On the mandatory consent of the prosecutor and the victim to use a special procedure for resolution of the criminal case under Ch. 40 of the Russian Federation Code of Criminal Procedure

The article deals with the problems arising from the application of a special procedure for the resolution of criminal cases and analyses the need for mandatory consent of the prosecutor and the victim to use a simplified method of resolving the criminal case. As is set in Part 1 Art. 314 of the Russian Federation Code of Criminal Procedure, to consider the criminal case according to the procedure described in Ch. 40 of the Russian Federation Code of Criminal Procedure under special circumstances, it is necessary to get the prosecutor's and the victim's consent, otherwise the court is obliged to go to the general, usual procedure of the resolution of the criminal case. However, prescribing the mandatory character of the consent, the legislator says nothing about the motives of the victim and the prosecutor that encourage them to deny the use of the simplified procedure of judicial resolution of the criminal case. The study of criminal cases tried by the courts of Tyumen and Moscow Regions, Krasnodar and Khabarovsk Territories and other subjects, it was established in deciding whether to give a consent to the special procedure, prosecutors were guided by their idea of social danger of the crime (38.7%), data representing the personality of the defendant (63.4%). 17.6% of the respondents motivated their decision by the assessment of judicial prospects in the criminal proceedings according to the general procedure and the proof of the crime. It is no secret that the position of the prosecutor, who participates in the case, in many respects, is shaped by supervising prosecutors, who, being aware of possible substitution of the general procedure by the special one, give "recommendations" of what the share of sentences passed according to the special procedure should be in the corresponding subject of the federation. The victims in 67.8% cases do not agree to the simplified procedure because of unpaid compensation for material damage caused. The motive for 57.3% victims to refuse from the special procedure is also the commitment for the defendant to get the most severe punishment, i.e. victims assume that they agree to the mitigated punishment rather than to "the simplified procedure". The majority of the surveyed practitioners, namely 81.11% judges, 83.83% prosecutors, 81.74% defenders - believe that it is not reasonable to restrict the victim's participation in the choice of legal procedure (general or special). The situation is different concerning the participation of the prosecutor in this choice: 93. 54% of defenders and 67. 66% of judges believe that the participation of the prosecutor should be limited, while 83. 83% of prosecutors are against such restrictions. We believe that these results can be explained by the specificity of the respondents' professional activity, while the position of judges and defenders is caused largely by the fact that the prosecutors involved in the case often fail to provide convincing reasons for the choice of the procedure type.

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