Return of a criminal case by the court for further investigation: 150 years of history, theory, practice

The article discusses the formation and development of the institution of transfer of the criminal case by the court to the prosecutor for further investigation in the Russian criminal procedure. The study of conditions for the transfer of the case for further investigation during the judicial reform of 1864 shows that it was not an element of investigative process, serving only the interests of the preliminary investigation. It was intended to ensure the defendant's right for defense. The final formation of the transfer of the criminal case for further investigation as an institution was when the Russian Soviet Federative Socialist Republic adopted the Criminal Procedure Code in 1960. This institution combined various bases for the transfer designed to address diverse problems. It can also be noted that the changes occurred with the transfer of the case for further investigation turned to be negative when this institution was applied in practice. The article provides a critical analysis of the decisions of the Constitutional Court of 2nd July 2013 № 16-P. On the one hand, this decision, according to the author, aims at solving the problem of the need to change the charges in court towards worsening the defendant's position. On the other hand, it gives rise to a number of theoretical and practical issues. According to the author, the criminal procedure in Russia needs systemic changes. First, as part of these changes, the institute of transfer of the criminal case by the court for the prosecutor to change the charges for a serious or substantially different in actual circumstances must be designed separately from the institution of the transfer of the criminal case to eliminate substantial criminal procedural violations. Secondly, such transfer shall be permitted only if the prosecutor or the victim applies for it. Third, there shall be full prosecutorial supervision over preliminary investigation as a guarantee of legality of the investigative activities.

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