - No. 51. - Article 6270.

7. Constitution of the Russian Federation [Text]. - M, 2005.

D.V. Baksalyar,

applicant of the Saratov legal institute of the Ministry of Internal Affairs of the Russian Federation

DYNAMICS of FORMATION of BODIES of PUBLIC PROSECUTOR'S SUPERVISION AS INSTITUTE of PUBLIC ADMINISTRATION IN RUSSIA

^Вякому to the state if it seeks to be sovereign and independent at implementation of the foreign policy and stable at permission of internal questions, special function - providing by means of the institutes (bodies) of full, uniform and unconditional performance of the laws adopted by it is inherent. The Russian Federation realizes the specified function, leaning on the system of bodies of legislative, executive and judicial authority, but a special role is played at the same time by prosecutor's office of the Russian Federation - a uniform federal centralized system of the bodies exercising supervision of observance of the Constitution of the Russian Federation and performance of the laws existing in the territory of Russia on behalf of the state. This activity is carried out by prosecutor's office on the basis of the Constitution of the Russian Federation, the Federal Law on the Prosecution Service of the Russian Federation, other federal laws, international treaties of the Russian Federation. It is important that performance of the functions which are not provided by federal laws cannot be assigned to prosecutor's office of modern Russia. The purposes of activity of prosecutor's office are also established legislatively and are not subject to broad interpretation.

Public prosecutor's supervision as a special type of the state activity directed to performance of laws in the Russian Federation assumes inadmissibility of intervention in its implementation. It finds the expression in the legislative ban of impact in any form of public authorities and local government, public associations, mass media, their representatives and also officials on the prosecutor or the investigator with the purpose to influence the decisions made by them.

All this demonstrates that sharpness of a modern situation with legality and law and order in Russia, specifics of the endured period, at last, the entry of the country into the Council of Europe and ratification of the European convention about

and fundamental freedoms dictate to human rights protection need of the maximum use of human rights capacity of all public authorities, including prosecutor's office. It is represented that it is a task not only tactical, but also strategic, demanding for the solution of a long time. Its successful realization can be reached not by weakening of some human rights links and mechanisms of the state due to strengthening of others, and by their synchronous improvement.

For determination of essence of public prosecutor's supervision it is necessary to define the purposes and problems of emergence of this state institute in Russia.

The founder of bodies of prosecutor's office and public prosecutor's supervision in Russia the emperor Peter I by right is considered. The period of the end of XVII - the beginning of the 18th century was characterized by significant increase in crime, official abuses, embezzlement of public funds and bribery that caused urgent need in creation of public service on fight against these negative phenomena. Ukaz Peter I of March 2, 1711 in Russia establishes fiscal service which appointment was in that "over all affairs secretly to supervise and come to see about wrong court, also collecting treasury and other" [1, page 18]. This service Peter I imitated public authorities of Germany. In 1713 in Russia the general sneak's position is entered. Powers of sneaks, procedural means of their activity were defined in Ukaz of March 17, 1714. "About sneaks and about their position and action" [1, page 19].

In 1722 Peter I entered the new state institute which hitherto was not existing in Russia - prosecutor's office. The object set for prosecutor's office - carrying out in life of economic, social and political reforms of the tsar contrary to hidden, and is frequent also to the open resistance of local authorities. The means used by prosecutors already then had purely supervising character. As envisioned by the emperor public prosecutor's supervision was created as institute of control of activity of government, and first of all behind the Senate which became under the Decree "About a Position of the Senate" of April 27, 1722 the legislative and supreme body of subordinate executive power [2, page 182-199]. The prosecutor's office was founded by three Petrovsky decrees which created the full legal framework for activity of a new state legal institution. It, certainly, was the most important prerequisite of her statement in the Russian legal reality.

Supervision had the important distinctive sign allowing to distinguish it from other types of the state activity. It was that the prosecutor did not use a casting vote on one administrative matter. "Governing bodies make and solve cases, and prosecutors watch this production and the decision, protect their regularity, but do not take other next part in the merits of case, in their excitement" [3, page 284]. Thus, means of the prosecutor had purely supervising character and the basic among them was the so-called protestation, that is bringing of a protest in the body which broke the law or in higher body.

At the same time to the successful statement of the Russian prosecutor's office in gosudarst-

wine practice, gaining of high authority by it from the first days of the existence in many respects were promoted by two more important circumstances: relation to prosecutor's office of supreme authority and personal qualities of prosecutors, especially its top management. Certificates of historians informed us of the numerous facts of constant rendering courtesies by Peter I to prosecutor's office. Choice by the emperor of the first general prosecutor P.I. Yaguzhinsky was exclusively good.

According to O.E. Kutafin, "the prosecutor's office was created in Russia as the representative body first of all the imperial power which is carrying out from her name and on its assignment universal and constant surveillance and control of actions and decisions of the Ruling Senate, other central and local institutions" [4, page 6].

But already at Catherine I the considerable withdrawal from the procedure of supervision of prosecutor's office of compliance with laws established by Peter I in the state is noted, its state value is narrowed. Ceased to play an important role the Senate and also the general prosecutor. There was, thus, very paradoxical situation: dejure prosecutor's office continued to work according to the accepted Peter I Ukaz of January 12, 1722, a de facto its influence was significantly limited [5, page 7]. However in October, 1730 the imperial decree restored a position of the general prosecutor and prosecutors in boards and outdoor courts. Again the prosecutor's office was cancelled in Anna Leopoldovna's regency, on November 17, 1740. After the short period of some oblivion there is a revival of prosecutor's office.

The role of the prosecutor increases at Catherine II. With division of the Senate into departments the general prosecutor covers the control all their activity, and by the end of the 18th century, continuing to remain body of supervision, actually becomes the supreme body of management of the general competence. In such legal act, considerable for public administration and the judicial system, as "Institutions for management of provinces" of November 7, 1775, special chapter "About a public prosecutor's and stryapchesky position" in which wide powers of prosecutors on the general and judicial supervision, supervision of places of detention were established was provided, functions were concretized. The main task of the provincial prosecutor consisted in implementation of supervision of execution of statutes, observation of order, "laws defined". The provincial prosecutor was the representative of the center, supreme authority and was obliged to watch that installations of the center were put into practice on places without any deviations.

At Paul I public prosecutor's supervision was significantly weakened both in the center, and on places. During Alexander I's reign it was revived, and since 1802 the general prosecutor became at the same time and the Minister of Justice.

On the eve of reform of the 60th years of the 19th century the prosecutor's office was in a difficult situation. The system of supervision in Russia in the first half of the 19th century kept only relative unity. Along with the general prosecutor the highest supervision was exercised by the Senate, and on places - governors. Auber prosecutor's office, osushchestvlyav-

Shae supervision of the solution of affairs in the Senate, was connected with provincial prosecutor's office only submission to the general prosecutor. There was also no uniform act for public prosecutor's supervision. The duties assigned by the law to prosecutors and solicitors were so difficult and diverse and at the same time so are not certain that their implementation properly was in those conditions and at those states is obviously unreal.

In this regard it is no wonder that as soon as in the second half of the 50th years of the 19th century there was a question of need of judicial reform in Russia, it became clear that application even of some principles of bourgeois judicial system and legal proceedings inevitably involves reorganization of prosecutor's office. Radical changes were brought in the organization and activity of the Russian prosecutor's office during Judicial reform of 1864. Judicial charters of 1864 included four basic laws: Establishment of the judicial establishments defining a legal proceedings order; Charter of civil legal proceedings; The Charter of criminal proceedings and the Charter about the punishments imposed by magistrates.

Transformation of public prosecutor's supervision became a component of reform also. In Institutions of judicial establishments Section third entitled "About persons of public prosecutor's supervision" was devoted to public prosecutor's supervision. Article 124 established: "Public prosecutor's supervision is entrusted to chief prosecutors, prosecutors and their companions under the highest observation of the Minister of Justice as General prosecutor" [5, page 12]. Prosecutors were established at all trial chambers and district courts. Chief prosecutors consisted at cassation departments and a general meeting of the Ruling Senate.

The charter of criminal proceedings established that "prosecutors and their companions of preliminary investigations do not make, but give only offers on that to investigators and watch production of these investigations" [5]. At the same time they actually directed inquiry. "On production of inquiry about criminal actions the police ranks consist in direct dependence on prosecutors and their companions", - the law said [5, page 12]. On materials of preliminary investigation by the prosecutor the conclusion about the bringing by the defendant to court in the form of the indictment was formed. In the absence of the bases for the bringing to court the conclusion about diversion was taken out.

According to the project of Establishment of judicial establishments the district attorneys and their companions were appointed to a position by the Minister of Justice on representation of the prosecutor of trial chamber. The State Council decided to increase authority of the highest supervision on the empire and established appointment them as the highest power on representations of the Minister of Justice (Article 221 of Establishment of judicial establishments). It had to serve as confirmation that the prosecutor's office not only in the center, but also on places is "an eye monarchic", that is acts as body of the highest supervision [5, page 12].

The essence of reorganization of prosecutor's office according to the basic principles of judicial reform of 1864 consisted in restriction of public prosecutor's supervision by exclusively judicial area, assignment for the prosecutor of functions podder-

a zhaniye of public prosecution in court and in such strengthening of supervision of inquiry and the investigation which actually turned prosecutors into heads of preliminary investigation. In this regard also the system of bodies of public prosecutor's supervision changed: the provincial prosecutor's office had to give way to the prosecutor's office created in judicial districts. But carrying out judicial reform went slowly, it ended only by the beginning of the 20th century therefore in the 60-90th years of the 19th century in public prosecutor's supervision there were two branches, two subsystems: provincial and judicial prosecutor's office. Both of them underwent noticeable changes during this period.

And still under the terms of that time and orders reigning in the Russian courts till 1864, reform, beyond all doubt, was large break. And not only large, but also multidimensional, captured almost all institutes of legal proceedings and judicial system, criminal law. Significantly the prosecutor's office changed the person. And though authors of Judicial charters corrected the range of public prosecutor's supervision by affairs of "judicial department", strengthening of publicity of charge, control of the investigation and inquiry, in practice of the power were forced to find an equivalent of "all-supervising" function, having made prosecutors full members of provincial administrative committees (i.e. power control supervisory authorities). This compensation of public prosecutor's competences found the expression in the legislation on prosecutors in the form of the veiled formulation: "Some other duties moreover imposed on these persons are defined in the main Charters and regulations on accessory".

The system of bodies of public prosecutor's supervision significantly did not change up to falling of the royal mode. Even revolution of 1905-1907 did not lead to noticeable changes in its organization, except for increase in number of administrative presence in which the prosecutor, that is expansions of supervising activity of prosecutor's office had to participate.

Thus, development of a system of public prosecutor's supervision took place in the second half of XIX - the beginning of the 20th century in two main directions: 1) replacement of provincial prosecutor's office in process of carrying out judicial reform in the territory of the country; 2) strengthening of supervision of vessels and legal profession and investment of prosecutor's office with functions of the state legal adviser. "The new prosecutor's office" though continued to remain the executive authority which is directly subordinated to the government, in comparison with provincial prosecutor's office it was more independent and independent of local authorities.

Bibliography

1. Bessarabov, V.G. Public prosecutor's supervision [Text] / V.G. Bessarabov. - M, 2006.
2. Russian legislation of the 10-20th centuries [Text]. - M, 1986. - T. 4.
3. Ants, N.V. Public prosecutor's supervision in its device and activity [Text] / N.V. Muravyev. - M, 1889.
4. Kutafin, O.E. Preface [Text] / O.E. Kutafin//A.G. Zvyagintsev, Yu.G. Oko's Eagles monarchic: Russian prosecutors: The 18th century. - M, 1994.
5. Basques, V.I. Istoriya of prosecutor's office of the Russian Empire [Text] / Century. I. Baskov//Vestn. Mosk. un-that. - It is gray. 11: Right. - 1997. - No. 2.
Nicholas Perez
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