Institute of Returning a Criminal Case to the Prosecutor in the System of Criminally-Remedial Means, Ensuring the Victim's Right to Protection from Crime and Access to Justice

Abstract

The article deals with current and controversial issue in the criminal science, specifically the need for the Russian criminal justice process to have an institute to return a criminal case to the procurator at the stage of appointment and preparation of the court hearing. The author emphasizes that during the continuance of RSFSR Code of Criminal Procedure, a special emphasis was put on it as a guarantee of the delivery of justice and the rights of the participants in the proceedings, that put in place the arrangements necessary for an effective court trial. The goal of modern judicial reform is to establish an independent judiciary whose main function is the delivery of justice which can be implemented in criminal proceedings only in adversary criminal proceedings. Since the beginning of its implementation, attitudes towards the institution of returning a criminal case by a court to a procurator to correct lacunae, loopholes, contradictions, irregularities or flaws in pre-trial proceedings have changed dramatically. It is perceived as an attribute of the courts prosecutorial activities, which is inconsistent with its new role as an independent body to resolve legal disputes between a state and an individual awaiting for a founded and equitable decision from the court. Despite critical rhetoric towards the institution of returning the criminal case to the prosecutor, the author argues that it is necessary due to specific status of the first judicial phase in a staged system of Russian criminal justice process. This institute creates conditions for monitoring and verification activities of judges at this stage, and the corresponding authority of judges to determine the future course of criminal cases brought before the courts. However, the author concludes that the task of rectifying the shortcomings of the prosecution can be addressed at the preliminary hearing introduced by the Code of Criminal Procedure of the Russian Federation to resolve various contentious issues. When it is impossible to remove the obstacles that prevent the court from conducting a trial, the judge may, taking into account the views of the parties, decide to return the case to the prosecutor.

The goal of the methodology for legal regulation of victim protection

“…In this regard, one should agree with civilians that "any fruitful, effective research should begin with the establishment of methodological principles and framework of work" [6, p. 14]. Currently, there is a certain spread of the comparative research method that is focused on studying foreign legislation, law and practice of its application [5, p. 19]; digitalisation method [7] of criminal procedure and self-reflection [8]; the method of historical knowledge [9], syntagmatics and paradigmatics [10]. It should be noted that the penetration of methods from related (non-legal) sciences into the science of criminal procedure, such as sociology, mathematics and economics has become an upcoming trend.…”

Alteration of court charges: ways of legislative solution of the problem

“…Most legal scholars recognise inconsistency, deficiency and inefficiency of the procedural rules regulating the grounds and the procedure for returning cases to the prosecutor; they also point to significant transformation of this institute towards approximation to the institute of supplementary judicial investigation [6][7][8]. At the same time, some authors favour such approximation [7] or advocate complete restoration of the procedure of the court's referring a case for supplementary investigation [9][10][11]; the others call for maintaining the existing order, considering it more acceptable and optimal [12,13]; still others propose new forms of altering charges in the course of judicial proceedings [14][15][16].…”