WITHDRAWAL OF THE CHARGE BY THE PUBLIC PROSECUTOR IN THE CONTEXT OF ENSURING PROCEDURAL FREEDOM OF THE JUDGE

Abstract

The article criticizes the obligation of the court to discontinue criminal proceedings or prosecutions if the public prosecutor refuses to prosecute in terms of preventing such consequences from obstructing the court’s unique function of resolving a criminal case. The purpose of the work is to develop theoretical provisions justifying the need for legislative improvement of the public prosecutor’s withdrawal of the charge in order to ensure the procedural independence of judges. The article uses the methods of system analysis, synthesis, sociological survey and generalization. Results: on the basis of the analysis of criminal case files and the results of the judges' questionnaires, it is proved that the lack of an alternative effect of the public prosecutor’s with-drawal of prosecution is an unjustified restriction of the judge’s discretion in making the final decision and the lack of a real possibility for the court to en-sure the procedural interests in the actual presence of sufficiently accurate grounds. In this part, the author compares criminal proceedings to civil and ar-bitration proceedings, noting that the plaintiff’s waiver is possible only if it does not violate the fundamental principles of justice and the interests of third parties. It is proposed to remove from the law the rule of mandatory dismissal of a criminal case when the public prosecutor withdraws the charge, and to leave the matter to the reasoned discretion of the court, as it was done in the Statute of Criminal Procedure of 1864.

Keywords

• withdrawal of the charge
• public prosecutor
• independence of judges
• judicial discretion
• procedural interests