On the powers of the prosecutor to initiate disciplinary proceedings

Usov Aleksei Yur'evich PhD in Law Associate Professor of the Department for Prosecutor Supervision and Participation in Civil and Arbitrage Trials at Irkutsk Law Institute, Branch of the University of Prosecutor's Office of the Russian Federation 664035, Russia, Irkutskaya oblast', g. Irkutsk, ul. Shevtsova, 1 alexus_555@mail.ru Other publications by this author

The study of the problems of the implementation of the prosecutor's powers to initiate disciplinary proceedings is important and relevant both for the theory and practice of prosecutorial activity, since the prosecutor's activity is primarily aimed at identifying violations, analyzing them, taking response measures to eliminate them ^{[1, p. 178]}. The theoretical significance is expressed in the development of the results of previous scientific activity, the development of a conceptual and systematic approach to legislative regulation, the implementation and organization of prosecutorial supervision. The practical significance of the research lies in the scientific substantiation of the need to amend the legislation regulating the activities of the Prosecutor's Office of the Russian Federation, to adjust the judicial practice of challenging prosecutors' claims to bring perpetrators to disciplinary responsibility, to increase the effectiveness of law enforcement activities of the prosecutor's office to prevent similar violations of the law. The methodological basis of the research includes dialectical method, system method, methods of analysis, synthesis, analogy, deduction, induction, observation, modeling, historical, comparative legal, statistical and other methods.

In Federal Law No. 2202-1 of 17.01.1992 "On the Prosecutor's Office of the Russian Federation" (hereinafter – the Law on the Prosecutor's Office), the concept of "representation of the prosecutor" occurs repeatedly, is used in various semantic meanings. However, from the point of view of the Law on the Prosecutor's Office, the prosecutor's representation is, first of all, a kind of an act of prosecutorial response: the idea of eliminating violations of the law (article 24) and the idea of eliminating violations of human and civil rights and freedoms (article 28).

One of the traditional requirements (proposals) reflected by prosecutors in the submission is an indication of the need to consider bringing guilty officials to disciplinary responsibility. Law enforcement practice is characterized by a significant variety of approaches to how the relevant requirement should be reflected. This is primarily due to the practice of judicial challenging the prosecutor's submissions, based precisely on the fact that the application of disciplinary measures to the guilty person is the prerogative of the employer, a right, and not an obligation, in accordance with Article 192 of the Labor Code of the Russian Federation (hereinafter – the Labor Code of the Russian Federation). The established judicial practice is confirmed by scientific research ^[2,3] and decisions of the Supreme Court of the Russian Federation (Resolutions No. 46-AD16-2 dated 03.03.2016; No. 25-AD17-1 dated 03.04.2017; No. 57-AD19-40 dated 02.08.2019).

In this regard, in prosecutorial practice, there are often representations in which prosecutors reflect in the operative part of this document "proposals" to eliminate violations of the law (human and civil rights and freedoms), the causes and conditions that contribute to them. Disagreeing with this approach, we note that in the theory of prosecutorial activity, the opinion has been repeatedly expressed that "by introducing an idea of eliminating violations of the law, the prosecutor should demand, and not offer to eliminate the identified violations, the causes and conditions that contributed to them, since Article 17.7 of the Administrative Code of the Russian Federation does not provide for administrative responsibility for non-fulfillment of the prosecutor's proposals" ^{[4, pp. 36-38]}.

In search of a compromise approach, the practice of the prosecutor's offices of the Irkutsk region, the Altai Territory and the prosecutor's offices of other subjects of the Russian Federation has been formed, according to which the final part of the prosecutor's submission reflects the requirements for the elimination of violations of the law (human and civil rights and freedoms), the causes and conditions contributing to them, and the proposal to consider bringing to disciplinary responsibility the guilty officials persons ^[5].

At the same time, a different point of view has been formed in the theory of prosecutorial activity for a long time, supporting the amendment of article 25 of the Law on the Prosecutor's Office, the restoration of the provision existing in article 26 of the Law of the USSR of 11/30/1979 "On the Prosecutor's Office of the USSR" on the possibility of the prosecutor issuing a reasoned decision on the initiation of disciplinary proceedings, which must be considered no later than ten days the term after its receipt" ^{[6, p. 22]}. In order to eliminate the contradiction between the Law on the Prosecutor's Office and labor legislation, it was also proposed to supplement the Labor Code of the Russian Federation with Article 194 ¹ regulating the procedure for carrying out disciplinary proceedings initiated on the basis of a prosecutor's decision ^{[7, pp. 44-51]}.

Despite the fact that a lot of attention has been paid to this issue in the science of prosecutorial activity ^{[8, pp. 27-32]}, legislative activity to regulate these problems remains at the same level. Moreover, Professor A.Y. Vinokurov previously noted that currently there is no direct indication at all in the Law on the Prosecutor's Office that the prosecutor's requirement to bring the perpetrators to disciplinary responsibility is mandatory. At the same time, the provision contained in paragraph 2 of article 22 of the Law on the Prosecutor's Office that the prosecutor (his deputy) has the right to demand that persons who have violated the law be brought to other responsibility established by law is characterized by uncertainty, since he does not name a specific type of responsibility and the conditions under which the prosecutor can insist on its application, which allows us to talk about corruption of the corresponding norm ^{[9, pp. 84-93]}.

In this regard, we believe that it is necessary to address this issue again and provide additional arguments in favor of the legislative consolidation of the prosecutor's powers to initiate disciplinary proceedings.

The legislative consolidation of the prosecutor's powers to initiate disciplinary proceedings is found not only in the legislation of the USSR, which has lost its legal force, and the legislation of a number of states, such as the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic ^[10], but also in the "Model Law on the Prosecutor's Office", approved at the 27th plenary session of the Interparliamentary Assembly of the Participating States CIS Resolution 27-6 of 16.11.2006, which embodied the advanced achievements of prosecutorial science that existed at that time.

Traditionally, the statistical report on the prosecutor's work "Supervision of the execution of laws, observance of human and civil rights and freedoms", approved by the Order of the Prosecutor General of the Russian Federation No. 98 dated 02/21/2022, contains indicators on the number of persons brought to disciplinary responsibility on the prosecutor's recommendation. At the same time, such an indicator is considered as one of the characteristics of the effectiveness of the prosecutor's activity because it allows, by indirect signs, to assess how fully the prosecutor's supervision has been carried out, whether the persons responsible for the violation have been identified, whether measures have been taken to punish them. In this regard, in practice, there are representations of the prosecutor, which not only reflect the proposal to consider bringing guilty officials to disciplinary responsibility, but also indicate the need to send copies of orders on the application of disciplinary punishment to the prosecutor's office in case the employer makes such a decision.

The adoption by the prosecutor of measures aimed at bringing the perpetrators to disciplinary responsibility is dictated not only and not so much by the formal requirements of statistical reporting as by the need to ensure the prevention of violations. Contrary to a common misconception, the presence of a disciplinary penalty in an employee (civil servant) has a powerful educational effect, since it may entail certain negative consequences for him, such as a reduction in the amount of bonus payments, the inadmissibility of assigning another class rank during the period of the disciplinary penalty, the possibility of termination of an employment contract (service contract) for committing repeated disciplinary penalties, and others. Therefore, as a rule, persons with disciplinary penalties try to carry out their professional activities strictly in accordance with the requirements of the law. At the same time, it must be recognized that at present there is a negative practice, expressed in the fact that the heads of organizations, bringing officials to disciplinary responsibility on the initiative of the prosecutor, often remove such a disciplinary penalty almost the next day after the application. In this regard, we consider it necessary to pay attention to paragraph 16 of the order of the Prosecutor General of the Russian Federation dated 07.12.2007 No. 195, which instructs prosecutors "when applying acts of prosecutorial response, to take mandatory part in their consideration, to ensure mandatory control over the execution of the requirements presented by the prosecutor."

Thus, we believe that at present there is a need to legislate the powers of the prosecutor to initiate disciplinary proceedings.

At the same time, it should be noted that when bringing to disciplinary responsibility on the basis of the prosecutor's submission, a tendency has formed to apply such disciplinary penalties mainly in commercial and other organizations, and not in public authorities. This is primarily due to the fact that the heads of such organizations, fearing the application of stricter measures of responsibility to the head or organization itself (including in the form of an administrative fine), prefer to agree with the requirement (proposal) set out in the prosecutor's submission and find subordinate employees guilty of violating. A similar approach is noted in the activities of the executive bodies of local self-government. At the same time, in representative bodies of local self-government, higher state authorities, the prosecutor's proposal to consider bringing the perpetrators to disciplinary responsibility often does not find support. In this regard, the proportion of officials involved on the basis of the prosecutor's representations in these public authorities is extremely small, and the preventive effect of the corresponding prosecutor's representations is significantly reduced, as a result, similar violations are committed repeatedly, sometimes by the same officials. It seems that this state of affairs is fundamentally wrong. The activity of officials of public authorities is characterized by certain specifics, characterized by the publicity of their activities, the focus on the implementation of state functions, the imperious nature of the powers exercised, the normative structuring of the relations of the head and subordinate, the regulation of official and non-official activities of a civil servant by the Code of ethics ^{[11, p. 47]}. Therefore, we believe that the head of the state authority or local self-government body, who is the employer's representative, in which the violations identified by the prosecutor were committed, cannot use the margin of discretion provided for in Article 192 of the Labor Code The Russian Federation for employers (commercial and other organizations, individual entrepreneurs), and arbitrarily refuse to initiate disciplinary proceedings without sufficient grounds.

So, for example, paragraph 10 of the order of the Prosecutor General of the Russian Federation dated 07.12.2007 No. 195 provides that "when supervising the execution of laws by regulatory authorities, it is necessary to check the legality and completeness of the measures taken by these authorities to eliminate violations and bring perpetrators to justice, and in case of detection of inaction of such an authority – to raise the question about the responsibility of its head."

Thus, summing up the results of the conducted research, we propose to establish the obligation for state authorities and local self-government bodies to initiate disciplinary proceedings at the request of the prosecutor. To do this, it is necessary to amend paragraph 2 of Article 21 of the Law on the Prosecutor's Office, adding the words "The requirement of the prosecutor or his deputy to initiate disciplinary proceedings is mandatory for the authorities specified in paragraph 1 of Article 21 of this Federal Law."