Torbas O.O. Discretion in criminal process of Ukraine

Torbas O.O. Discretion in criminal process of Ukraine. – Qualifying thesis on the rights of the manuscript.
The dissertation for a degree of the Doctor of Law in a specialty 12.00.09 – Criminal Process and Criminalistics; Forensic Examination; Operational and Investigative Activities. – National University «Odessa Law Academy», Odesa, 2021.

The dissertation is the first special complex research of essence and ways of realization of discretion in criminal process of Ukraine.

Author analysed scientific understanding of the concept “discretion” in law and established the lack of unity among scholars on this issue. It was concluded that discretion in criminal proceedings is the possibility of exercising powers, which consists in making one legally binding decision from several alternatives proposed by the criminal procedure legislation with the use of intellectual-volitional mechanism according to the circumstances of particular criminal proceeding, principles of criminal proceedings, professional experience of law enforcer, judicial and investigative practice, moral and ethical characteristics of law enforcer, in order to ensure private and public interests in criminal proceedings. It is established that discretion in criminal proceedings can be characterized by such features: it’s a way (an opportunity) to exercise authority; it’s a way of making legally binding decisions; has relative freedom; must be legal; must meet requirements of criminal procedure legislation; has an intellectual and volitional character; circumstances of the specific criminal proceedings must be taken into account; in criminal proceedings discretion is influenced by principles of the criminal process, professional experience of the law enforcer, judicial and investigative practice, moral and ethical characteristics of law enforcer; the ultimate goal is to ensure private and public interests.

The existence of several classifications of discretion in criminal proceedings was substantiated: depending on predictability – predictable and unpredictable; depending on the degree of freedom in application – alternative (which, in turn, can be divided into active and limited), frame and estimated; depending on the subject of application – discretion of subjects authorized to conduct criminal proceedings (investigator, detective, prosecutor, investigating judge and court) and discretion of the entities that assist in ensuring the implementation of criminal proceedings (head of the pre-trial investigation agency, head of detective agency, operational units and representatives of the probation body).
Correlation of limits and determinants of discretion was established, according to which limits of discretion are unchanged, because they establish the scope of powers and determined by law, while determinants of discretion are factors that are used consciously or subconsciously by authorised subject during the usage of discretion. In this regard author stated that it is impossible to classify limits of discretion, as they are only artificial limitations of power. Discretion in criminal proceedings can be characterised as a way of exercising powers by authorities of the criminal process. Accordingly, limits of discretion are defined as limitation of such powers. It does not matter what factors determine boundaries and how these boundaries may change depending on the field of law, source of law or even actual circumstances of the case. It’s important to understand that limits of discretion are only a restriction of such concept as authority. The essence of discretion is to provide an opportunity to exercise such powers that are already provided by regulations. This applies even in cases where discretion is used to close gaps in law, because even in such situations, authorized entities continue to act within their competence, making decisions that they are authorized to make or taking actions that they can. Accordingly, the limits of discretion are only artificial restrictions that set limits on the exercise of power by the relevant entities. Such limits may be of a legal nature (when the limits of discretion are defined in regulations), moral and ethical, arising from factors of expediency, efficiency, fairness, and so on. However, these circumstances only affect the limits of discretion, but are not the limits themselves, because the limits of discretion are inextricably linked in specific powers.

The division of determinants of discretion into subjective and objective is substantiated. Subjective determinants include only those factors that are related exclusively to the identity of the law enforcer and indicate his personal influence in making a certain legally significant decision. Accordingly, objective determinants of discretion relate to other factors: legislation, legal principles, law enforcement practices, and so on. Such determinants exist separately from the law enforcement entity. Objective determinants of discretion include principles, regulations, and law enforcement practices. Subjective determinants of discretion are determined by the personal qualities of the law enforcer and his own experience.

During the analysis of personal experience as a determinant of discretion, a category “false experience” was analysed. Such experience will occur when an erroneous decision has been made by an authorized official, but for some reason no negative consequences have occurred. In this case, such person will continue to use erroneous methods of investigation, consideration and resolution of criminal proceedings, expecting a positive result. The peculiarity of such false experience is the possibility of self-regulation in the process of law enforcement. Negative experience is much more dangerous is the, since it’s based on the professional deformation of a person authorized to exercise discretion in criminal proceedings.
As a result of statistical analysis of investigative judges’ rulings, it was found that when determining the amount of bail, investigating judges take into account the amount of property damage caused by a criminal offense and almost do not take into account other circumstances provided by criminal procedure legislation. As a result, bail becomes unpredictable and the judge’s discretion – unfounded. One way to overcome such situation is to introduce certain risk assessment tools, which can be based either on the results of a large number of previous similar decisions of investigating judges or can be developed by scientists and practitioners to introduce best practices of judicial discretion.

It was proposed to consider increased legal significance of judicial discretion as an additional specific feature of such discretion. Judicial discretion, like any other discretion in criminal proceedings, is primarily aimed at resolving a specific issue in specific criminal proceeding. However, unlike decisions of investigator or prosecutor, court decisions can be used not only in this criminal proceeding, but also in other proceedings. For example, judicial prejudice or legal positions by the Supreme Court. The difference in this case is that even before making a decision, judges of the Supreme Court understand that in the future such a legal position can be used not only by courts but also by any other participants in criminal proceedings in other criminal proceedings. In the case of judicial prejudice, court understands that in the future its decision can be used, for example, to establish the admissibility of already examined evidence.

It was established that at the stages of review court decisions court applies discretion at the initial stages when examining an appeal or cassation for compliance with the requirements of the CPC of Ukraine in terms of its content, subject of appeal, deadlines, etc. Thus, judge-rapporteur uses his discretion to decide on the possibility of assigning proceedings. The conditions for accepting complaints for consideration are quite clearly defined by the legislator, and therefore judge’s discretion in this case is quite significantly limited by the rules of criminal procedure legislation.

Such situation is also similar with the final procedural decisions that can be made at the stages of appeal and cassation proceedings. In criminal proceedings, judicial discretion is most pronounced in the case of reversal of court decisions by the courts of appeal and cassation in connection with a significant violation of the requirements of criminal procedure law. The legislator clarifies which cases of violation of the requirements of the CPC of Ukraine should be considered significant, but such list provides only examples of violation, which must entail the revocation of court decisions. At the same time, this list is not exhaustive, and any violations of the CPC of Ukraine referred by the participants in the criminal proceedings in their complaints must be assessed by a court, and a final procedural decision must be made as a result of judicial discretion.

It was established that the concepts of “procedural independence” and “discretion” of investigator are closely related, but are not identical, because discretion of investigator should be considered as a mechanism for procedural independence, which relates to the implementation of the investigator’s powers. In this case, connection between procedural independence and discretion of the investigator is two-way. Discretion is considered as a mechanism for the implementation of procedural independence, and the more often investigator can use the discretion, the wider its procedural independence will be.

In order to unify the provisions of the CPC of Ukraine, it is proposed to amend Part 3 of Art. 40 of the CPC of Ukraine and to exclude the provisions concerning the participation of head of the pre-trial investigation agency in the process of appealing prosecutor’s refusal to approve certain petitions by investigator. In this case, Part 3 of Art. 40 of the CPC of Ukraine can be formulated as follows: “3. In cases where the prosecutor refuses to approve the investigator’s request to the investigating judge to apply measures to ensure criminal proceedings, conduct investigative (search) actions or hidden investigative (search) actions, investigator has the right to apply to a higher prosecutor who approves or denies the request his agreement”. In addition, in order to ensure the unification of legal regulation, changes should be made in Art. 401 of the CPC of Ukraine, which should enshrine the right of detective to appeal such refusal by prosecutor to the head of the prosecutor’s office of the highest level. In this case, it is proposed to supplement Art. 401 of the CPC of Ukraine with Part 21 of the following content: “21. In cases where prosecutor refuses to approve detective’s request to investigating judge to apply measures to ensure criminal proceedings, conduct investigative (search) actions or hidden investigative (search) actions, detective has the right to apply to a higher-level prosecutor his agreement”.

In order to improve the procedure for initiating a pre-trial investigation, it was proposed to enshrine at the legislative level the definition of the term “application and notification of a criminal offense” on the possibility of making preliminary conclusion about the existence of an event of a criminal offense. Part 1 of Art. 214 of the CPC of Ukraine must be changed for the following edition: «1. The investigator, detective, prosecutor shall immediately, but not later than 24 hours after the submission of the application, notification of the committed criminal offense or after self-discovery from any source of circumstances that may indicate the commission of a criminal offense, must verify the application or notification of compliance requirements provided for in paragraph 71 of Part 1 of Art. 3 of the CPC of Ukraine and enter the relevant information in the Unified Register of Pre-trial Investigations, initiate an investigation and within 24 hours of entering such information to provide the applicant with an extract from the Unified Register of Pre-trial Investigations”.

The differences between procedural powers of head of detective agency and a head of pre-trial investigation agency were determined. Head of detective agency may only appoint one detective but may not appoint a group of detectives to conduct a pre-trial investigation. Obviously, this can be explained by the predicted ease of inquiry in comparison with the pre-trial investigation. Also head of detective agency has no right to approve the conduction of investigative (search) actions. In this case, legislator emphasizes that procedural actions carried out with the permission of the head of the pre-trial investigation agency (for example, performing a special task to detect criminal activity of an organized group or criminal organization) require increased control by the head of the pre-trial investigation agency. Also head of detective agency cannot independently conduct an inquiry as an investigator. Thus, it can be concluded that the head of detective agency in the criminal process performs only the function of control and cannot conduct an independent investigation.

As a result of the analysis of the category “effectiveness of pre-trial investigation” the definition of this concept was given – it’s a feature of pre-trial investigation, which is characterized by the ability to achieve the objectives criminal proceedings stated in Art. 2 of the CPC of Ukraine, and which can be assessed by checking the number of procedural actions that were made and efficiency of intermediate and final procedural decisions (notification of suspicion, drafting and sending an indictment to court, closing criminal proceedings, etc.).

It was established that in case of delaying pre-trial investigation in the process of assessing its effectiveness, the head of detective agency and head of pre-trial investigation agency must establish following circumstances: whether the investigator (detective) cannot carry out any other procedural actions; whether the investigator (detective) can speed up ongoing proceedings; whether the investigator (detective) could have avoided a situation in which he could not continue to carry out the necessary procedural actions for the pre-trial investigation.

Keywords: discretion, features of discretion, limits of discretion, determinants of discretion, judicial discretion, prosecutor’s discretion, investigator’s discretion, detective’s discretion, discretion of other authorized subjects of criminal proceedings.