The Modern Institution of the Prosecutor's Refusal to File Charges against a Suspect: Crisis of Authenticity of the Russian Criminal Process

The paper examines the issues of effectiveness and viability of the modern Russian institution of prosecutor’s refusal to bring charges. The author substantiates the conclusion that it is formed to a greater extent in the spirit of Anglo-Saxon legal logic, while neither normative nor doctrinal correlation with the basic principles of domestic criminal proceedings has been implemented. The legal institution in question is a vivid example of conceptual, axiological legal contradictions in the Russian criminal process, which makes it difficult to clearly define its modern model and the vector of its further development. For methodological purposes, the modern Russian institution of the prosecutor’s refusal to charge was analyzed in relation to the trial with the participation of jurors. This made it possible to more fully identify the relevant shortcomings and identify areas for improvement. As a result, the following conclusions were substantiated: it would be advisable to deprive the prosecutor’s refusal to bring charges of binding force for the Russian court. At the same time, the adversarial foundation of the trial is not limited here in any way, since the prosecutor should have the opportunity to convey his position to the court following the results of the judicial investigation. In general, the proposed approach will act as a reliable guarantee of the rights of the victim, including access to justice, and serve to ensure the constitutional right of Russians to participate in the administration of justice, strengthen the independence and completeness of the judiciary. As a result, using the example of the institute under study, we can talk about the need to return to the authenticity of Russian criminal proceedings in the spirit of continental legal traditions.

1. Bobrishchev-Pushkin AM. Empirical Laws of the Activity of the Russian Jury. Moscow: Book on Demand; 2013. (In Russ.).

2. Bozrov VM, Popova EV. The Prosecutor’s Refusal to Indict. Russian Law: Education, Practice, Science. 2019;6:46- 51. (In Russ.).

3. Burnham W. The Legal System of the United States of America. Moscow: Novaja justitsija Publ.; 2006. (In Russ.).

4. Course of criminal procedure. Moscow: Statut Publ.; 2021. (In Russ.).

5. Esakov GA. «Nullification» of the criminal law in court with the participation of jurors. Criminal Law. 2013;2:121- 129. (In Russ.).

6. Foinitskiy IYa. Course of criminal proceedings. Vol. 2. St. Petersburg; 1996. (In Russ.).

7. Golovko LV. Institutions of the prosecutor’s refusal to bring charges and changing the charges in court: Post- Soviet prospects in the context of theoretical misconceptions. State and Law. 2012;2:50-67. (In Russ.).

8. Golovko LV. Participation of the state in criminal proceedings: from «equality of arms» to realistic concepts. State and Law. 2020;6:107-118. (In Russ.).

9. Karnozova LM. The revived jury trials. The concept and problems of development. Moscow: Nota bene Publ.; 2000. (In Russ.).

10. Koni AF. Memories of the case of Vera Zasulich. Law and Justice. Articles and Speeches. Moscow: Eksmo Publ.; 2013. (In Russ.).

11. Koni AF. Moral principles in criminal proceedings. Selected works. Moscow: Gosyurizdat Publ.; 1956. (In Russ.).

12. Koni AF. Techniques and tasks of prosecution. Selected works. Moscow: Gosyurizdat publ.; 1956. (In Russ.).

13. Lyakhov YuA, Malina MA. The essence of the constitutional right of a citizen to participate in the administration of justice. North Caucasian Legal Bulletin. 2019;1:130-138. (In Russ.).

14. Malina MA. The Use of Specialized Knowledge in Criminal Proceedings in Russia: Procedural Aspect. Russian Investigator. 2023;1:20-24. (In Russ.).

15. Mittermeier K. European and American Jury Trials, Their Activities, Advantages, Disadvantages, and Means of Eliminating These Disadvantages. Trans. from the latest Germ. edition. Issues 1–2. Moscow: D. Dril Publ.; 1869. (In Russ.).

16. Nasonov SA, Yarosh M. Verdict of the Jury. Moscow: R. Valent publ.; 2003. (In Russ.).

17. Pashin SA. Posing Questions Before the Jury. Adversarial Justice. Works of Scientific and Practical Laboratories. Moscow: Publishing House of the International Committee for Assistance to Legal Reform. 1996:1(1):89-124. (In Russ.).

18. Pradel J. Procedure penale. 15 ed. Paris: Cujas; 2010.

19. Sluchevskiy VK. Textbook of Russian criminal procedure: Judicial system — legal proceedings. St. Petersburg; 1913. (In Russ.).

20. Spirin AV. On the prosecutor’s right to dispose of the prosecution. Vestnik of the East Siberian Law Institute of the Ministry of Internal Affairs. 2020;4:149-158. (In Russ.).

21. Strogovich MS. Course of Soviet criminal procedure. Moscow: Publishing House of the USSR Academy of Sciences, 1958. (In Russ.).

22. Strogovich MS. The right of the accused to defense and the presumption of innocence. Moscow: Nauka Publ.; 1984. (In Russ.).

23. Strogovich MS. Problems of judicial ethics. Moscow: Nauka Publ.; 1974. (In Russ.).

24. Vetrova GN. Jury Trial and the Problem of Criminal Procedure. Bulletin of Moscow University. Series «Law». 1999;3:24-29. (In Russ.).

25. Vladimirov LE. The Doctrine of Criminal Evidence. Tula: Autograph Publ.; 2000. (In Russ.).

26. Zhumakanova NA. The prosecutor’s refusal to bring charges: issues of theory and practice. Author’s Abstract. Cand. Sci. (Law). Yekaterinburg; 2014. (In Russ.).