Private Prosecution Research Articles

The Prosecutor’s Evolution

Abstract It is axiomatic that American prosecutors possess significant discretion. What varies among prosecutors is how they use their discretion. How they use their discretion derives from how prosecutors perceive their role. Different prosecutors perceive their role differently. Some see themselves as representing the victim and others see themselves as ensuring just outcomes. These differences emerge from the American prosecutor’s distinct evolution. Over 200 years, the American prosecutor has transformed through various stages. The private prosecutor, an attorney the victim hired, originated from the British system. With the expansion of democratic institutions, the prosecutor became political, representing a particular political party’s interests. Abuses led to prosecutors becoming more professional, representing the state. This disconnected prosecutors from their community. Proactive prosecutors emerged to reconnect prosecutors to their community. Then, in 2016, a new wave of prosecutors emerged. These prosecutors saw themselves protecting defendants from a punitive criminal justice process. This article explores these different perspectives, looking for commonalities that can define the American prosecutor’s identity. Three emerge. First, prosecutors are public servants. Though they may serve different publics and do so in different ways, all seek to serve public interests. Second, they represent the community. Prosecutorial policies and case selection derive from community values and priorities. Finally, prosecutors are opportunistic. When given the opportunity to expand their discretion

О некоторых проблемах рассмотрения уголовных дел частного обвинения

The presented article is devoted to topical problems related to the initiation and consideration of criminal cases of private prosecution. The positive and negative aspects of this institute, the expediency of its further existence and development are analyzed. The author substantiated the arguments in favor of its abolition. Ways are proposed to solve the identified problems aimed at simplifying citizens’ access to justice and further humanizing criminal legislation.

프랑스·독일·일본에서의 범죄피해자의 형사절차 참가제도와 우리나라에 대한 시사점

France and Germany, that have adopted private prosecution or recognize private participation in litigation, guarantee crime victims the right to participate in criminal proceedings, allowing them to seek redress and protect their rights. However Japan and Korea, which operate criminal procedures based on the principle of state prosecution, perceive the state criminal procedures as an adversarial relationship between the criminal justice agencies and the criminals, and views crime victims as mere objects of protection and support or as targets of preferential measures. Recently, Japan has introduced a system that guarantees crime victims the right to participate in criminal proceedings to a limited extent. Korea attempted to revise the law to introduce a victim participation system that was much weaker than that of France or Germany, and even Japan, but it was ultimately frustrated. Whenever the neglect of the protection of the human rights of crime victims becomes a social issue, the Korean government has established and implemented measures to strengthen the rights of victims. However, except for victims of crimes that attract social attention, such as sexual assault or stalking, the poor status of victims of crimes such as murder, assault, and fraud has not improved much. With only these intermittent and sporadic measures, it is difficult to properly fulfill the state's duty to protect crime victims. In order to improve the poor status of victims, it is necessary to create a principle provision on the protection of suspects' rights and participation in criminal procedures in the Constitution, and declare at the beginning of the Criminal Procedure Act that the rights of crime victims should be protected. And then a device must be established to protect crime victims in a series of criminal procedures such as investigation, prosecution, trial, and execution of sentence. In particular, it is necessary to build a system that stipulates the right of crime victims to express their opinions at each important stage of the criminal procedure, such as the conclusion of the investigation, decision not to prosecute, decision on detention, pronouncement of judgment, and suspension of execution of sentence, and to notify the progress of the criminal procedure.

The Importance of the Institution of Private Prosecution for the Protection of Victims of Domestic Violence

Introduction: the presented paper analyzes the scientific and practical literature on the preservation of private prosecution as an institution in criminal proceedings from the perspective of protecting the rights, freedoms, and legitimate interests of citizens involved in the sphere of domestic conflicts, as well as contributing to the prevention thereof. In this regard, the purpose of the study of this legal category is a comparative legal analysis of the theoretical and applied positions on the need to preserve private prosecution in criminal proceedings and the development of the most optimal ways to improve this institution in order to balance the interests of justice and take into account the interests of citizens in resolving criminal law conflicts arising on domestic grounds, as well as protecting victims of domestic violence. Methods: the methodological framework for the research is based on general scientific methods (dialectical, systemic, structural and functional, logical, etc.) and specific scientific methods (formal legal, comparative law, etc.). Results: the problem of the insufficient effectiveness of private prosecution in protecting the rights, freedoms, and legitimate interests of citizens should be solved not by abandoning this institution but by simplifying legal proceedings and broadening the powers of a justice of the peace, including granting him the right to give instructions on the conduct of certain investigative actions by the body of inquiry. Subject to the foregoing, the institution of private prosecution as a way of protecting individual rights not only has the right to exist but also organically fits into the domestic criminal procedure system. Conclusions: in the fight against domestic violence, the efforts of the state should be focused on eliminating its causes, and abandoning the institution of private prosecution or leaving it unchanged does not correlate with these tasks. It is inappropriate to make the effectiveness of combating domestic violence dependent on the elimination or preservation of the institution of private prosecution. It should be recognized that a set of legislative, organizational, and methodological measures is required aimed at countering and eradicating such a social phenomenon.

Euthanasia in detention and the ethics of caring solidarity: A case study of the 'Tarragona Gunman'.

Almost a year after the enactment of the law regulating euthanasia in Spain, public opinion was shocked to learn that a defendant in criminal proceedings obtained medical assistance in dying following injuries sustained in an exchange of gunfire with the police after having committed a series of severe crimes. Although there are very few cases in the world where prisoners have received euthanasia, the one we will discuss in this article is the only known case where both the public prosecutor's office and the private prosecutors judicially opposed the defendant's euthanasia. This article aims to offer a new perspective on the ethical legitimacy of detainees' access to euthanasia: the ethics of caring solidarity. To do this, we will first place the case in its legal context. Subsequently, we will address the two main arguments proposed in the literature to justify euthanasia in detention: respect for the autonomy of the detainee and the principle of equivalence of care. Finally, after having identified serious shortcomings in both arguments, we will argue that the perspective of caring solidarity offers a better ethical basis for people in detention's access to euthanasia.

The Right of the Victim and Private Prosecutor to Reconciliation with the Person Who is Being Criminally Prosecuted

The article is devoted to the analysis of the legal regulation of the rights of the victim and private prosecutor to reconciliation with the person against whom criminal prosecution is being carried out . It is concluded that the criminal procedure law in general rules does not establish the right of the victim and private prosecutor to reconciliation with the accused . At the same time, such rights are directly or indirectly regulated in special norms .Arguments are given for and against directly establishing the right of the victim to reconciliation with the accused in Art . 42 of the Code of Criminal Procedure of the Russian Federation . The author comes to the conclusion that in cases of public prosecution, the absence of an obligation to terminate the criminal case in connection with the reconciliation of the parties means the impossibility of directly securing the victim’s right to reconciliation . It is proposed to formulate this right as the right of the victim “to file a petition to terminate the criminal case in connection with the reconciliation of the parties”, which corresponds to the discretionary nature of Art . 25 Code of Criminal Procedure of the Russian Federation . At the same time, it is concluded that this right must be explained to the victim, regardless of the presence of other conditions for exemption from criminal liability in accordance with Art . 76 of the Criminal Code of the Russian Federation .In cases where the case is not dismissed, it is proposed to regard the reconciliation of the parties as a circumstance mitigating punishment .

Issues of Protection of the Rights of Citizens in Criminal Cases of Private Prosecution at the Stage of Initiation of Criminal Proceedings

The article is devoted to the implementation of the rights of citizens in criminal cases of private prosecution at the stage of initiation of a criminal case. Based on the analysis of the norms of Articles 318, 319 of the Criminal Procedure Code of the Russian Federation, the legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, attention is drawn to the problems that arise when initiating criminal cases of private prosecution. It is noted that the procedure for initiating a criminal case of private prosecution has been generally developed, but at the same time needs further improvement. The content of the application for the initiation of a criminal case, the procedure for filing it and determining jurisdiction are sufficiently regulated by the criminal procedure law of the Russian Federation, which refers to guarantees of personal rights both in relation to the victim (private prosecutor) and the person accused of committing a crime in a private prosecution case. The article contains an analysis of the procedural procedure for initiating a criminal case by the body of inquiry and the justice of the peace and the conclusion that the justice of the peace (judge of the district (city) court) is in any case obliged to accept the statement of the victim (private prosecutor) in the case of a private prosecution and verify it only in the form of a statement. It is from the moment when the judge makes a decision to accept the application for production that the criminal case of a private prosecution should be considered initiated, while the body of inquiry has the right to make a decision on the initiation of a criminal case, having assessed the sufficiency of the grounds. According to the author, all legal procedural mechanisms in cases of private prosecution have been created by the legislator and are currently being applied by magistrates (district (city) courts).

Problematic aspects of criminal prosecution for domestic violence

mestic violence.The article is devoted to the analysis of the features of bringing criminal responsibility for committing domestic violence. It has been proven that the establishment of criminal responsibility for committing domestic violence is important for the following reasons: firstly, from the point of view of protecting the rights of victims, since domestic violence is one of the most serious forms of violation of rights, it endangers social values, such behavior can encroach on mental and physical health, honor, dignity, sexual freedom and sexual integrity; secondly, its establishment is part of Ukraine’s international obligations; thirdly, when domestic violence is criminalized, victims are more likely to seek help from law enforcement agencies, they are certain that their complaints will be carefully considered and their rights will be protected; fourth, criminalizing domestic violence helps prevent illegal behavior. At the same time, there are still certain problematic aspects related to bringing criminal responsibility for committing domestic violence. The mentioned actualizes the research of the chosen issue.Special attention is paid to the importance of the Convention of the Council of Europe on the prevention of violence against women and domestic violence and the fight against these phenomena of 11.05.2011 in the establishment of criminal liability for the commission of domestic violence and the changes made to criminal and criminal procedural legislation in connection with bringing the legislation into compliance with the norms of the Convention.The statistical information of appeals regarding domestic violence and criminal proceedings considered by the court was analyzed. The problematic aspects of criminal responsibility for committing domestic violence include: 1.Establishing the systematicity of domestic violence. 2. Inefficient investigation. 3. Attribution of domestic violence to cases of private prosecution.It was concluded that the criminalization of domestic violence is a significant step on the way to European integration, Ukraine’s fulfillment of international obligations, and protection of victims of domestic violence. Taking into account the shortcomings and challenges that have arisen in connection with bringing guilty persons to criminal responsibility, it is proposed to carry out the following measures: firstly, the development of a clear judicial practice in the matter of establishing systematicity as a sign of a criminal offense provided for in Article 126-1 of the Criminal Code of Ukraine, secondly, the formation of a non- discriminatory attitude towards victims among law enforcement officers and, in general, the formationof intolerance to any manifestations of domestic violence in society; third, the exclusion of domestic violence and crimes related to domestic violence from private prosecution cases.

Private prosecutions of non-vets.

Private prosecutions of non-vets.

The Spanish Model of Private Prosecution: Identifying Risks and Opportunities Through Empirical Research on Sex Crimes

AbstractThe Spanish criminal justice system encompasses a distinctive model of private prosecution, affording crime victims the opportunity to participate in the judicial process in a different way to other legal systems. While this grants victims certain advantages, it also carries inherent risks, as underscored by legal scholars. The ongoing debate about the advantages and disadvantages of the current configuration of public prosecution in Spain is of significant comparative and international interest. Our contribution to this debate lies in the incorporation of empirical research findings based on data collected from judicial judgments.

О перспективах снижения нагрузки и развития компетенции мировой юстиции

Although they do not hold the highest place among the courts of general jurisdiction, justices of the peace play a crucial role in ensuring the functioning of the entire judicial system of the Russian Federation. Therefore, creating favorable conditions for their professional activities is an important task of the state. This study aims to identify measures to reduce the workload of justices of the peace. Doing so will improve the quality of justice and ensure that court cases are considered within reasonable timeframes. The author suggests addressing this issue by changing the competence of justices of the peace in civil and administrative proceedings, as well as in cases of administrative offenses, and delegating some of their powers to state executive bodies. Furthermore, it is proven that transferring criminal cases of private prosecution to the private-public category would optimize the work of justices of the peace.

Порядок и пределы возмещения сумм, затраченных на обращение за квалифицированной юридической помощью в уголовном процессе

Introduction: the constitutional right of citizens to receive professional legal assistance can be secured if there is an effective and affordable mechanism for reimbursing expenses related to legal assistance from an attorney. The insufficient scientific research on the topic as well as not always effective reforms of the institutions of reimbursing expenses for the attorney’s assistance to rehabilitated persons and to victims, the collection from the convict of procedural costs related to the renumeration of the appointed attorney, result in judicial errors when resolving issues of reimbursement of such expenses, which, in turn, leads to violation of the rights of participants in the criminal process. The purpose of the study is, first, to identify the legal nature, the most effective procedural form, and fair limits of reimbursement for legal assistance received by: a rehabilitated person, a person unreasonably prosecuted in a criminal case of private prosecution, a victim – on a reimbursable basis (under an agreement with an attorney) as well as by the suspect or the accused having no possibility to hire an attorney – on a non-reimbursable basis (with funding from the federal budget); second, to formulate proposals for further improvement of the institution of procedural costs reimbursement. Results: we analyzed the development dynamics of criminal procedure legislation and the impact that the positions of the Constitutional Court of the Russian Federation and law application practice have on this development. The analysis revealed some shortcomings in law and the practice of its application, solutions to these problems are proposed. Conclusions: we defined the criteria for determining the limits of reimbursement of expenses incurred by a person subjected to unlawful or unfounded criminal prosecution; formulated a list of grounds for exempting the accused from procedural costs being collected from him for an appointed attorney in cases where such expenses were unreasonable and (or) irrational; described the way to further improve the procedure for reimbursing the victim for the assistance of an attorney that would allow ensuring equal procedural opportunities for victims in terms of reimbursement of expenses incurred both in pre-trial proceedings and in trial.

PRIVATE PROSCUTION IN ENGLISH CRIMINAL PROCEDURE: HISTORY AND LEGAL NATURE

Historically, English criminal procedure is characterised by the role of private prosecution, which allowed each person to bring charges against any other person. A relic of the Middle Ages, it has nevertheless survived successfully to the present day, although it has undergone a number of significant transformations. Its remarkable resilience, despite its inability to serve as a fullfledged instrument of Crown criminal policy, is due to the fact that the ancient procedural form is constantly emerging with new uses. In the twentieth century there was a growing demand for it by commercial and noncommercial organizations who needed an instrument for the proactive prosecution (in public or private interests). Continental critics, who had earlier protested against the introduction of the English model of private prosecution into the criminal procedure of Germany or France, raised many objections against it, but the English history has shown that their fears were baseless. At the same time, the development of public prosecutions in England has greatly reduced the space for private initiative. Most of the procedural advances, among them the increased accessibility of criminal justice, were due to the expansion of the state.

Problems of Initiation and Consideration of Criminal Cases of Private

The article examines the procedure and problems of initiating and considering criminal cases of private prosecution in accordance with the provisions of the Code of Criminal Procedure of the Russian Federation. The specific proceedings on cases of private prosecution are disclosed. Attention is drawn to the fact that private prosecution is such a kind of accusation in criminal procedure law, when criminal prosecution is initiated not on behalf of the state, in the actual absence of a preliminary investigation or inquiry, but on the complaint of the victim or his legal representative, filed directly with the justice of the peace. It reflects the problems of resolving numerous issues related to the initiation and consideration of criminal cases of private prosecution, as well as issues of ensuring the rights of citizens and observing the principle of competitiveness of the parties when considering cases of this category by a justice of the peace.

ЮРИДИЧЕСКАЯ ХРОНИКА

The October Chronicle presents comments on the introduction of new types of taxes: excess profit tax and one-time taxes; the adoption of the Constitutional Court ruling on the correlation between a court decision to terminate a criminal case of private prosecution and the decision of internal affairs bodies to refuse initiating a criminal case; the introduction of additional administrative responsibility of social network owners and the adoption of the law on the regulation of economically significant organisations.

Основные подходы к понятию и видам обвинения в российском уголовном процессе

The subject of this study is the institute of prosecution in domestic criminal proceedings. In the fi rst part of the article, the author explores the concept of accusation. Approaches are considered in which the accusation was identifi ed both with a criminal suit and with criminal prosecution. The second part of the presented work is devoted to the types of charges and the criteria for their differentiation. A summary analysis of the positions of modern, Soviet and pre-revolutionary researchers of law on this issue is given. Various types of charges are considered depending on the subject entitled to its implementation. Particular attention is paid to the so-called public prosecution, which was supported by citizens who were not endowed with this right ex offi cio. Based on the study, the author comes to the conclusion that the adversarial model of the criminal process is characterized by the presence of various types of charges, as well as various subjects entitled to its implementation. At the moment, in the Russian criminal process there is a so-called “prosecutor’s monopoly” on the prosecution, which is somewhat limited by the presence of a private prosecution. However, a small number of offenses classifi ed as private prosecution, as well as the number of criminal cases in this category considered by the courts, does not change the existing paradigm. Thus, the existing procedure does not fully correspond to the adversarial model of the criminal process.

피해자 국선 변호사 역할과 과제

Article 12 Clause 4 of the Constitution of the Republic of Korea provides for the assistance of lawyers. “Anyone who is arrested shall have the right to be assisted immediately by a lawyer.” When a criminal defendant is unable to seek an attorney for himself/herself, the State shall assign a lawyer as prescribed by law.｣ Criminals may, of course, be protected by the appointment of a lawyer when they are investigated by an investigative agency on the basis of the Constitution. Article 33 Clause 1 of the Criminal Procedure Act also specifies the assistance of counsel. The spirit of the constitution was reflected. ｢If it falls under certain conditions and is necessary to protect the rights of criminal offenders, a lawyer shall be selected as necessary. If the economically poor or the physically and mentally handicapped cannot appoint a lawyer, the state protects the defendant's rights in selecting a public defender.｣
 But what laws are the victims of crime protected by? Article 10 of the Constitution of the Republic of Korea stipulates the “right to pursue happiness of all citizens.” Article 11 of the Constitution stipulates equal rights for all citizens. Clause 2 of Article 294-2 of the Criminal Procedure Act guarantees the right of victims to state. However, other than that, there are no other regulations protecting victims' rights. Thus, it received a lot of criticism. ｢① After a crime incident, secondary damage is inflicted. ② Victims of a crime shall not be directly involved in an investigation or trial. ③ All citizens are equal.｣ Due to these criticisms, the victim's lawyer system was introduced in 2012. The system of public defenders for victims has been in effect since March 6, 2012. Nevertheless, the system has not been properly established in criminal practice yet. Therefore, confusion has continued. This is because the scope and rights of lawyers for victims of crime and their status in litigation are unclear.
 Germany settled the issue of protecting victims of crime in 1998 by enacting new legislature. “Act on the Protection of Witnesses and the Improvement of Victims’ Protection when interrogating witnesses in criminal cases: The Witness Protection Act.” Germany clearly defined the rights of crime victims to counsel by the law. Since then, the law has been constantly revised. The rights of crime victims to counsel became victims' rights. Article 395 of the German Criminal Procedure Act stipulated the private prosecution system and the participation system in a public prosecution. Crime victims are equal litigants. It is a legal position recognized by the Criminal Procedure Act. According to the German Criminal Procedure Act, the protection of witnesses has been strengthened. You can exclude the accused and interrogate the witness. Also, it is possible to read a report and record a witness on a tape recorder.
 Japan has also introduced victim’s participation system. Victims and victims’ lawyers may appear at the trial date and ask the defendant for a witness. Opinions on the confirmation of facts or the application of laws may be stated in the trial. The protection of crime victims has been strengthened. This is the crime victim’s protection system in Germany and Japan.
 The spirit of the Constitution is urging more rights for crime victims. The Criminal Procedure Act should establish a stipulation for the protection of victims. The legal rights of the victim’s lawyer should also be clearly defined. Only then, can victim lawyers be more active for victims in the investigation and trial stages with legal grounds. The assistance of the investigative agency alone is not enough. You can refer to the German Criminal Procedure Act and the Japanese Criminal Procedure Act.

Rape: criminal proceedings of private or public prosecution?

The article is devoted to the problematic issues of implementing the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) into the criminal and criminal procedural legislation of Ukraine. It is noted that the norms of criminal and criminal procedural law regulate social relations related to the resolution of the most dangerous social conflicts. Legal norms are aimed at protecting the rights, freedoms and legitimate interests of the participants in these relations, in which private and public are combined. This issue is most acutely manifested in criminal proceedings regarding criminal offenses against a person’s sexual freedom and sexual integrity, a special type of which is domestic sexual violence, including rape. In particular, the problem is the definition of the border between private and public. The immediate prerequisite for the emergence of the mentioned problem was the submission to the Verkhovna Rada of Ukraine of a draft law that provides for the full implementation of the relevant provisions of the Istanbul Convention into the national legislation of Ukraine after its ratification. The authors of the draft law proposed to postpone criminal proceedings under Part 1 of Art. 152 (rape without aggravating circumstances), as well as Part 1 of Art. 153 (sexual violence) of the Criminal Code of Ukraine from the category of private prosecution to public prosecution proceedings. The article analyzes this proposal from the point of view of its consistency with other provisions of the Istanbul Convention, as well as with fundamentally important provisions of the national legislation of Ukraine. Attention is drawn to the contradiction of the proposal set out in the draft law with the constitutional rights of a person regarding the collection, storage, use and distribution of confidential information about him, subjecting him to medical, scientific or other experiments without his free consent. Arguments are given regarding the occurrence of significant obstacles in the implementation of pre-trial investigation and court proceedings in cases of this category without submitting a statement (complaint) of the victim.

Forms of prosecuting in the Polish criminal trial

The subject of this article is to analyse forms of prosecuting in the Polish criminal trial. The author discusses the following issues related to the title issue: the essence of prosecuting, type of criminal offence and manner of prosecuting versus choice of prosecuting option, public prosecution, private prosecution, and Auxiliary prosecution. Discussion of statistical data is also part of the analysis. The article is built around the thesis that the functioning of the three options of prosecution in Polish criminal proceedings depends, as can be seen, on the type of offence committed. Whether the crime is public or private depends on the choice of the appropriate prosecution option.

SPECIFIC ASPECTS OF RECONCILIATION AND PRIVATE PROSECUTION AS GROUNDS FOR TERMINATING CRIMINAL CASES

This article analyzes the relationship between the termination of a criminal case based on reconciliation and private prosecution, their specificity through the norms of substantive and procedural law. The article explores the scope of this institution through scientific and theoretical views put forward by scientists on the termination of a criminal case based on reconciliation and private prosecution. Based on the views and ideas of scientists, the termination of a criminal case based on reconciliation and private prosecution was analyzed based on scientific, theoretical, practical, and legislative norms.