Prosecutor's Waiver of Charges in Criminal Proceedings

Savos'kin Aleksandr Vladimirovich ORCID: 0000-0002-7112-6845 Doctor of Law Associate Professor, Head of the Department of International and Constitutional Law, Ural State University of Economics 620144, Russia, Sverdlovsk region, Yekaterinburg, 8 Marta str./narodnaya Volya, 62/45, office 750 savoskinav@yandex.ru

Soshnikova Irina Vladimirovna ORCID: 0000-0001-9463-1812 PhD in Sociology Associate Professor of the Department of Public Law, Ural State University of Economics 620131, Russia, Yekaterinburg, ul. 8 Marta/narodnaya str., 62/45, office 662 i.v.soshnikova@yandex.ru

Russian legislation provides for the right of the prosecutor to refuse to charge. In other words, at the stage of judicial consideration of a criminal case on the merits, the public prosecutor may refuse to charge the defendant. However, in the scientific literature and especially in practice, this authority is perceived extremely ambiguously and is practically not used.

There are many different opinions about the use by the prosecutor of the right to implement a reasoned decision to dismiss the charge. For example, V. Gorobets ^[1] and S. Boyarov ^[2] believe that the prosecutor should coordinate the rejection of the charge with the injured party in order not to restrict the constitutional right to justice. At the same time, T. Teterina ^[3] and A. Levi ^[4] believe that the aggrieved party should support the prosecutor as a party to the prosecution even when the latter decides to abandon the prosecution. The existence of similar approaches is noted by O. A. Zaitsev, leaning towards the second position ^[5].

We are more inclined to the opinion of the third group of scientists, such as I. Demidov and A. Tushev ^[6]. Their position combines the provisions of the first two approaches and involves taking into account the opinions of all persons involved in criminal proceedings (on the part of the prosecution). But, unlike the first approach, it does not imply that the prosecutor must obtain consent from the injured party to refuse the prosecution, since the victim may not have sufficient legal knowledge or may not be objective and interested in a certain outcome of the trial, while the public prosecutor must be impartial and fair when considering a criminal case. The prosecutor monitors the compliance of law and order in the proceedings, which is why he is endowed with such a right as the refusal of charges in criminal proceedings ^{[7; 8; 9; 10]}. When the prosecutor's refusal is declared in full, this is the basis for the termination of criminal proceedings or criminal prosecution in accordance with Part 7 of Article 246 of the Code of Criminal Procedure of the Russian Federation.

Based on paragraph 3.10 of the Order of the Prosecutor General's Office of Russia dated June 30, 2021 No. 376 "On the participation of prosecutors in the judicial stages of criminal proceedings", it can be concluded that the legislation does not specify at what stage of criminal proceedings the prosecutor has the right to exercise this authority ^[9]. However, if during the trial the public prosecutor comes to the conclusion that the presented evidence does not confirm the charge brought against the defendant, then he refuses to charge and sets out to the court the reasons for the refusal. The complete or partial refusal of the public prosecutor from the charge during the trial entails the termination of the criminal case or criminal prosecution in full or in its corresponding part.

For example, on May 29, 2017, the Zasviyazhsky District Court of Ulyanovsk issued a resolution on the termination of the criminal case due to the refusal of the state prosecutor to charge. The court's ruling states: "During the trial at the stage of judicial debate, after the court examined all the evidence presented by the parties, the state prosecutor fully refused the charges brought against Ivantsov A.V. under Articles 30 Part 3, 228-1 part 2 of paragraph "a", "b" of the Criminal Code of the Russian Federation (according to the episode of September 17 2007) — an attempt on the illegal sale of narcotic drugs, by a group of persons by prior agreement, on a large scale, due to the absence of corpus delicti in the act. At the same time, the state prosecutor outlined the reasons for refusing to charge in this part" ^[10].

As mentioned earlier, the prosecutor's refusal to charge may be complete or partial ^[11]. Analyzing the judicial practice, it can also be concluded that in the court of first instance, the refusal of the charge occurred extremely rarely, depending on the reasons for such a refusal. The partial refusal of the prosecutor to charge changes the limits of the trial according to Article 252 of the Code of Criminal Procedure of the Russian Federation and in practice its application is more common than the refusal in full. The website "Judicial and regulatory acts of the Russian Federation" for 2020-2021 published only eight decisions with the prosecutor's refusal to charge.

Another example: in the Shadrinsky District Court of the Kurgan region, giving a legal assessment of the defendant's actions, the court, in accordance with Parts 7 and 8 of Article 246 of the Criminal Procedure Code of the Russian Federation, took into account that the state prosecutor at the hearing changed the qualification of the defendant's actions on the crime of theft of property from paragraph "b" of Part 2 of Article 158 of the Criminal Code of the Russian Federation to Part Article 158 of the Criminal Code of the Russian Federation and cited the reasons for the qualification change, indicating that the signs of theft with illegal entry into the premises were not confirmed at the court hearing ^[12]. This is an example of the implementation of the prosecutor's right to partially waive the charge.

The main condition for the prosecutor's refusal to charge is that the evidence presented to the court does not confirm the involvement and guilt of the defendant. In such a situation, the public prosecutor refuses the charge and provides the court with a reasoned decision only after examining all the evidence in full, which leads to the objective termination of the criminal case.

In addition to the right granted by the public prosecutor to refuse to charge, the current legislation provides an exhaustive list of grounds for refusing charges provided for in Articles 24 and 27 of the Criminal Procedure Code of the Russian Federation.

These provisions of the law are aimed at protecting the rights, freedoms and legitimate interests of citizens who are charged without sufficient evidence. In the ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated December 23, 2005, No. 46-O05-60 ^[13], the defendants were accused of deliberate attacks on women previously unknown to them, with the use of violence dangerous to life and health, and murder in order to seize the property of the victims, as well as rape and subsequent murder the victim. After the investigation and evaluation of all the evidence, it was established that the defendants were not involved in these crimes, then the prosecutor refused to charge and the criminal case against the defendants was terminated. Observing the norms of criminal procedure law, the state prosecutor, having objectively assessed the evidence, came to the conclusion that the defendants were not involved in the commission of a crime, with which the court agreed. In accordance with Part 7 of Article 246 of the Criminal Procedure Code of the Russian Federation, if the prosecutor during the court session, after examining all the evidence in the case, came to the conclusion that the accusation against the defendants is not supported by the evidence presented, then the public prosecutor has the right to refuse such an accusation.

Having studied judicial practice, there are situations when the defendant does not agree with the prosecutor's decision to drop the charge. The defendants filed complaints against court rulings on the termination of criminal proceedings. Since this norm and the decision of the prosecutor deprives the defendant of exercising his legal rights to judicial protection and acquittal, although the rights to rehabilitation and compensation for damages from criminal prosecution are still preserved according to Part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation. This means that not only the prosecution side represented by the victim, but also the defense side represented by the defendant, may disagree with the exercise of the right to refuse prosecution by the prosecutor. Is it worth taking into account the opinion of other persons involved in the trial when considering and resolving a criminal case?

In this matter, we also adhere to a combined approach: the consent or disagreement of the victim or the defendant is not mandatory, but must be taken into account in conjunction with the evidence presented during the court session, as a result of which the prosecutor's position on the rejection of the charge is formed.

In our opinion, when applying the right to refuse public prosecution, the prosecutor by his actions actually deprives the victim of the constitutional right to judicial protection. It can be assumed that this provision cannot be called fair. As a result, the scope of procedural guarantees of the victim's rights differs depending on the stage of criminal proceedings and the severity of the crime committed. It turns out that in the trial the victim has no chance to continue the proceedings in a specific criminal case. A similar opinion is shared by a team of authors led by V. M. Lebedev, who in his scientific and practical comments on the Criminal Procedure Code of the Russian Federation emphasized this exception in the position of the injured party when the prosecutor refuses to charge ^[14].

We should not forget another important procedural feature of the rejection of charges by the public prosecutor. The prosecutor may waive the charges only when all the evidence presented in the criminal case under consideration has been examined. Only upon completion of the collection and provision of all evidence, their study and research, after hearing the positions of participants in criminal proceedings in a particular case, the prosecutor has the right to make a decision to dismiss the charge. Based on the examples that were given earlier, it can be concluded that the court is obliged, in turn, to check the legality, validity and fairness of such a refusal by the prosecutor. Also, this decision of the public prosecutor, which is the basis of the decision of the court of first instance, can be checked in the appellate instance.

It can be concluded that in the criminal process, when the prosecutor refuses to charge, it is important to observe a certain order and procedure, the basic principles of the criminal process, in order to make a decision. At the same time, the public prosecutor should take into account the opinions of the victim and the defendant. Exercising the right to refuse to charge, the public prosecutor must have a clear understanding of everything that is happening and consider the evidence presented at the court session with special care in order to prevent falsification of evidence from anyone's side.

Before making a decision to drop the charge, the prosecutor must form a conviction in the correctness of his decision and formulate the grounds for such a position. At the same time, there is an internal contradiction between the conviction regarding the guilt of the defendants, which the prosecutor formed at the time of sending the case to court, and the conviction that he had at the time of completing the examination of evidence in court. The refusal to charge in court may indicate a low quality of the prosecutor's supervision of the preliminary investigation (although this circumstance is not necessarily the reason for the refusal of the charge), and therefore the adoption of an appropriate decision for the prosecutor can be extremely painful (both from a psychological point of view and from the point of view of stating the fact of voluntary or involuntary, but insufficient competence of the prosecutor at the stage of preliminary investigation. Therefore, it is quite natural that in judicial practice it is not often possible to see a decision on the termination of a criminal case in connection with the refusal of the public prosecutor to charge. For a prosecutor, making such a decision is not only a great responsibility, but a serious moral choice between the interests of justice and narrow departmental interests.