Some problems of involvement of preliminary investigation agencies in criminal proceedings in private prosecution cases

The problems of involvement of preliminary investigation agencies in criminal proceedings in private prosecution cases have not beensolved either in science or in legislation yet. In this connection the most controversial issues are those relating to the participation ofpreliminary investigation agencies in the examination of pretexts and grounds for bringing the criminal private prosecution case beforethe court, as well as the problems of making a list of grounds for conducting a preliminary investigation in private prosecution cases. Inthe course of the analysis of these topics the author comes to the following conclusions. Firstly, the preliminary investigation agenciesofficials have the right to check the pretexts and grounds for bringing the criminal private prosecution case before the court both at therequest of the injured party and on their own initiative. If there are no grounds for conducting of a preliminary investigation but there isa request of the injured party, the investigator (inquirer) should either inform the justice of peace in the order provided by Item 3, Part 1,Article 145 of the Criminal Procedure Code of the Russian Federation, or pass a resolution abandoning the institution of criminalproceedings according to Item 5, Part 1, Article 24 of the Criminal Procedure Code of the Russian Federation. The norm of Article 318of the Criminal Procedure Code of the Russian Federation should be supplemented by a provision stipulating that the institution ofcriminal proceedings on private prosecution can be exercised by reference to the justice of peace of all the materials of preliminaryexamination, containing a preliminary appeal of the injured party to the agencies with a request to institute criminal proceedings againsta person. Secondly, the norm of Part 4, Article 20 of the Criminal Procedure Code of the Russian Federation has been formulatedincorrectly and needs some broadened interpretation. In our opinion, the circumstances specified in the norm above should beconsidered not only as the grounds for instituting criminal proceedings without the consent of the injured party, but also as the reason torefer the function of prosecution to public officers. Moreover, the institution of criminal proceedings without the consent of the injuredparty should take place provided that it has no possibility to form and express a position connected with the questions of criminalprosecution consciously and freely. Public officers can prosecute on the basis of a broader range of cases, e.g., when the injured party isnot able to protect its rights and legal interests due to its limited physical possibilities. Besides, the injured party should have the right tochoose the procedure of criminal prosecution within the frame of the criminal procedure in private prosecution cases.

Keywords

Authors

References