About some actual problems of the organization and activity of the Prosecutor's Office of the Russian Federation on participation in international cooperation

Cherepanov Maksim Mukhtarzhanovich PhD in Law Associate Professor, Department of Prosecutorial Activity, Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21, of. 322 m.m.cherepanov@usla.ru Other publications by this author

Byvaltseva Svetlana Gennadievna PhD in Law Associate Professor, Department of Prosecutorial Activity, Ural State Law University named after V.F. Yakovlev 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21, kab. 322 russianeng@mail.ru

Undoubtedly, an indispensable condition for the effective functioning of any public or private structure is the proper organization of its work. The Prosecutor's Office of the Russian Federation is no exception here, as a unified federal centralized system of state bodies, within which it is necessary to competently organize work to fulfill tasks in various areas of activity, including participation in international cooperation.  

It is necessary to agree with the reasoned opinion of a number of scientists that the transformations taking place in Russia today have predetermined the need to optimize and increase the efficiency of the functioning of the modern domestic prosecutor's office ^{[13, p. 9]}. It seems that scientific research, including this article, plays an important role in this process, which is designed to assist the prosecutor's office in solving urgent problems of prosecutorial activity, including participation in international cooperation.  

Unfortunately, it should be stated that not every manager can effectively organize the activities of a particular prosecutor's office in this area due to various reasons ^{[2, pp. 201-206]}, which include:

- objective reasons (shortcomings and gaps in legal regulation, scientific and theoretical shortcomings, shortcomings of the educational process for training prosecutors, the geopolitical situation in the world);

- reasons of a subjective nature (human factor).

Analyzing the first of these groups of reasons, it should be stated that the problems of legal regulation of certain issues of the organization and activities of the Prosecutor's Office of the Russian Federation on participation in international cooperation have not been resolved today at the federal legislative and departmental normative levels.

Thus, in Federal Law No. 2202-1 of January 17, 1992 (ed. of July 1, 2021; with amendments and additions, intro. effective September 1, 2021) "On the Prosecutor's Office of the Russian Federation" there is no separate chapter dedicated to the participation of the Prosecutor's Office in international cooperation as an independent direction of its activities. Accordingly, the subject, objects and subjects of international interaction, powers and legal means of authorized prosecutors are not clearly regulated. In this regard, it would be possible to refer to the content of the laws on the prosecutor's office of some CIS states (for example, the Republic of Tajikistan), in which these issues are regulated in sufficient detail.

Also, oddly enough, the most important order of the Prosecutor General of the Russian Federation dated May 7, 2008 No. 84 (ed. dated April 27, 2022) "On the delimitation of the competence of prosecutors of territorial, military and other specialized prosecutor's offices" does not define, does not delimit and even never mentions the competence of bodies and organizations of the Prosecutor's Office of the Russian Federation in the field of international cooperation.

Another drawback of the legal framework that prevents prosecutors from properly organizing work in this area is still the lack of bilateral agreements between the Prosecutor General's Office of the Russian Federation and the competent authorities of a number of foreign States on extradition, on legal assistance in criminal cases (for example, Iraq, Ecuador, Peru, Morocco and others). Interaction on the principle of reciprocity (Articles 453, 457, 460, 462 of the Criminal Procedure Code of the Russian Federation, sub-item 2.8, paragraph 2 of the Order of the Prosecutor General of the Russian Federation No. 297 of June 3, 2020) is not always carried out promptly, and often not at all.

There are many similar examples in the history of international cooperation when the principle of reciprocity "did not work": Great Britain refused to provide Russia with legal assistance in criminal cases initiated against B. Berezovsky and extradite him for criminal prosecution and execution of the sentence ^[3]. The competent authorities of the Kingdom of Cambodia also did not extradite citizen S. Polonsky to Russia in 2014. Then our Prosecutor General's Office, appealing against these decisions, reached the last instance of this state (the Supreme Court of Appeal), which also refused to satisfy this complaint, citing the absence of a bilateral extradition agreement ^[15].

Also, according to the head of the Main Department of International Legal Cooperation of the Prosecutor General's Office of the Russian Federation P. Gorodov, the competent US authorities do not consider the principle of reciprocity as a legal basis for the extradition of persons to Russia, as well as various important UN conventions on combating corruption, transnational organized crime and others ^[4].  

At the same time, we must admit that the Prosecutor General's Office of the Russian Federation periodically successfully solves this problem. For example, in 2012, a cooperation agreement was concluded with the Prosecutor General's Office of the Kingdom of Thailand, in 2016 – a memorandum of understanding and cooperation with the Ministry of Justice of the Kingdom of Cambodia, in 2021 – a cooperation agreement with the Prosecutor General's Office of Belize ^[5],[8], in 2022 – cooperation agreements with the Prosecutor General's Offices Donetsk People's Republic and Luhansk People's Republic ^[9].

As can be seen, one of the most important topical areas of the work of the Prosecutor's Office of the Russian Federation today is the extra-traditional activity. According to international and Russian legislation, the Prosecutor General's Office of the Russian Federation is the competent authority in matters of extradition and provision of legal assistance in criminal cases and cases of administrative offenses, and this cooperation is intensively and productively developing ^{[7, pp. 24-25],[23, p. 129]}. The exclusivity of the competence of the specified prosecutor's office on these issues is logical, since it performs, among others, a human rights task, and prosecutors are obliged to comply with the most important principles of international and national law, including the principle of ensuring that the prosecutor's office respects and protects the rights of persons brought to justice ^[20].

However, here it is necessary to touch upon the problem that the federal legislator's competence between the Prosecutor's Office of the Russian Federation and other state bodies of the Russian Federation in the field of international cooperation in the criminal procedure sphere is delimited by the residual principle, which in practice can lead to the substitution of one specified body by another. Thus, in accordance with paragraph 4 of Part 3 of Article 453 of the Criminal Procedure Code of the Russian Federation, a request for criminal procedural actions is sent through the Prosecutor General's Office of the Russian Federation in "other cases", that is, on issues not within the competence of the Ministry of Justice of the Russian Federation, the Investigative Committee of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service of the Russian Federation and the Supreme Court RF.

Thus, it is impossible to see from the specified norm of the Criminal Procedure Code of the Russian Federation which "other cases" fall within the competence of the Prosecutor's Office of the Russian Federation in the area under consideration. This question can be answered only by a systematic interpretation of the regulations of the Criminal Procedure Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation, regulations of the Prosecutor General of the Russian Federation and other legal acts of the Russian Federation.

Thus, the analysis of some of these documents shows that the exclusive competence of the Prosecutor General's Office of the Russian Federation is the consideration and resolution of the following requests:- on the extradition of persons for criminal prosecution or execution of a sentence (extradition) from Russia and to Russia;

- on the transfer of persons to international criminal courts (tribunals) whose competence is recognized by the Russian Federation;

- on the transfer of persons who have committed socially dangerous acts in a state of insanity for compulsory treatment;

- on the transfer and acceptance by the Russian Federation of persons suffering from mental disorders for compulsory treatment;

- on the temporary transfer of a person in custody or serving a sentence of imprisonment;

- on the implementation of criminal prosecution against a citizen of the Russian Federation who committed a crime on the territory of a foreign state and returned to the Russian Federation (Article 459 of the Code of Criminal Procedure of the Russian Federation);

- on the initiation of a criminal case and conducting an investigation based on materials submitted to the Prosecutor General's Office of the Russian Federation by the competent authority of a foreign state in respect of a citizen of the Russian Federation who committed a crime on the territory of a foreign state and returned to the Russian Federation before criminal prosecution was initiated against him at the place of commission of the crime (if there are grounds provided for in Article 12 of the Criminal Code of the Russian Federation);

- on sending to the competent authorities of a foreign state for criminal prosecution the materials of a criminal case initiated and under investigation against a foreign citizen who committed a crime on the territory of the Russian Federation, but subsequently found himself outside it, in case it is impossible to carry out procedural actions with his participation on the territory of the Russian Federation (Article 458 of the Code of Criminal Procedure of the Russian Federation);

- on the rehabilitation of persons, on the application of an amnesty act to a person (paragraph three of sub-paragraph 1.1.3.6 of paragraph 1 of the Instruction of the Prosecutor General of the Russian Federation dated January 6, 2020 No. 23/35 "On the procedure for organizing the work of the Prosecutor's Office of the Russian Federation on the provision of legal assistance in criminal cases");

 - on the production of procedural and other actions in cases provided for by the legislation of the Russian Federation.

Earlier in another scientific article ^{[21, p. 51-63]}, another objective problem was already raised that the work of authorized prosecutors, especially young professionals who for the first time encountered participation in international cooperation in terms of extradition, in practice may also be hampered by shortcomings in the regulatory regulation of the procedure for filling out and content of the express survey sheet, provided for by the Decree of the Prosecutor General of the Russian Federation No. 116/35 dated March 5, 2018 "On the procedure for the work of the Prosecutor's Office of the Russian Federation on the extradition of persons for criminal prosecution or execution of a sentence", for example:

- it is not clear how to get the signature of a person whose location has just been established, but who has not yet been detained? When he is detained, of course, he will "automatically" become a detained person, although the document in question provides for the signature of both the detainee and the identified person;

- there is no column to mark that the detainee refused to answer the prosecutor's questions and/or sign the sheet;

- there is no instruction to the prosecutor who interviewed the detained person to indicate his class rank (only full name and position);

- other disadvantages.

The next objective problem that I would like to address in this article is certain issues of the activities of the Prosecutor's Office of the Russian Federation on participation in international cooperation in cases of administrative offenses.

It seems that today international cooperation in this area is actually reduced to zero. The bulk of the petitions of the competent authorities of Russia to send requests to foreign states for the implementation of administrative prosecution of foreign citizens and legal entities who have committed administrative offenses on the territory of Russia did not reach the addressees due to violations of the requirements of international treaties and the Administrative Code of the Russian Federation. So, in 2016-2017, no such request was sent ^[6].

The question arises why these violations were not eliminated, and requests for legal assistance in cases of administrative offenses were not eventually sent to foreign countries? Either the work in the prosecutor's office was not properly organized to verify the legality of petitions for the direction of such requests, or there were real obstacles to their direction.    

The interaction between departments is complicated here by the fact that in some foreign countries there is no such category of violations of laws as administrative offenses, in others there are no compositions of administrative offenses similar to Russian ones. For example, in the legislation of France there is only the concept of "criminal offense", and in the legislation of Germany – "minor offense". In addition, there are no international treaties and cooperation agreements between Russia and many countries that regulate in detail the interaction between the competent authorities of foreign states in this area of legal relations. The existing international legal acts do not fully regulate the issue under consideration ^{[12, pp. 68-76]}. Examples are ^{[17, pp. 32-35.]}:

- Convention on Mutual Recognition and Enforcement of Decisions in Cases of Administrative Violations of Traffic Rules (concluded on March 28, 1997 between the Russian Federation and the CIS member States, ratified by Russia by Federal Law No. 134–FZ of 22.07.2008 "On Ratification of the Convention on Mutual Recognition and Enforcement of Decisions in Cases of Administrative Violations of Traffic Rules");

- Agreement on Legal Assistance and Cooperation of Customs Authorities of the Customs Union member States in Criminal Cases and Cases of Administrative Offenses (concluded on July 5, 2010 between the Russian Federation and the Republics of Armenia, Belarus, Kazakhstan, the Kyrgyz Republic, ratified by Russia by Federal Law No. 13–FZ of February 7, 2011 "On Ratification of the Agreement on legal assistance and interaction of the customs authorities of the member states of the Customs Union in criminal cases and cases of administrative offenses").

In addition, the flaw of the federal legislator, similar to the one described above regarding the criminal procedure sphere, can be traced in Chapter 29.1 of the Administrative Code of the Russian Federation, where paragraph 6 of Part 2 of Article 29.1.1 also, according to the "residual principle", provides the Prosecutor General's Office of the Russian Federation with competence in terms of sending a request for legal assistance in cases of administrative offenses. This problem also needs to be solved by making appropriate changes and additions to the specified norm of the Administrative Code of the Russian Federation. In practice, such a legislative gap may lead to the substitution by the Prosecutor General's Office of another competent authority of the Russian Federation. This situation is complicated by the lack of a unified judicial practice: there are only separate judicial decisions of Russian and foreign courts in this area. It is significant that some exclusive competence of the Prosecutor General's Office of the Russian Federation in the direction of these requests is "scattered" under separate articles of Chapter 29.1 of the Administrative Code of the Russian Federation:

- resolving the issue of sending a request for procedural actions to the authorities of a foreign state together with the case materials against a foreign legal entity or a foreign citizen, if they committed an administrative offense on the territory of Russia and then found themselves abroad, an administrative offense case has been initiated and is being investigated against them and it is impossible to conduct procedural actions against them with their participation in our country (Article 29.1.6 of the Administrative Code of the Russian Federation);

- execution of the request of the competent authority of a foreign state to carry out administrative prosecution against a Russian citizen who committed an administrative offense on the territory of a foreign state and returned to the Russian Federation, as well as a Russian legal entity who committed an administrative offense outside the territory of Russia (Article 29.1.7 of the Administrative Code of the Russian Federation). 

Another objective problem is undoubtedly a global problem of a geopolitical nature. The events currently taking place in the World, of course, cannot but affect the proper organization and activities of the domestic Prosecutor's office to participate in international cooperation. In conditions when the Prosecutor's Office of the Russian Federation withdrew from the International Association of Prosecutors ^[16], was excluded from the number of subjects of appeal to the European Court of Human Rights, other international bodies and organizations, prosecutors inevitably faced certain difficulties in the area under consideration, which will become visible in the near future. The uncertainty also affected further relations between the Prosecutor General's Office of the Russian Federation and the International Criminal Police Organization (Interpol), with which for the most part close cooperation has been carried out for decades ^[19].

The last objective problem, which I would like to briefly touch upon, concerns the shortcomings in the educational process of training prosecutors who will be able to perform the tasks of participating in international cooperation. Firstly, in many law schools, there is no discipline studying the international activities of the Prosecutor's Office of the Russian Federation at all. Secondly, it seems that the schedules for teaching this discipline are not correctly drawn up: there are often cases when students of the 1st or 2nd year of the magistracy, being already acting prosecutors, are first forced to face international cooperation in practice, without having the necessary theoretical and scientific basis, and only then begin to study this area of the prosecutor's office at the university. Thirdly, not all prosecutor's offices conduct advanced training courses or internships on the subject under consideration or are conducted at a low professional level. For these reasons, prosecutors need to be prepared in advance to address issues in the field of international cooperation: know the regulatory framework, judicial and prosecutorial practice, the essence of the extradition process, the competence of the prosecutor's office, and other necessary issues.  It is also important, for example, to imagine the structure (stages) and content of the extra-traditional check, taking as a basis the theory of the prosecutor's check in general ^{[1, p. 54]}.  

Investigating the reasons of a subjective nature that make it difficult for the prosecutor's office to promptly and properly solve the tasks of participating in international cooperation, attention should be paid to the following.

In particular, some, if not many, prosecutors did not have and do not have practical experience of participating in international cooperation in the field of criminal proceedings and proceedings in cases of administrative offenses – some of them themselves told about this during a personal conversation with the authors of this article. For example, one of the prosecutors of the district prosecutor's office of the Magadan region, and subsequently the interdistrict prosecutor's office of the Omsk region, currently retired, admitted that during his many years of practice he had never encountered issues of extradition and international cooperation in general. Assistant Prosecutor of the District Prosecutor's Office of the Trans-Baikal Territory, sharing his experience of participating in the conduct of an extraordinary check ^{[10],[11],[14, p. 105 – 113]} and filling out the express survey sheet of a citizen detained in the supervised territory, complained that neither he nor the head of the specified prosecutor's office had until that day either even the slightest experience in the field under consideration, and therefore faced with the problem of proper and prompt execution of the requirements of the instructions of the Prosecutor General of the Russian Federation regulating organizational issues of the work of the Prosecutor's Office of the Russian Federation on the extradition of persons for criminal prosecution or execution of a sentence ^[2].

As can be seen from the above examples, there is a subjective factor: the lack of experience and proper qualifications of prosecutors of districts, cities and prosecutors of other prosecutor's offices at this level.

It seems that another problem of a subjective nature is the lack of important information reflecting some of the main results of the participation of the Russian Prosecutor's Office in international cooperation on the official website of the Prosecutor General's Office of the Russian Federation: for example, it is impossible to find in free access uniform statistical data on this activity and its practical examples in cases of administrative offenses, on the extradition and acceptance of persons by Russia, suffering from mental disorders, and some other relevant areas. The full picture of this work is not always reflected in the reports of the heads of the prosecutor's office, informational letters, interviews and other so-called "signaling legal means of prosecutorial response" ^{[2, p. 150],[22]}.

In conclusion, this article should express the opinion that it is necessary to eliminate all the above shortcomings in order to avoid wasting time and mistakes in the practical activities of prosecutors in the area under consideration, and this can be done by making appropriate amendments and additions to the Code of Criminal Procedure and Administrative Code of the Russian Federation, separate organizational and administrative documents of the Prosecutor General of the Russian Federation, continuation of diplomatic policy on the conclusion of bilateral agreements on cooperation with the competent authorities of foreign states in the criminal, criminal procedure spheres and outside these spheres, as well as the development of appropriate methodological recommendations (instructions) of the Prosecutor General's Office of the Russian Federation and scientific textbooks developed by the teaching staff of law schools. It will be useful to reflect uniform statistical data on the participation of prosecutors in international activities and practical examples in such areas as cooperation in cases of administrative offenses, on the extradition and acceptance by Russia of persons suffering from mental disorders, and some other relevant areas (reports, interviews, informational letters, information on the official website The Prosecutor General's Office of the Russian Federation, speeches to service teams of subordinate employees, etc.) ^[22]. Also, universities should revise curricula-schedules for teaching students a discipline that studies the participation of the national prosecutor's office in international cooperation.