The right for the prosecutor

In the news that the Deputy Prosecutor General of the Russian Federation Sabir Kekhlerov considers it necessary to give prosecutors the right to independently terminate the criminal cases coming to them, there are three topics. It would be nice to understand what he had in mind.

Termination without evidence

Based on the quote (“there are times when it is obvious that there is no evidence and it must be terminated, but the prosecutor’s office does not have such authority”), prosecutors are advocated for the right to terminate the criminal case against a particular accused, if there is no sufficient evidence in the case. But prosecutors are not just representatives of the state prosecution. They still decide whether sufficiently collected in a criminal case (investigation or inquiry) to send to the court. Simply put - having studied the criminal case within 10 days, the prosecutor either gives his consent to charge a person in court or not.

When the evidence is not enough, the prosecutor does not approve the indictment and returns the case to the investigator. It will not be possible to collect new evidence - the prosecutor will not give his consent - and investigators will have to terminate such a criminal case.

If the prosecutors were actually seriously interested in not going to court without evidence, the number of persons “rehabilitated” in the investigation would be more. In the meantime, the order is approximately like this - prosecutors are returned for additional investigation to investigators of the Ministry of Internal Affairs and SK about 20,000 criminal cases a year (out of about half a million who received), of which a little less than 2000 ceases and only about half a thousand - due to the lack of composition, about a thousand are suspended. The rest sooner or later still go to court. Therefore, this is probably not the problem.

World experience knows many options in which representatives of the state prosecution are the right to terminate criminal prosecution - both in case of insufficiency of evidence, and in case of possibility of electing a “easy” punishment (for example, in Germany the prosecutor’s office may offer a termination of the case in exchange for the payment of a fine). However, all these powers are closely related to the role of the prosecutor as the head of the preliminary investigation. Our prosecutor is legally separated from the investigation, so the individual powers themselves to terminate cases “for insufficiency of evidence” themselves, when entering their indictation, look alien - it is not too clear how it will be very different from the current situation.

Act of justice

The Code of Criminal Procedure of the Russian Federation enshrines the principle of administration of justice only by the court. This means that no one can be found guilty of committing a crime and subjected to criminal punishment otherwise than by the court sentence. Also, the defendant cannot be deprived of the right to consider his case by the jurisdiction court. If you terminate the criminal case due to insufficiency of evidence, this is, in fact, comparable to the justification: the accused will be considered “rehabilitated” and have the right to compensate for being subjected to criminal prosecution. In such an interpretation, this does not contradict the principle of administering justice by only the court - after all, a person will be recognized as innocent. However, there is still a termination of a criminal case on non -rehabilitating grounds.

Non -rehabilitating conclusion

The statistics given in the Rihan News is about this: the annual termination of 200-220 thousand criminal cases in court on the basis of Chapter 11 of the Criminal Code of the Russian Federation (“exemption from criminal liability”, which includes repentance, reconciliation of the parties and the expiration of the statute of limitations for liability) is a decision (decisions, not a sentence) that the defendant has committed a crime, but it can not be sentenced to sentence-because that he reconciled with the victim or has already expired the statute of limitations.

The key is that the fact of committing a crime is recognized as proven. If the defendant does not agree to the termination of the criminal case by the statute of limitations, the court will be sentenced, where he finds a person guilty, but will release him from punishment. But in the biography of the person in any case, information about bringing to criminal liability will remain - with all the "informal" consequences for him and relatives.

Should the prosecutors have such powers? In principle-if the consent of interested parties is still necessary for this-this will not change anything for the accused and victims, and really reduce the burden on the courts. On the other hand, in connection with the reconciliation of the parties and after the statute of limitations, it is possible to terminate the case during the preliminary investigation and now (and it must be assumed that after the “pretends” of the prosecutors are terminated - including where the evidence for the judicial consideration was not enough, but the prosecutor did not insist on termination). But they do it very rarely. Firstly, because the investigation needs an indicator of “sent cases to the court” and it is measured as a percentage of the number of completed cases. Any terminated business spoils him. Secondly, a legal basis / justification that “does not need to terminate cases during the investigation” is usually called exactly what a person is essentially guilty of a crime, and this is the prerogative of the court. Moreover, the court may not see the grounds for termination - this is the right, and not the obligation of the court.

Total

So it turns out that such an initiative gives rise to more questions. The main of which is good, this will unload the court, but what will change in the pre -trial stage? If this is a step towards changing the pre -trial investigation, then you need to start with the discussion about the role of the prosecutor and investigator in the modern system of the criminal process, and not with the individual powers of the prosecutor.

Although, in general, I emphasize - the expansion of the state’s rights to “defeat” before the court of criminal prosecution is a well -known world trend. But - then, probably, it is necessary to start with the prosecutors at any time of the investigation the right to terminate criminal prosecution due to the lack of corpus delicti. It will be possible to see further whether the number of persons rehabilitated before the court will increase. Knowing the stability of the system to changes and the fact that work practices have long been developed, there is no need to expect changes for mass affairs even in this case.