On controversial provisions that consolidate the powers of the public prosecutor in a trial

The article critically assesses the provisions of Parts 7, 8 and 6 of Article 246 of the current Code of Criminal Procedure of the Russian Federation (RF CCP) that assign powers of the prosecutor as a public prosecutor in court. Guided by well-known theoretical ideas about the internal (subjective) grounds of the accusatory activities, as well as by the requirements of the presumption of innocence, the author justifies the need to clarify the provisions of Part 7 of Article 246 of the RF CCP on the internal grounds for the public prosecutor's waiver of prosecution. As a result, the author proposes the following wording of the first sentence of Part 7 of Article 246 of the RF CCP: "If during the trial the public prosecutor does not come to believe that the evidence presented confirms the charge against the defendant, they waive prosecution and explain their motives for the waiver to the court." When referring to the analysis of Part 8 of Article 246 of the Code of Criminal Procedure, which fixes the power of the public prosecutor to soften the accusation, the author focuses on the absence of an indication in it of the procedural consequences of using this power. On the basis of the adversariality principle and the position of the Constitutional Court of the Russian Federation, the author notes that the procedural consequence of the prosecutor's softening the accusation is the court's obligation to render a sentence (other decision) that does not worsen the situation of the accused, in comparison with the already changed accusation, and it is proposed to clearly fix this procedural consequence directly in Part 8 of Article 246 of the RF CCP. Analysing the provision of Part 6 of Article 246 of the RF CCP, which provides for the right of the prosecutor to file or support a civil claim in the criminal case, the author discovers its inconsistency with the provision of Part 1 of Article 45 of the RF CCP and makes proposals for the elimination of the revealed inconsistency.

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