The validity of decision-making as a fundamental principle of the Prosecutor's Office

Kovalev Artem Aleksandrovich PhD in Law Associate Professor, Department of Prosecutorial Activity, Ural State Law University 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21 artem.kovalev.1978.kovalev@mail.ru Other publications by this author

Legal principles play a key role in the implementation of the activities of the Prosecutor's office and other law enforcement activities.

One of the fundamental principles is the principle of reasonableness of decision-making. This principle is applied in the activities of all law enforcement and regulatory authorities, but at the same time, there is no detailed regulation in regulatory legal acts.

Thus, the need for reasonableness of decision-making and actions of law enforcement officers says  The Federal Law of the Russian Federation dated 07.02.2011 N 3-FZ "On the Police", as well as the Federal Law "On the Prosecutor's Office of the Russian Federation", indicating the inadmissibility of arbitrary inspections. Article 7 of the Code of Criminal Procedure of the Russian Federation establishes the requirement of validity of acts of the prosecutor, investigator, body of inquiry, inquirer and court.

The fact that the court's decision should be not only lawful, but also justified, is stated in almost all procedural codes (Article 176 of the CAS of the Russian Federation, 195 of the CPC of the Russian Federation, 297 of the CPC of the Russian Federation), however, this concept is not disclosed by the codes. Neither the data nor any other acts contain regulation of this principle, which in practice leads to significant problems in its implementation, as a result, the Supreme Court of the Russian Federation provided explanations on this issue, and, in particular, indicated that the court's decision can be recognized as justified if it it is confirmed by circumstances that do not require proof, or by evidence examined by the court, which are relevant and permissible according to the requirements of the law, and also contains exhaustive conclusions of the court ^[1].

The theoretical study of the principle was also not given due attention. No specialized research has been conducted on this topic, only certain aspects of the implementation of this principle have been studied. Thus, the authors studied the implementation of the principle of validity during prosecutorial inspections ^[2], during criminal prosecution ^[3], in the administration of justice ^[4], its implementation in the activities of the Constitutional Court ^[5].

Meanwhile, the implementation of this principle in the activities of the prosecutor's office, the court and other law enforcement agencies is essential for the proper and effective exercise of their powers, since the principle of reasonableness is closely related to the principle of legality, due to the fact that it is impossible to determine the legality of a decision or action taken without appropriate legal and factual justification, in connection with which, the need for its study and further legal regulation is obvious.

Turning to the study of the concept of validity, it is worth noting that, in general, validity is defined as being confirmed by serious facts, arguments ^[6], and the principle of validity is interpreted as making a decision based on verified and reliable facts ^{[7, p.136]}. There are positions that define the principle of validity more broadly and also include consideration of both positive and negative consequences of decision-making ^{[8, p.191]}. Researchers also note a close connection between validity and objective truth ^{[9, p. 97]}. It should be noted that in this case we are talking about objective truth as a set of relative truths. At the same time, there are different approaches to determining validity in its connection with objective truth. Thus, some researchers consider objective truth and its validity as two different characteristics of a particular position ^{[10, p. 42]}, the second of which is recognized as subjective ^{[11, p.55]}. At the same time, there is another position in epistemology, according to which validity is considered as an objective characteristic of a position, which depends not on the subject, but on the relationship of the justifying position to the grounds justifying it ^[12].

The second position seems more acceptable, and, in turn, the principle of validity as a legal principle takes the form of a proportionality test ^{[13, p.91]}.

Based on the results of the study of scientific publications, one way or another analyzing the principle of validity ^[14,15,16], as well as decisions of higher courts, it seems possible to identify the following main characteristics of the principle:

- the decision-making in accordance with this principle should be based on circumstances indicating the need for its adoption. In order to avoid excessive formalization of this procedure, it seems optimal to use such a criterion as determining only the basic legal prerequisites for making a decision [p.9].

For the prosecutor's office, such circumstances will be the fact of violation of the law, state or public interests or the rights and legally protected interests of citizens; as for the activities of the court, the characteristics mentioned in the Resolution of the Plenum of the Supreme Court of the Russian Federation of 19.12.2003 N 23 are acceptable.

- the conclusion about the need to make a decision should be reasoned with reference to these circumstances and legal norms. According to some researchers, validity and motivation are closely related and mutually dependent concepts^[18].

Thus, the implementation of the principle of validity is based on the need to provide a legal and factual justification with the formulation of appropriate conclusions.

In the legal literature, the problem of the correlation between the normative regulation of justification and the empirical task of its establishment has been noted^[19]. Legal regulation of the procedure for justifying the adoption of a legal decision involves certain difficulties, since it is obvious that it can be carried out in two ways, each of which has its drawbacks in the implementation of legal norms in practice. The first of them involves the establishment of the most general criteria for making a decision, which, in turn, can lead to cases of arbitrariness and errors on the part of the subject accepting it. The second way, on the contrary, involves a more detailed regulation of the procedure for making a legal decision. Researchers note that this approach leads to infringement of discretion in the activity of the subject ^[20]. 

Based on the above positions on the correlation of validity with objective truth, it can be concluded that the desire to minimize subjectivism in the implementation of the principle of validity may lead to excessive formalization in the activities of the law enforcement entity, as a result of which, the identification of situations not covered by legal regulation and negatively affecting the state of protection of citizens' rights and legality, in turn, it will require further complication of the legal regulation of the justification procedure, as well as lead to a decrease in the effectiveness of the protection of citizens' rights and the number of detected violations of the law due to the implementation of a complex justification procedure.

This problem is clearly manifested in the activities of the Prosecutor's office, both in the implementation of its supervisory and non-supervisory functions. In particular, an attempt to regulate in detail the rationale for making a decision on the inspection planned by the prosecutor in practice led to many problems noted subsequently in scientific publications ^[21,22].

In particular, the innovations in Article 21 of the Law on the Prosecutor's Office instruct the prosecutor to conduct an audit if the information received by the prosecutor containing information about a violation of the law cannot be confirmed or refuted without conducting a prosecutor's check. Thus, based on a logical analysis of these norms, it can be concluded that the norms in question impose on the prosecutor the obligation to justify the impossibility of confirming or refuting this information without verification.

These requirements automatically cause the need for further development of criteria for recognizing the received information as confirmed or refuted, which, in turn, entails a number of questions.

In particular, in order to comply as closely as possible with the requirements of the law necessary to verify the above justification, its components should include the following criteria: evidence and absence of doubt in the qualification of the offense; the possibility of identifying the subject who committed it; the possibility of establishing the nature of the guilt of this person ^{[23, p.63]}. The need to fulfill this non-specified requirement leads to the fact that in practice prosecutors implement it in different ways, which leads to an appeal by supervised subjects of their actions. The difficulties that the legislator will face in further elaboration of the legal regulation of these criteria are obvious.

A striking example of an unsuccessful attempt at such a more detailed regulation of validity can be the attempt of the legislator to establish the criteria for justifying the prosecutor's appeal to the court in civil proceedings. Thus, in accordance with the norms of the CPC of the RSFSR, the prosecutor could apply to the court to protect the interests of citizens, society and the state, if necessary, to protect their interests without any restrictions. The CPC of the RSFSR did not establish for him the obligation to justify the need for his appeal. This provision contributed to the fullest realization of the principle of legality, since the prosecutor could respond to any violation of the law that he identified.

The CPC of the Russian Federation changed this provision, establishing for the prosecutor the obligation to substantiate the need for such an appeal, and fixed that the prosecutor can go to court to restore the violated legality and rights of citizens only if the citizen himself cannot go to court. At the same time, the prosecutor was charged with the duty of substantiating the impossibility of such an appeal, and failure to fulfill this duty entails leaving the application without movement or refusing to accept it.

The establishment of such an order required appropriate legal regulation, in connection with which, in the same article, an approximate list of circumstances was given confirming the impossibility of a citizen's appeal to the court independently – age, state of health, incapacity. Of these, only the last criterion is quite definite, because it has a normatively fixed procedure for stating this circumstance. As for other criteria, in practice they turned out to be inapplicable, since the legislator did not establish their exact framework. The same applies to "other valid reasons" referred to in Article 45 of the Civil Procedure Code of the Russian Federation. The practice of recognizing other reasons as valid has not developed in favor of protecting the rights of citizens. This situation has led to the fact that either prosecutors are forced to do extra work by filing claims that will be rejected, due to the recognition of such an appeal as unfounded, or initially prosecutors in connection with such a situation are forced to refuse to go to court in the interests of citizens.

Problems also arose in connection with an attempt to consolidate the obligation to substantiate the prosecutor's appeal to the court in defense of the interests of the state and an indefinite circle of persons. The CPC of the Russian Federation established the duty of the prosecutor to indicate in the application what the interests of the state and an indefinite circle of persons are, however, the lack of clarification of these concepts in practice also led to numerous refusals by the court to accept the application ^[24,25].

Thus, we see that attempts to legislatively establish more detailed criteria for justifying decisions taken by the law enforcement entity require further detailed legal regulation, which, when implemented, greatly complicates the procedure for legal regulation of such justification and decision-making itself. In addition, even a detailed explanation of the need for an audit or a prosecutor's appeal to the court cannot guarantee the effectiveness of the protection of rights, since there are no guarantees that all possible situations where such an appeal or verification is necessary will be covered. If such a study is not carried out, but only general criteria are specified, abuse or errors on the part of the decision-making entity are possible.

Meanwhile, the principle of reasonableness is a necessary basic beginning of the activities of the prosecutor's office and other law enforcement agencies, since it still allows you to significantly limit the scope for abuse of authority and the possibility of illegal use of legal means.

It seems that in this situation, it is more preferable to establish the most general criteria for the implementation of the principle of validity, since this approach allows not only to cover a wider range of detected violations of the law and citizens' rights, which may not be taken into account when trying to compile a detailed list of the grounds for the prosecutor's decision to protect rights, but also to avoid unnecessary work of the prosecutor's office and courts in the event that these criteria were insufficiently detailed and defined. In order to avoid abuses by prosecutors and employees of other law enforcement agencies, the legislator is currently taking measures in the form of establishing appropriate requirements for law enforcement officials and measures to monitor the implementation of their activities.

Thus, the basis for making decisions on the exercise of the powers granted by the prosecutor or officials of other law enforcement agencies should be based on the general characteristics of the principle of reasonableness indicated above.

It seems that in order to achieve the goals of the Prosecutor's office to protect the rights of citizens and restore the violated legality, this principle should be enshrined in the Law on the Prosecutor's Office as a general principle, by virtue of which the prosecutor's decision regarding the exercise of his powers to identify violations of the law and respond to them should be made on the basis of circumstances indicating a violation of the law or rights citizens and contain a conclusion about the need for its adoption with reference to these circumstances and legal norms.