КРИТЕРИИ ОТНЕСЕНИЯ ПРЕСТУПЛЕНИЙ К ДЕЛАМ ЧАСТНОГО ОБВИНЕНИЯ

Abstract

The paper analyses the legal nature of criminal cases of private prosecution. Based on the principle of publicity of criminal proceedings it is argued that these cases also have a publiclaw nature. Manifestation of discretion in cases of private prosecution is limited only to the right of the victim to initiate criminal proceedings and its termination through reconciliation with the accused. In all other aspects, private prosecution cases are subject to the rules of publicity. In particular, the victim has no other means of disposing of the fate of the case than reconciliation. In view of the above, the statement about the identity of criminal cases of private prosecution with civil lawsuits is criticised. The author analyzes the views expressed in science regarding the scope of private prosecution. It is argued that significant expansion of private prosecution contradicts the objectives of criminal proceedings, and therefore is inadmissible. The paper formulates criteria for including crimes into the category of private prosecution cases. The first criterion is that in the course of the crime the interests of a particular person are primarily encroached upon, and the public interest only to a minimal extent. At the same time, the victim should not suffer serious negative consequences. With these factors in mind, it is up to the victim to assess the criminal nature of the act. The second criterion is the preventive nature, i.e. preventing the commission of similar, more serious crimes as a result of criminal prosecution. The third criterion is the possibility of collection of evidence by a victim who does not have state power. Cases of private prosecution should not include those where seizure of physical evidence is required. The fourth criterion is the possibility of autonomous resolution of the conflict through reconciliation between the victim and the accused. In this case, the law should provide for a conciliation procedure. Private prosecutions should have the ultimate aim not of convicting the perpetrator, but of ending the criminal case. This is how the prevention of private prosecution of offences is achieved. On the basis of these factors, it is appropriate to classify offences against the person and personal rights as private prosecution cases. At the same time, specific decisions on the private nature of criminal prosecution should be made through analysis of individual offences. These studies require a systematic approach and should be carried out jointly by specialists in criminal law and criminal procedure.