Criteria for endowment of individuals with immunity from criminal prosecution and legal nature of revocation of immunity

Stel'makh Vladimir Yur'evich PhD in Law Professor, the department of Criminal Procedure, Ural Law Institue of the Ministry of Internal Affairs of the Russian Federation 620057, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Korepina, 65 vlstelmah@mail.ru Other publications by this author

All persons residing in the Russian Federation are equal before the law and the courts. This universal rule applies to all areas regulated by legal norms, to all types of legal activities, including criminal proceedings.

However, each General provision must have certain exceptions that do not refute, but only confirm its universal character. This statement fully applies to criminal procedure activities.

The procedure for criminal proceedings in the Russian Federation is uniform, but allows for the existence of both complicated and simplified procedures. Complicated procedures are often associated with so-called immunity from criminal prosecution, the preliminary overcoming of which is a necessary condition for bringing the holder of immunity to criminal responsibility.

Unfortunately, in the science of criminal procedure, many aspects related to immunity from criminal prosecution are not fully developed. Moreover, these issues are much more intensively studied not from criminal procedural, but from constitutional legal positions, which, of course, allows us to discuss this issue more fundamentally, but at the same time leaves many specific procedures that ensure the real implementation of immunity and have a purely sectoral, criminal procedural nature, without proper analysis, corresponding to the complexity and depth of the circumstances of reality.

Unsolved problems at the theoretical level lead to fragmentation of regulatory regulation and cause significant difficulties in law enforcement practice. These circumstances determine the relevance of the research undertaken.

The introduction of special procedures for criminal proceedings against certain categories of citizens always causes not only a scientific reaction, but also a social resonance. Accordingly, it is necessary to analyze the validity of granting certain subjects immunity from criminal prosecution, as well as to formulate at the theoretical level the main parameters of such immunity.

Complicated procedures of criminal proceedings are established, as a rule, in respect of such subjects brought to criminal responsibility, who are more vulnerable in legal and organizational terms than others and cannot fully independently protect their rights and legitimate interests (minors, persons recognized as insane due to the presence of a mental illness) ^{[9, p.12]}. Among the complicated criminal procedure proceedings, the one that is provided for in respect of persons engaged in certain types of public activity and endowed with certain immunities from criminal prosecution stands out. These subjects are not personally vulnerable; on the contrary, their positions give them powers and opportunities that the vast majority of citizens do not have. However, it is the nature of the activity performed, along with a high social and official status, that imposes increased responsibility on such persons, when many of their decisions may formally correspond to signs of official or economic crimes from someone's point of view. In addition, the possibility of initiating criminal cases under formally ordinary articles is not excluded, but in fact such a decision will be revenge for the public legal activities of the relevant subject.

Based on the above, granting certain categories of citizens immunity from criminal prosecution is quite justified ^{[2, p. 5; 14, p.8]}. in this case, criminal procedural immunity has a specific legal nature that distinguishes it from other special procedures of criminal proceedings established, for example, in relation to minors or the insane. The special procedures provided for subjects with increased personal vulnerability are designed to ensure a balance between public and private interests. Criminal procedural immunity is aimed at achieving a balance between the various public interests expressed by criminal justice bodies and certain state authorities.

It is in the public interest of the criminal justice authorities to create a legal structure that would allow them to initiate a criminal case as quickly as possible when detecting signs of a crime and perform procedural actions with certain persons in the status corresponding to their real attitude to the criminal act.

The public interest of public authorities lies in the need for legislation to provide entities that make certain decisions within the framework of implementing the competence of the relevant body with such guarantees that would allow them to effectively perform the powers assigned to this body. This public interest has another important aspect, which is rightly drawn attention to in scientific research ‒ it is aimed at excluding the possibility of carriers of immunity to evade responsibility for the committed offense ^{[1, p.8; 10, p. 7]}. This is the most important mechanism for self-regulation of the activities of the legislative and judicial authorities, ensuring its effective functioning and a high level of authority among citizens.

Therefore, in this situation, there is a very specific socio-legal phenomenon: competition of various public interests, each of which is important both for society and for the state. It should be emphasized that although a specific individual is brought to criminal responsibility, in the analyzed aspect he is considered primarily as a bearer of public legal powers, rights and obligations, so restrictions on his criminal prosecution are not so much intended to guarantee his personal interests, but the interests of the state authority that this person represents.

The list of subjects granted immunity from criminal prosecution is given in article 447 of the criminal procedure code of the Russian Federation, but it is also actually expanded by the norms of a number of Federal laws regulating the status of certain state bodies and their employees ^{[5, p. 85; 8, p.28-29]}. So, in paragraph 3 of part 1 of article 447 of the criminal procedure code refers to immunity from criminal prosecution of the Chairman of the accounts chamber of the Russian Federation, his deputies and auditors of the audit chamber, however, in part 3 of article 39 of the Federal law “On the accounts chamber of the Russian Federation” are also established by the criminal procedural immunity of inspectors of the accounts chamber. Given the fact that the norm of the Federal law provides for an increased level of assurance of a person in comparison with CCP, in case of conflict, shall apply instead of the provision of the criminal procedure law.

Article 447 of the code of criminal procedure specifies entities engaged in various types of public legal activity. At the same time, the choice of the legislator to include some subjects in the relevant list and not include others is not always obvious, which is rightly drawn attention to in the scientific literature ^{[12, p.91]}. Thus, when establishing criminal procedural immunity of the investigator, the legislator did not provide the same for the investigator, although their powers to investigate criminal cases are almost identical. Moreover, the validity of constructing such a broad list of persons granted immunity from criminal prosecution raises certain questions. It seems that the basis for granting criminal procedural immunity should be the person's belonging to the legislative or judicial branch of government, since in this case immunity is one of the most important guarantees of the independence of these branches of government from the Executive, whose representatives are the bodies of preliminary investigation. At the same time, it seems that the legislator based the granting of immunity from criminal prosecution on a different criterion ‒ social significance and the important work performed by the person. Otherwise, it is difficult to explain the appearance in the list of subjects with criminal procedural immunity, heads of investigative bodies, investigators, lawyers, members of election commissions. Of course, the level of responsibility of a particular activity and the social impact of decisions taken in its course is a serious factor, but using these circumstances to grant the relevant persons immunity from criminal prosecution seems hopeless and even a kind of dead end. In this case, there will always be questions about the need to expand the range of persons enjoying criminal procedural immunity almost indefinitely. In particular, it is difficult to explain why heads of Executive authorities of the Russian Federation's constituent entities, heads of large state and private enterprises, branch government bodies at the Federal and regional levels, and their deputies do not have immunity under this approach. Finally, there may be a fair question why there is no immunity, for example, for doctors who often make controversial decisions about the choice of a particular treatment method, and representatives of many other specialties. In this regard, V. O. Belonosov rightly formulates the questions: "is it necessary to protect only certain categories of officials, and not all citizens who need it, from unfounded accusations and even more so from restrictions on their rights and freedoms? Does the unification of the order manifest itself in immunities, and not in General rules?» ^{[3, p. 150]}.

In the end, the democratic and legal nature of the state, enshrined directly in the Constitution of the Russian Federation, obliges to create a system of judicial system and judicial proceedings, which presumes the legality of activities carried out both in the pre-trial and in the judicial stages, and additional guarantees in the form of criminal procedural immunities are introduced as an exception to the rule, representing an additional mechanism for ensuring the validity of decisions taken. We should agree with A. S. Shatalov, who suggests reducing the list of subjects granted immunity from criminal prosecution to the most necessary minimum ^{[15, p.131]}. At the same time, the proposals to completely abolish criminal procedural immunity look too radical ^{[6, p.612-614]}.

It should be taken into account that giving consent to criminal prosecution against representatives of the Deputy and judicial corps is, in fact, a tradition. It is very possible that this tradition is somewhat outdated. It should be recalled that such forms of consent to bring individuals to criminal responsibility (primarily parliamentary), historically arose at the time of the formation of representative authorities in absolute monarchies. All judicial bodies that existed at that time were directly subordinate either to the Supreme sovereign (Royal courts) or to local feudal lords. The independence of these courts from the Executive branch was completely absent. Accordingly, the only guarantee that a person elected to Parliament would not become an object of arbitrariness on the part of the king or the local feudal Lord was the Parliament itself.

However, since that time, the system of state authorities has undergone drastic changes. In all democratic States, the system of "separation of powers" has been formed, and the legislative and judicial authorities have become independent from the Executive authorities. In these circumstances, giving the consent of a representative body to bring an elected person of this body to criminal responsibility looks to a certain extent anachronistic. In addition, if the decision of a court of General jurisdiction is subject to appeal, the decision taken by the highest state authorities cannot be appealed. Accordingly, the consent of such a body becomes in a certain sense an additional confirmation of the legality of bringing a person to criminal responsibility, and this in a certain sense only complicates the situation of this person.

These are obvious disadvantages of the existing design. However, it also contains advantages. Much depends on the interpretation of certain aspects. For example, the parliamentary approval of criminal prosecution can be regarded not as an anachronism, but in a completely different way ‒ as a long-standing and time-tested democratic tradition, which has not been abandoned by any state, the legal nature of which is not in doubt. It is obvious that there is no need for the Russian Federation to break this tradition, especially since the mechanism of parliamentary lifting of criminal procedural immunity does not cause any special failures and does not interfere with the administration of justice.

The same tradition is the judicial procedure for revoking the immunity of judges. It seems that, given the independence of the judicial branch, these procedures should be maintained. The Russian legislator developed a very interesting design in which the consent to the criminal prosecution of a judge gives the judicial body that performs the criminal justice and the authority of the judiciary (judicial qualification Committee). The only exception to this rule is the constitutional Court of the Russian Federation & #8210; the only court in the state that is authorized to give an official interpretation of the Constitution, recognize Federal laws that do not comply with the Constitution, and at the same time does not have lower levels. Taking into account the special place of the constitutional Court in the judicial system of the Russian Federation, the consent to bring judges of this judicial body to criminal responsibility is given by the constitutional Court itself.

The scope of immunity established for different categories of persons specified in article 447 of the criminal procedure code of the Russian Federation is far from uniform. In respect of some subjects, immunity consists only in the fact that a criminal case on the fact that they have committed a crime must be initiated by the Chairman of the Investigative Committee of the Russian Federation, his Deputy or the head of the investigative body of the Investigative Committee for the subject of the Russian Federation. For others, the law provides for a detailed procedure of deprivation of immunity. Such subjects include members of the Federation Council, deputies of the State Duma, judges of all courts, the Prosecutor General of the Russian Federation, the Chairman of the Investigative Committee of the Russian Federation, and the President of the Russian Federation who has terminated his powers.

The procedure for removing criminal procedural immunity from each of these subjects has its own peculiarities, but there are also General procedures that are similar for all relevant persons. First of all, it is obtaining consent to initiate criminal proceedings or, if the case is initiated after the Commission of a crime, without having information about the persons involved in the Commission of the crime, then to involve the subject as an accused. Such consent is given: The Federation Council (for members of the Federation Council), the State Duma (for deputies of the State Duma and the President who has ceased to exercise his powers), the constitutional Court (for judges of the constitutional Court), the qualification panel of judges (for judges of other courts), a panel of three judges of the Supreme Court (for the Prosecutor General and the Chairman of the Investigative Committee).

Obtaining the consent of the competent authorities to carry out criminal prosecution of these subjects has many aspects, including problematic ones, each of which is of considerable interest and is a topic for independent scientific research. In this paper, it is planned to consider one of these aspects ‒ the nature of consent and the resulting volume and nature of information to be evaluated by the relevant authority.

Unfortunately, the laws only disclose these issues in relation to the Prosecutor General of the Russian Federation and the Chairman of the Investigative Committee. To initiate criminal proceedings against these individuals, the President of the Russian Federation sends a submission to the Supreme Court of the Russian Federation, after which a panel of three judges of the Supreme Court of the Russian Federation gives an opinion on the presence or absence of signs of a crime in the actions of the Prosecutor General of the Russian Federation or the Chairman of the Investigative Committee (part 2, 3 of article 448 of the code of criminal procedure). Thus, in this situation, the law requires to establish the presence of signs of crime in the actions of the person concerned. This means an analysis of the circumstances included in the subject of proof in a criminal case: the existence of the fact of the crime as such, the absence of explicit data indicating that the person's actions do not constitute a crime, an unverified alibi, etc. By its nature, this is about the same information that should be established by a court of General jurisdiction when choosing a preventive measure in a criminal case. At the same time, it should be taken into account that the panel of three judges of the Supreme Court of the Russian Federation is a judicial body, the same court of General jurisdiction, and for it to establish such facts is quite organic and natural.

In addition, it is necessary to take into account the specifics of the status of the Prosecutor General of the Russian Federation and the Chairman of the Investigative Committee. The direction of their activities is very narrow. The Prosecutor General is the head of the system of Prosecutor's offices that oversees the implementation of the law on behalf of the state, including the supervision of preliminary investigation bodies, as well as criminal prosecution. The Chairman of the Investigative Committee heads an investigative body whose powers are in a certain sense broader than those of other investigative bodies, since it is the Investigative Committee that has the right and duty to investigate criminal cases against certain subjects, and it is to the Investigative Committee that criminal cases from other investigative bodies can be transferred under certain circumstances, while reverse transfer is not provided for by law. Taking into account the special role of these subjects in criminal proceedings, it is quite justified that the initiation of criminal proceedings against these persons should be accompanied by certain additional guarantees that exclude the adoption of arbitrary, biased and politically motivated decisions. Moreover, these guarantees, taking into account the special place of the Prosecutor General of the Russian Federation and the Chairman of the Investigative Committee in the sphere of criminal proceedings, should also be of the same type as those that are implemented within the framework of judicial control exercised by courts of General jurisdiction in each criminal case.

It is a different case when the consent to initiate criminal proceedings is given by bodies that are not in principle related to courts of General jurisdiction and are not authorized either to administer justice or to conduct judicial control activities in criminal proceedings ‒ chambers of the Federal Assembly, the constitutional Court of the Russian Federation, and qualification boards of judges. The range of issues that they resolve when giving consent to the initiation of criminal proceedings against the relevant subjects is practically not regulated in the laws.

The only exception is a part 4 of article 448 of the criminal procedure code, which stipulates that the Federation Council and State Duma under an obligation to determine whether the reasons for the decision on excitation of criminal case by the opinion of the respective member of the Council of Federation or the Deputy of the State Duma expressed a vote in the house of the Federal Assembly or other legal action. Since members of elected legislative bodies have indemnitet ("non-responsiveness"), that is, they are not subject to prosecution for their opinion or expression of position ^{[13, p.7]}, having established the appropriate circumstances, the Federation Council or The state Duma must refuse to consent to the deprivation of this person's immunity (part 4 of article 448 of the criminal procedure code of the Russian Federation).

For the rest of the subjects and bodies that give consent to criminal prosecution, there is not even an indicative indication in any normative act of what issues should be resolved and evaluated when giving the appropriate consent.

Theoretically, you can imagine several approaches to resolving this issue.

First, based on the fact that consent is given to initiate criminal proceedings, it can be assumed that the competent authority should find out whether there are reasons and grounds for initiating criminal proceedings. Such proposals are formulated in the scientific literature ^{[11, p. 8]}. However, in a practical sense, this is unrealistic, since such a body as the house of the Federal Assembly, due to the specifics of its composition, structural structure, and the nature of its activities, is simply not able to solve such issues that require a detailed analysis of individual facts and their legal assessment.

Secondly, it can be imagined that when giving consent, circumstances must be established that confirm the fact of involvement of the subject in the Commission of a crime (the presence of signs of a crime in the actions of this subject). Such proposals are made by some scientists ^{[4, p. 8]}. However, this is also very difficult. On the one hand, in order to clarify such points, a deep knowledge of the circumstances of the act is necessary. It is obvious that the chambers of the Federal Assembly, the constitutional Court of the Russian Federation, and the qualification boards of judges have neither the authority nor the organizational capacity to collect the necessary information. On the other hand, such a construction will clearly mean an intrusion into the competence of the preliminary investigation bodies and courts of General jurisdiction of subjects not authorized to do so ^{[7, p.101]}. This will violate the independence guaranteed by law of investigative bodies and courts that have powers in the field of criminal proceedings, as well as force state authorities and the judicial community to deal with issues that are not appropriate for their purpose.

Thirdly, conceivably this design, which is named in article 448 UPK of the Russian Federation authorities should verify compliance with procedural order criminal procedure, i.e. the execution of the investigative bodies and Prosecutor's office exclusively to procedural matters. Such an algorithm is quite possible in practical terms, but it is not clear why the highest bodies of legislative power and constitutional justice should be given such responsibilities. It is obvious that compliance with strictly procedural rules, even from the sectoral (criminal procedure) point of view, is a very private issue, and for the chambers of the Federal Assembly and the constitutional Court of the Russian Federation, this is an excessively small issue, clearly not corresponding to the nature of their activities and their place in the system of state bodies. Clearly, adherence to the criminal procedure rules should be the responsibility primarily of the Prosecutor's office and courts of General jurisdiction in which the person subject to criminal prosecution, is entitled to file a complaint in accordance with article 125 of the code.

Fourthly, another option is that the relevant state bodies are called upon to clarify certain specific issues that differ from those that fall within the scope of clarification by the bodies of preliminary investigation, the Prosecutor's office and the court of General jurisdiction. In this case, there will be a certain division of functions between the criminal justice bodies and the state bodies that give their consent to the implementation of criminal procedure, which is much preferable to their intersection and substitution. Double control over the initiation of a criminal case and the adoption of important decisions at the preliminary investigation will consist of two qualitatively similar, but different segments, and not in a consistent duplication of the same issues.

Purely criminal procedural control, traditional for criminal proceedings, carried out by the Prosecutor's office and the court, will have as its subject the establishment of circumstances that are subject to proof at the appropriate stages of the criminal process, when making certain procedural decisions.

Special public-legal control will be aimed at checking specific circumstances that will prevent the use of criminal prosecution as a tool of revenge for the public-legal activities of the relevant subject. It seems that the content of this control should be the identification of the relationship between the initiated criminal prosecution and the decision-making by the person within their authority. Of course, it is only theoretically possible to strictly distinguish and separate the analysis of the circumstances to be proved in a criminal case and the validity of criminal prosecution. When identifying the dependence of criminal prosecution on the public legal activity of a person, the relevant competent authority is unable to avoid evaluating certain facts that are elements of the subject of evidence in a particular case, as well as a number of procedural actions. For example, it is impossible to reject the connection between criminal prosecution and the activities of a person as a Deputy or judge without finding out what specific facts serve as the basis for initiating a criminal case.

It seems that a certain "overlap" of the public-law control of criminal procedure control is quite possible and justified, since it is the public-law control that represents the unique guarantee of the activity of the relevant subject, which the criminal-procedure control is not able to fully provide. Therefore, the subject of public legal control may in certain cases be layered over the subject of criminal procedural control.

It seems that the proposed algorithm is optimal and should be accepted both at the doctrinal-theoretical and practical levels. It will not only strengthen, but also to organize control over the implementation of the criminal proceedings against deputies of the Federal Assembly and judges. The control will become multi-vector and at the same time structured, it will apply both to purely criminal procedural aspects, and to other aspects related to the sphere of constitutional and legal regulation. However, this problem, given its complexity and fundamental nature, cannot be solved within the scope of a scientific article. The question of the scope of the specific powers of state authorities in this area, and their relationship to the powers of the preliminary investigation bodies, the Prosecutor's office and courts of General jurisdiction, is subject to further careful and in-depth research.