Hafych I. I. Organizational and legal bases of prosecutor’s participation in resolving the issue of termination of criminal proceedings. – Qualifying scientific work on the rights of the manuscript.
SUMMARY
The dissertation for obtaining of a Scientific Degree of Doctor of Philosophy in specialty 081 «Law». – Yaroslav Mudryi National Law University, Ministry of Education and Science of Ukraine, Kharkiv, 2021.
This thesis is devoted to the investigation of the theoretical, legal,
organizational and methodological foundations of the prosecutor’s participation in the process of closing the criminal cases and also to the wording of the science based suggestions aimed at improving its legal framework and enforcement practice.
The legal nature of the prosecutor’s activity in issues related to the process of closing a criminal procedure was revealed. It was found that this activity is intermediate between pre-trial and judicial activity in a criminal proceeding which embody such constitutional functions of the prosecutor’s office as organization and procedural guidance of the pre-trial investigation, resolving other issues of a criminal proceeding in accordance with the law, supervision over the covert and other investigation actions and prosecution in court on behalf of the state. The expedience of understanding this activity within the framework of such a component of the constitutional function of the prosecutor’s office provided by the paragraph 2 of part 1 of Art. 131-1 of the Constitution “resolving other issues of a criminal proceeding in accordance with the law ” was justified. At the same time, it was proved that although the activity of closing a criminal procedure is not completely a supervision activity, however, in case of supervision over the investigators decisions it can be considered within the category of “prosecutor’s supervision”.
A foreign experience of prosecutor’s activity at the stage of finishing a pre-trial investigation in some countries of Common Law (England, USA) and the Civil (continental) Law system (Germany, France, Switzerland) and former Soviet countries (Azerbaijan, Belarus, Kazakhstan, Moldova, Georgia) was analyzed. In accordance to this experience it was determined that there are two main kinds of the end of a pre-trial investigation such as closing a criminal proceeding or sending a case to trial. Being an authorized person a prosecutor is a key to this activity as one conducts a pre-trial proceeding and thus has rights to take decisions how to finish it – or to forward a case to court or to close a criminal procedure if a consideration of a case in court is impossible. The experience of the most western countries and some former Soviet ones that chose a western pattern of a criminal procedure (Moldova, Georgia) provides an exclusive role of the prosecutor in a process of closing a case.
At the same time in countries that still have a Soviet model of a criminal process
rights to close a criminal procedure belong also to the investigator and interrogator. The object and subject of the prosecutor’s activity in closing the criminal proceedings are characterized. The object of the relevant activity is disclosed through the understanding a closure of a criminal proceeding as a form of the end of the pre- trial investigation. According to the statistics, it was established that the closure of the criminal proceedings is the most spread form of finishing a pre-trial investigation. The reason of this is that a pre-trial investigation starts automatically, so the closure of a criminal proceeding got the role of a “procedural filter” instead of the decision to
initiate a criminal case.
The preparatory, main and final stages of the prosecutor’s activity on the
closure of a criminal proceeding are highlighted. A boundary moment of this activity is given as a moment when a criminal proceeding finishes completely that can be considered as the expiration of the period for its renewal (it means a legal deadline to appeal a prosecutor’s decision to close a case and to revoke an investigators decree to close a case by prosecutor) or when a court decision about the closure of a case with the exemption from a criminal responsibility entries into the legal force.
The article describes such elements of the prosecutor’s activity in closing a criminal proceeding, such as comprehensiveness, completeness and objectivity (to act impartially) of the pre-trial investigation, as well as the legality, validity and accuracy of closing a case. All these requirements together must be detected by the prosecutor while checking the procedural decisions of the investigator, interrogator and also in his own decisions that require a closure of a case.
A system of goals (tasks) that should be achieved to ensure that a prosecutor will be involved in activity of taking decisions about a closure of a criminal proceeding was formulated. It was substantiated that at the stage of finishing the pre- trial investigation the prosecutor must determine the perspectives of a case in court and the possibility of forming and maintaining a public prosecution.
The prosecutor must stop leading an accusation activity by closing the criminal proceeding if there is no judicial perspective or completing a prosecution activity is impossible. During taking a decision about the closure of a criminal proceeding the prosecutor must be aware of the need to ensure, on the one hand, the rights and legal interests of those who are involved in criminal proceedings, and on the other hand, the legality of the decisions which are taken.
The main principles on which the prosecutor’s activity in closing a criminal procedure is based were given: the rule of law, legality, adversariality, publicity and discretion, trial within a reasonable time, the assumption of innocence, non bis in idem. It has been substantiated that the biggest influence on the investigation activity of the prosecutor has a principal of reasonable time that requires an adequate time limits of taking the decision on the closure of criminal proceedings and provides its correlation with the observance of the terms of the pre-trial investigation.
The role of the prosecutor in the system of bodies who take a decision of the closure of a criminal proceeding was revealed. In addition to the prosecutor this activity includes the investigator (interrogator), the judge and the court. The cooperation between the prosecutor and each of them was disclosed.
It was proved that in the system of these bodies the prosecutor has the biggest and most universal authority that at the stage of pre-trial investigation becomes an exclusive relating to some reasons of closing criminal proceedings, and to terms of the end of the pre-trial investigation after charge on suspicion. Talking about the exclusive competence of the court to close criminal proceedings on the grounds provided by Part 2 of Art. 284 of the Criminal Procedure Code of Ukraine, the prosecutor plays an important role in the adoption of the relevant decisions by the court. This makes possible to define the prosecutor as a key and, in most of cases, as the exclusive body who can take a decision to close the criminal proceedings.
It is determined that the prosecutor’s activity serves as an important instrument of ensuring the legality during the process of the closure of criminal proceedings by the investigator and the interrogator. The prosecutor supervises over the observance of laws in decisions taken by the investigator, interrogator by checking the relevant decisions which is an official duty of the prosecutor who is a procedural ruler of the pre-trial investigation. Also a verification of the relevant decisions is carried out by the prosecutor in case of receiving complaints from the victim or applicant. The reaction of the prosecutor’s response to an unjustified decision to close a criminal proceeding is a decision to cancel the decision of the investigator, interrogator.
Moreover, the prosecutor must ensure accountability measures for the investigator, interrogator in case of non-performance or improper performance of their duties that led to an illegal decision to close a criminal proceeding.
It was detected that the prosecutor has much bigger authority than the investigator and interrogator in a question of closure of a criminal proceeding. The reasons for it and as well as in situations when a person was charged with being a suspicious such competence of the prosecutor is exclusive.
It is substantiated that in case of closing a criminal proceeding against the suspect but continuing the pre-trial investigation basing on the fact of a criminal offense or against other suspects, the prosecutor should determine the directions of further pre-trial investigation and procedural actions to be performed by providing a pre-trial investigation. In case of closure of the criminal proceedings by rehabilitative grounds the prosecutor must fulfill the additional obligations to ensure the right of the previously suspected person to get compensation for damage caused by illegal actions of investigative bodies, pre-trial investigation bodies, prosecutors and courts.
The problems of control over the prosecutor’s decision to close a criminal proceeding were analyzed. This control exists in two forms: in-house control provided by high-level prosecutors and judicial control by judge. The limitation of an in-house control caused by the absence of a mechanism of checking the legality of prosecutor’s decisions by higher prosecutors as well as the fact that such activity formally takes place out of the criminal proceedings because of its closure was proved. A number of proposals were made to solve these problems.
It was explained that a separate form of the prosecutor’s participation in the closure of criminal proceedings can be considered his activity to release a person from a criminal responsibility, which provides giving a help to the court in establishing a total amount of criminal and criminal procedural grounds and conditions for closing a criminal proceeding with the release from a criminal responsibility. The main stages of the prosecutor’s activity in this sphere are highlighted: 1) detecting the grounds and conditions for the release of a person from criminal responsibility; 2) documenting this decision; 3) sending a decision (an order) to court; 4) taking part in the trial.
Based on this research a number of suggestions about amending and
completing existing laws were made. For example, Art. 25 of the Law of Ukraine “Еру Prosecutor’s Office”, Art. Art. 36, 283-288 and other of Criminal procedural Code of Ukraine aimed at improving a legislation in the field of the prosecutors participation in activity related to closing criminal proceedings.
The practical value of the obtained results is that the conclusions and proposals which were made in this thesis can be used in next spheres:
1) research work – while conducting a theoretical research of the prosecutors activities in criminal proceedings;
2) law-making process – during improving a criminal procedural legislation and legislation that regulates the prosecutor’s office;
3) education and methodological work – to prepare the books, manual, as well as the disciplines «The fundamentals of the prosecutor’s activity», «Organization of the activities of the prosecutor’s office», «Prosecutor in a criminal proceeding»;
4) in a sphere of law enforcement activity – to provide a methodological assistance to prosecutors, investigators, judges, lawyers, etc.
http://nauka.nlu.edu.ua/download/diss/Gafich/d_Gafich.pdf
Key words: prosecutor, criminal proceedings, closure of criminal proceedings, pre-trial investigation, procedural guidance of pre-trial investigation, release a person from a criminal responsibility.
