Ways to reform the institution of private prosecution in Russia

Nakib Daniel' Viktorovich ORCID: 0009-0003-3140-4577 Justice; Judicial district No. 5 of Armavir, Krasnodar Territory 146 Rosa Luxemburg str., Armavir, Krasnodar Territory, 352900, Russia dnakib@mail.ru

In the modern legal science of criminal law and procedure, opinions have been existing and developing for quite a long time about the need to exclude the institution of private prosecution from the regulatory framework. This is due to the fact that the law enforcement officer in practice quite often faces a number of difficulties in the production of cases in this category. The main layer of problems in the consideration of private prosecution cases lies in the special procedural status of the participants in such a process, their level of legal awareness, legal training and social status.

The institution of private prosecution has existed throughout the development of criminal proceedings, starting from the moment of its actual formation as a result of the judicial reform of 1864. According to the Statute of Criminal Procedure adopted in 1864, the introduction of the institution of magistrates was accompanied by the definition of private prosecution cases, granting special procedural status to participants in such a process, including representatives of the prosecution and defense, with the establishment of conciliation procedures. A clear list of cases related to the cases of this category has been identified: cases of insults to honor, dignity, humiliation and violence, and others.

Later, the range of private principles in criminal proceedings was often modified, but in modern Russian history there was no period that completely excluded the institution of private prosecution from the criminal law. It is not for nothing that I. Y. Foynitsky noted that private prosecution is the oldest form of organizing the process and protecting human and civil rights and freedoms, which "gives legal satisfaction to the victim's natural sense of resentment as a result of the crime committed against him" ^[1].

In modern Russian criminal law, there are both supporters of the preservation and development of the institution of private prosecution, as well as its opponents, who petition for its liquidation and criticize this form of prosecution for its low effectiveness and limited availability of judicial protection of citizens' rights.

The Code of Criminal Procedure, in Article 321 of the Code of Criminal Procedure of the Russian Federation, establishes a clear procedure for the consideration of private prosecution cases by magistrates, according to which a criminal case is considered in a general manner with the exceptions established by this article ^[2]. The peculiarity of criminal proceedings under the jurisdiction of a justice of the peace is that the trial must begin no earlier than 3 and no later than 14 days from the date of receipt by the court of the application or criminal case ^[3]. The use of a three–day period as a starting point for the start of proceedings in a private prosecution criminal case seems impractical due to the need for a seven-day period for notifying the parties involved in private proceedings.

Turning to the status of a private complainant, I would like to note that the legislator granted the applicant the special procedural status of a "private prosecutor", which in fact equated in criminal proceedings to the status of a public prosecutor. At the same time, granting a special legal status to the specified person does not contribute to the definition of "special" legal ways of collecting evidence. Due to the lack of legislative requirements for obtaining the status of a "private prosecutor" in practice, the entire collection of evidence boils down to petitions to the court for the recovery of evidence, the appointment of expertise (for the court to send instructions and requests to bodies of inquiry, investigation, government authorities, public associations and organizations), despite the fact that the level of procedural literacy of the applicants Petitions remain extremely low and often do not lead to the collection of the necessary evidence base for the formation of a line of accusation ^[4].

This problem is seen in the need to specify the procedural powers of a private prosecutor and amend Part 2 of Article 43 of the Criminal Procedure Code of the Russian Federation, stating it as follows: "A private prosecutor has the right:

– to support the private prosecution and present to the court his opinion on the merits of the charge;

– to withdraw from the charge or to change part of the charge, if this does not worsen the situation of the defendant and does not violate his right to defense.;

– reconcile with the defendant at any time before the court is removed to the conference room;

– collect and present evidence;

– file petitions and challenges;

– have a representative;

– to make suggestions on the application of the criminal law and the imposition of punishment on the defendant;

– receive copies of decisions on termination of the criminal case, suspension of criminal proceedings, as well as copies of the verdict of the court of first instance, decisions of the courts of appeal and cassation instances;

– to speak in court arguments;

– to get acquainted with the minutes of the court session and submit comments on it;

– bring complaints about the actions of the court;

– to know about the complaints and representations brought in the criminal case and to bring their objections to them;

– file and maintain a civil claim;

– exercise other powers provided for by this Code."

It seems necessary to pay attention to the problems that arise when the world courts consider cases of private prosecution in accordance with Part 1 of Article 314 of the Criminal Procedure Code of the Russian Federation, in a special manner, which often entails a number of negative consequences.

In cases of private prosecution, where, as a general rule, there is no preliminary investigation at all, the duty to explain to the accused the right to request a trial in a special manner lies with the court. As explained by the Supreme Court of the Russian Federation in Plenum Resolution No. 60 of December 5, 2006 (paragraph 8), a petition in such a situation can be filed between the moment the accused is given a copy of the victim's statement and before the court decides to order a trial ^[5].

The special procedure of the trial is clearly regulated and involves passing a verdict without evaluating and examining the evidence collected in the criminal case, the final judicial act in this case will contain only a description of the crime event. All evidence provided by a private prosecutor when filing an application cannot be verified by a court for reliability, relevance and admissibility ^[6]. In such circumstances, if the accused agrees with the charges brought by the private prosecutor, the court will decide the verdict based in fact only on the arguments of the private prosecutor.

In addition, due to the absence of norms in this procedure for the administration of justice similar to Part 5 of Article 217 of the Code of Criminal Procedure of the Russian Federation, it is the justice of the peace who is obliged to explain to the accused both the right to file such a petition and its legal consequences. The norms of Parts 3-6 of Articles 319 of the Code of Criminal Procedure of the Russian Federation, in principle, do not regulate the specified algorithm of actions and decisions of the justice of the peace ^[7].

Taking this into account, the accused is not given even the slightest time to study the application and form a position on the expediency of applying a special procedure for considering a criminal case.

A study of the practice of considering cases of private prosecution in the Krasnodar Territory, based on statistical data from the Judicial Department of the Krasnodar Territory, found that in 2023, 220 criminal cases of private prosecution were submitted to magistrates for consideration at first instance (in 2022 – 221, in 2021 – 193), of which 134 cases or 60.9% were They were initiated by the courts based on applications submitted directly by citizens (in 2022 – 155 cases or 70.1%, in 2021 – 136 cases or 70.4%). In total, 64 persons were convicted and 26 persons were acquitted during this period (in 2022, 43 persons were acquitted, 13 persons were acquitted; in 2021, 52 persons were convicted, 14 persons were acquitted). 16 cases were terminated on rehabilitative grounds (33 in 2022, 29 in 2021), 92 on other grounds (86 in 2022, 113 in 2021). During the period of 2023, 17 cases were considered in a special procedure for the trial of private prosecution (in 2022 – 9, in 2021 – 14) ^[8].

Separate clarifications of the Supreme Court of the Russian Federation, reflected in Plenum Resolution No. 60 of December 5, 2006, eliminated a legislative gap in the form of deprivation of the defendant's right to a special procedure for judicial proceedings in the framework of private prosecution cases. At the same time, a special procedure presupposes not only a full admission of guilt by the defendant, but also a full understanding and awareness of the crime committed and the procedural actions performed within the framework of the "truncated" consideration of the criminal case ^[9].

When conducting a criminal case on a private charge, the defendant often has no understanding at all why he was summoned to court, and therefore the defendant's statement and consent to consider the criminal case in a special proceeding simply deprives him of the right to an objective and high-quality consideration of the case.

In this regard, given the low statistical indicators of the consideration of criminal cases of private prosecution in a "special" procedure, the problems of proof, the low legal qualifications of the accused, which do not allow them to fully understand the essence of what is happening in the process, it seems necessary to completely abandon the legislator's special form of judicial proceedings when considering a criminal case of private prosecution ^[10].

To date, there are two positions of scientists in Russian legal science regarding the reform of the institution of private prosecution.

The first group of scientists advocates the complete elimination of private prosecution, arguing as follows:

- The difficulty of drafting an application that meets the requirements of the law for a citizen who does not have legal knowledge ^[11].

- The need to qualify the act by the justice of the peace himself, which raises questions from the point of view of compliance with the principle of adversarial parties ^[12].

- The process of implementing the institution of private prosecution in the Russian criminal process has a low effectiveness in protecting the violated rights and legitimate interests of citizens.

We should agree with M. O. Razueva that this reform cannot be solved hastily, without deep and comprehensive scientific forecasting of the consequences of such an action, without studying and detailed analysis of judicial practice ^[13].

The most correct direction seems to be the direction in which the institution of private prosecution should be reformed in order to increase guarantees of the rights and freedoms of citizens when considering cases of this category.

Thus, an integral distinguishing feature of the consideration of criminal cases by way of private prosecution is the absence of an important condition for the consideration of criminal cases - the mandatory participation of a defense lawyer. Of course, the court has an obligation to find out from the defendant about his desire to involve a defense lawyer in the case, but there is no need to ensure the appearance of a lawyer in the process. Thus, the guarantees provided by the Code of Criminal Procedure of the Russian Federation for the protection of the rights and legitimate interests of convicts are seen to be diminished.

Based on the above, failure to provide the defendant with a defender (lawyer) in the criminal process of private prosecution is seen as a violation of the provisions of Part 2 of Article 19 of the Constitution of the Russian Federation, which enshrine the equality of human rights and freedoms.

Thus, the legislator must take all necessary measures to eliminate this violation and equalize the institution of the participation of a criminal defense attorney in private prosecution cases with public and private-public cases.

N. V. Azarenok also suggests keeping the private prosecution, filing an application directly to the court, but conducting a preliminary check on each application by the body of inquiry ^[14].

This point of view cannot be treated critically, since in practice all statements about crimes are subject to preliminary verification by investigative authorities, for each material the head of the investigative body decides whether the committed act belongs to the category of private prosecution cases, and an appropriate decision is issued to refuse to institute criminal proceedings and send these materials to the world court of jurisdiction ^[15]. In this case, the injured person is informed of the right to file an application to the magistrate's court for the initiation of a private prosecution case. In this regard, there is no need to legislatively fix the norm on the obligation of conducting inspections by bodies of inquiry.

V. V. Solodovnik suggests expanding the grounds for sending an application to the head of the body of inquiry. The formulation of the grounds is proposed to be legislatively fixed as follows: "If it is necessary to identify the person being held criminally liable or to collect evidence, the justice of the peace refuses to accept the application for his proceedings and sends the said application to the head of the body of inquiry, which notifies the person who submitted the application" ^[16].

The reflected point of view also cannot be applied in practice. In particular, the expansion of the judge's powers to demand evidence by sending instructions to the body of inquiry will allow us to talk about the accusatory bias of such a trial, which contradicts the principle of adversarial parties. Currently, the question remains unsolvable as to from what point a person is considered to be an accused and a defendant in criminal cases of private prosecution ^[17]. The answer to this question has not yet been found.

Is it lawful to involve a person as a defendant immediately after the acceptance of a private prosecution statement to the proceedings of a justice of the peace? N. S. Manova and co-authors believe that from the moment a justice of the peace accepts an application for bringing a person to criminal responsibility in private prosecution, the person against whom the application is filed automatically becomes an accused ^[18]. T. Y. Vilkova holds a different opinion, considering that in cases of private prosecution, the defendant appears from the moment of handing over or sending him a copy of the statement explaining his rights ^[19].

A. I. Bastrykin's opinion is currently more applicable to modern judicial practice, and therefore it seems necessary to amend Chapter 7 of the Criminal Procedure Code of the Russian Federation. A person against whom an application has been filed to bring him to criminal responsibility as a private charge would be more correctly called a suspect, since, by virtue of the provisions of Article 47 of the Code of Criminal Procedure of the Russian Federation, at this stage of the criminal process there can be no question of granting this person the status of a defendant and an accused ^[20].

When conducting criminal cases of private prosecution, it is considered necessary to pay attention to such concepts as "accused" and "defendant", and to introduce a new special status of the subject: "private accused", which will be assigned from the moment the statement is handed to the accused person until the end of the judicial investigation.

Summing up, I would like to note that the institution of private prosecution cannot be eliminated, it is a full-fledged original institution of criminal procedure law. The basic principles of private prosecution - initiation only at the request of the victim and the obligation to terminate them in the event of reconciliation of the parties - must be preserved. The reform of the procedure for proceedings in cases of private prosecution should consist in eliminating the requirements for the content of a statement in cases of private prosecution to a justice of the peace and expanding the grounds for sending an application to the preliminary investigation authorities.