The role of the prosecutor in concluding a pre-trial cooperation agreement

In the Republic of Belarus, the institution of pre-trial cooperation agreement was introduced into the criminal procedure by the Law of the Republic of Belarus of January 5, 2015 No. 241-Z, which entered into force on January 28, 2015.

Previously, the criminal procedure legislation of Belarus did not operate with the concept of an agreement between justice and a person who committed a crime. Some aspects of the interaction between the suspect (accused) and the bodies conducting the criminal process were stipulated in the Criminal Code of the Republic of Belarus (hereinafter referred to as the CC).

Thus, according to Art. 63 of the CC, the following were recognized as circumstances mitigating responsibility:

- voluntary confession;

- active assistance in detecting the crime, exposing other participants in the crime, and searching for property acquired by criminal means;

- other actions aimed at compensating for the harm caused by the crime.

In the presence of the specified circumstances, the term or amount of punishment could not exceed half of the maximum term or amount of the type of main punishment chosen by the court, provided for by the relevant article of the Special Part of the CC.

Thus, individual substantive legal norms that facilitate the establishment of constructive dialogue between criminal prosecution bodies and the accused were present in the criminal legislation before.

At the same time, the procedural aspects of such interaction remained unregulated (except, perhaps, for voluntary confession, which was dealt with by Art. 169 of the Code of Criminal Procedure of the Republic of Belarus (hereinafter referred to as the CPC)). Moreover, if someone said they were going to "negotiate" with the investigation or the court, it would be a hint of corruption. Therefore, the introduction of the institution of pre-trial cooperation agreement with a suspect (accused) into the CPC of the Republic of Belarus is a kind of radical reform.

Currently, the main provisions on the pre-trial cooperation agreement are concentrated in special Chapter 49¹ of the CPC, which includes Art. 468⁵-468¹².

In turn, studying the norms of Chapter 49¹ of the Criminal Procedure Code allows us to conclude that the key figure in concluding a pre-trial cooperation agreement and overseeing its implementation is the prosecutor. Therefore, it is relevant to consider the role assigned to the prosecutor in the aforementioned process.

Analyzing the content of Chapter 49¹ of the Criminal Procedure Code, we will pay attention to some stages of concluding a pre-trial cooperation agreement, as well as the role and powers of the prosecutor in them.

In accordance with parts 6 and 7 of Article 468⁶ of the Criminal Procedure Code, a petition for the conclusion of a pre-trial cooperation agreement is submitted by the suspect (accused) or their defender to the prosecutor through the investigator. The investigator, within three days from the receipt of the petition for the conclusion of a pre-trial cooperation agreement, forwards the said petition to the prosecutor along with a certificate on the possibility or impossibility of concluding a pre-trial cooperation agreement with the suspect (accused).

Thus, the Criminal Procedure Code provides for a two-stage procedure for applying for the conclusion of a pre-trial cooperation agreement.

The investigator acts as the "first link" in this case, who, upon receiving the petition of the suspect (accused), is obliged to draw up a certificate on the expediency of its satisfaction.

The prosecutor acts as the "second link," who makes a decision on the petition of the suspect (accused). At the same time, from the literal meaning of Articles 468⁵ and 468⁶, it is not possible to establish which specific official of the prosecutor's office has the right to resolve this issue. After all, according to paragraph 32 of Article 6 of the Criminal Procedure Code, the definition of "prosecutor" includes the Prosecutor General of the Republic of Belarus acting within their competence, and prosecutors subordinate to him, their deputies and assistants, heads of departments (sections) and their deputies, prosecutors of departments and sections.

It seems that the legislator intended to empower the heads of prosecutor's offices or their deputies, but not assistants, with the right to conclude a pre-trial cooperation agreement.

and other subordinate prosecutors. In this regard, it is advisable to clarify the provisions of Articles 468⁵, 468⁶ of the Criminal Procedure Code, indicating that the petition is submitted to the head of the prosecutor's office or his deputy.

The pre-trial cooperation agreement must specify:

1) the date and place of the agreement's conclusion;

2) the official of the prosecutor's office concluding the agreement;

3) the surname, name, and patronymic of the suspect (accused) concluding the agreement, and the day, month, year, and place of his birth;

4) a description of the crime attributed to the suspect (accused), indicating the time and place of its commission, as well as other circumstances subject to proof in accordance with Article 89 of this Code;

5) the suspect's (accused's) admission of guilt in committing the crime;

6) the actions that the suspect (accused) undertakes to perform in order to assist the preliminary investigation in the investigation of the crime, the exposure of other accomplices in the crime, the search for property acquired by criminal means, as well as actions to compensate for property damage, pay income obtained by criminal means, and other actions aimed at redressing the harm caused by the crime;

7) the norms of criminal law on the appointment of punishment that may be applied to the suspect (accused) upon the fulfillment by him of the obligations provided for by the pre-trial cooperation agreement.

An analysis of the above articles leads to the conclusion that the purpose of concluding the agreement in question is twofold: on the one hand, the suspect (accused) receives guarantees of a punishment not exceeding certain limits (Art. 69¹ of the Criminal Code); on the other hand, law enforcement agencies, through the actions that constitute the subject of this agreement, gain the opportunity for criminal prosecution not only of the person with whom the agreement is concluded, but also of other persons.

Thus, for the prosecutor, the activity of concluding a pre-trial cooperation agreement withsuspects, accused is conditioned by the function of criminal prosecution.

The execution of this function when concluding and fulfilling a pre-trial cooperation agreement does not deprive the prosecutor of ensuring the rule of law, legality and law and order, the protection of the rights and legitimate interests of citizens and organizations, as well as public and state interests, as indicated in Article 4 of the Law of the Republic of Belarus "On the Prosecutor's Office of the Republic of Belarus". The Prosecutor's Office of the Republic of Belarus is a unified and centralized system of bodies that, on behalf of the state, supervise the accurate and uniform execution of regulatory legal acts in the territory of the Republic of Belarus, and also perform other functions established by legislative acts.

According to Article 468⁷ of the Code of Criminal Procedure, the petition of a suspect (accused) for concluding a pre-trial cooperation agreement is considered by the prosecutor or their deputy, who supervise the execution of laws during the preliminary investigation of a criminal case, within three days from the date of receipt [1]. The petition of a suspect (accused) who has committed a crime for which life imprisonment or the death penalty is provided for by the corresponding article of the Special Part of this Code, is considered by the Prosecutor General of the Republic of Belarus or the person performing his duties, within ten days from the date of receipt.

Based on the results of the consideration, the prosecutor or their deputy make one of the following decisions:

1) to grant the petition for concluding a pre-trial cooperation agreement, on the basis of which the said agreement is drawn up;

2) to refuse to grant the petition for concluding a pre-trial cooperation agreement, about which a ruling is issued.

The ruling of the prosecutor or their deputy to refuse to grant the petition for concluding a pre-trial cooperation agreement is not subject to appeal.

Thus, the legislator grants the prosecutor or their deputy the right and at the same time obliges them

to finally resolve the issue of concluding a pre-trial cooperation agreement.

At the same time, it seems that the two decision options provided for by the Criminal Procedure Code are insufficient for a final resolution of this issue. Thus, a situation may arise when the available materials of the criminal case are insufficient to objectively assess the intentions and capabilities of the accused to provide assistance. In this regard, when assessing the obligations specified in the petition, prosecutors need to pay attention to the possibility of their actual fulfillment, if necessary, request additional information from the initiators of the appeal, and also analyze the prospects of cooperation between law enforcement agencies and this person.

Thus, it is the prosecutor who ensures the formation of the necessary conditions for the application of the special procedure of Chapter 39¹ of the Criminal Procedure Code, the control over the implementation of its special pre-trial provisions, and the achievement of the ultimate goals of the criminal process at all stages of the special procedure for a criminal case.

At the same time, it should be noted that the structure of criminal procedure activity provided for by the said chapter is complex in terms of the procedural principles and forms used, as well as a number of individual features in terms of applying the provisions of criminal and criminal procedure law.

The institution of a pre-trial cooperation agreement with a suspect (accused) is primarily aimed at obtaining assistance from the investigation authorities in investigating crimes and exposing all their participants in the most difficult to prove criminal cases of serious and particularly serious group crimes. We believe that its use should be exceptional and applied only in cases where it is impossible or extremely difficult to establish and verify in full all the circumstances that are subject to proof in a criminal case in accordance with Article 89 of the Criminal Procedure Code through operational and investigative means.

SASHCHANKO Mikhail Alexandrovich,
Vitebsk Transport Prosecutor's Office, Deputy Prosecutor.