The senior teacher of Jurisprudence Chair, Kirienko N.A.

Amur State University (Birobidzhan Branch), Russia

The refusal to institute a criminal case

According to the statistic data one of the main grounds for a refusal to institute a criminal case which are passed by the body of inquiry is for lack of corpus delict. The unit weight of decisions under such grounds in 2010 and 2011 accounted 93, 6% and 93,7%, respectively. Our analysis of inspection of statements and reports’ materials about crimes, carried out by the body of inquiry, proves that the main ground for refusal to institute criminal cases is the lack of corpus delict (90%). Such ground for a refusal to institute criminal cases is widely used in the cases stipulated by the first part of Article 322 under the Penal Code of the Russian Federation, as a rule, in relation to foreigners.

However, legal reasoning of such refusals is simplified and concluded in accepting explanations concerning a charge from seized persons. As a rule, additional inspection is not carried out.

In this way on August 18, 2007 two persons of Asian appearance who violated the state boundaries by the Amur were seized by the border detachment of Russia’s FSB in the Khabarovsk region and the Jewish autonomous region. They resisted arresting and as a result one was killed and the other was seized. The period of inspection was prolonged for 10 days because of inaccessibility of the region and the contradictory evidence of the arrested woman. The decision for refusal to institute a criminal case in relation to the killed trespasser – for death of the trespasser, in relation to the arrested trespasser for the lack of corpus delict was adopted on August, 2007 due to studying the information about the crime by the (the report of the frontier post Head) inquirer. The agreement of the prosecutor was received on August 29, 2007. The refusal to institute a criminal case stipulated by the first part of Article 322 under the Penal Code of the Russian Federation was based on the arrested trespasser’s explanations who said that the killed trespasser and she had been on their territory but the border guards had started shooting at them, as a result it was concluded that there was no intention to cross the border. No other checking procedures except the investigation the scene of the accident and receiving the arrested trespasser’s explanations were carried out.

Our investigation shows that one of the reasons of an illegal refusal to institute a criminal case by prosecutors is lack of the pre-investigation check (56,6%), wrong evaluation of circumstances and facts (17,9%), and groundless conclusions concerning lack of grounds to institute a criminal case (9,4%).

A refusal to institute a criminal case is often the consequence of an investigator’s unwillingness to carry on an investigation of the criminal cases which can hardly be solved.

Thus, procedural activity of a prosecutor while criminal procedural situations connected with an illegal or groundless refusal to institute a criminal case by investigators will be the use of such authority as check of a decree’s copy on a refusal to institute a criminal case according to the C.Cr.P of the Russian Federation.

Results of a prosecutor’s check of a decree’s copy on a refusal to institute a criminal case should be registered, in particular, in other procedural resources: demands to eliminate violations of the Federal Law by the body of inquiry (Article 37, Part 2, and Paragraph 3 of the C. Cr. P of the RF); abolition of an illegal and groundless decree of an inquirer about a refusal to institute a criminal case; directions to the Head of the Body of Inquiry because of abolition of a decree about a refusal to institute a criminal case (Article 6, Paragraph 6 of the C. Cr. P of the RF).

It should be noted that in such cases prosecutors use their authority to abolish illegal and groundless decrees of an inquirer about a refusal to institute a criminal case.

For example, in 2008 prosecutors abolished 1693394 illegal and groundless decrees of the body of inquiry about refusals to institute criminal cases; it is 15 per cent more than in 2007 – 1472169 [1]. According to the statistics prosecutors abolish at the average 1, 6% decrees about a refusal to institute a criminal case (in 2002. – 1, 6%; 2003 – 1, 7%; 2004 – 1, 6%; 2005 – 1, 7%) [2]. Our investigation’s materials show that prosecutors use such authority.

We suggest that this procedural authority is the most effective in such criminal procedural cases, because it helps criminal procedural relations’ improvement.

But at the same time, the problem to institute a criminal case remains. A prosecutor does not have such an authority. There is a difficult procedure to send this decree to the head of the Body of Inquiry with prosecutor’s directions and the time for execution. In our opinion such procedure does not promote the effectiveness of criminal proceedings for it delays the process of restoration of rights of concerned persons and organizations.

That’s why we think that proposals of some authors [3] to delegate the authority to institute a criminal case to prosecutors rather sensible.

It should be noted that 61, 7 per cent of the interviewed respondents (workers of public prosecutor’s office) supported this proposal.

Thereby, we suggest bringing proper changes to the Criminal Law, in particular, into Article 146 Part 1 of the C.Cr.P of the Russian Federation and wording it in the following version: ‘If there are grounds stipulated by Article 140 of the C.Cr.P of the Russian Federation, the body of inquiry, an inquirer and the Head of the body of inquiry, an investigator and a prosecutor within the authority established by the present Code institute a criminal case and pass the proper resolution”.

Besides, we think that it is necessary to bring the proper changes to Article 148 Part 6 of the C.Cr.P of the Russian Federation. Item 16 of the second part of Article 37 of the C.Cr.P of the Russian Federation regards as Item 17. To add Item 16 of the following contents “In cases established by the present Code to institute a criminal case and delegate its investigation to an inquirer or an investigator” to the second part of Article 37 of the C.Cr.P of the Russian Federation. Realization of such proposals let us improve the effectiveness of criminal court proceedings.

Our analysis shows that prosecutors considered 40, 3 per cent of resolutions to refuse to institute a criminal case to be illegal and they were abolished. The basic violations turned out to be: lack of investigation check (77, 7%), in spite of there were grounds to institute a criminal case, refusals were established (15,1%), violation of time to establish resolutions stipulated by Article 144 of the C.Cr.P of the Russian Federation (9,6%), groundless sending messages concerning jurisdiction (2,4%). There are other ways to crime’s concealment such as late registration, making difficulties for citizens.

In 2010 prosecutors revealed 5701 occurrences, connected with illegal refusals to take and registered statements of a crime, and it is 19 per cent less as compared to 2006. In 2011 the quantity of such violations raised to 63, 3 %, 9326 occurrences were revealed [4].

In Russian constituent entities the quantity of violations raised to 22,7% (in compare with 2007) [5].

The other widespread penal procedural problem is institution of a criminal case in spite of lack of grounds.

The prosecutor uses the following powers: check of a copy of the resolution to institute a criminal case and other materials necessary for an assessment of legality and validity of the made decision (Part 4, Article 146 of the C.Cr.P of the Russian Federation); cancelling of the illegal or unreasonable resolution to institute a criminal case (Item 6, Part 2, Article 37; Part 4, Article 146 of the C.Cr.P of the Russian Federation) in case of criminal procedural situations connected with illegal or unreasonable institution of criminal cases by bodies of inquiry. Thus the cancelling of the resolution about institution of a criminal case is the most rigid and effective procedural power of the public prosecutor in similar situations.

Only in 2008 by public prosecutors cancelled 48263 illegal and unreasonable resolutions about institution of criminal cases of bodies of inquiry. The reasons for cancelling resolutions by public prosecutors are lack of pre-investigation check, lack of the sufficient data in materials of check of specifying signs of a crime, infringement of the rights of a suspected [6]. The results of our investigation show the same.

The analysis of prosecutor’s checks shows that infringement of review periods and permissions of statements about crimes are connected with inability to organize such check rationally.

Literature.

1. On the prosecutor’s supervision over the implementation of laws while receiving, registration and resolution of reports about crimes in the organs of inquiry and preliminary investigation: information letter Gen. Prosecutor’s of the Russian Federation on March 10, 2011 No. 36-20-2011. The paper was not published officially.

2. The State of law and order in the Russian Federation and the work of prosecutor’s offices. 2008 год: inf. anal. report: [in 2 p.] / under the editorship of I. Zvecharovskogo. М., 2009. P. II. P. 66.

3. The State and tendencies of crime in the Russian Federation: Criminological and penal and legal manual / SII problems of reinforcement of law and order at the General Prosecutor’s Office of the Russian Federation, the Ministry of Internal Affairs of Russia, the Criminal Investigation Department of the Ministry of Internal Affairs of Russia; under the editorship of А. Ya. Suhareva, S. I. Girko. М.: Exam, 2007. P. 16.

4. Balakshin V. Men. com. P. 24-25; Kruglikov А. Men. com. P. 28; Ryabinina Т. К. Men. com. P. 44.

5. About the state of public prosecutor’s supervision of executions of laws at reception, registration and permission of statements about crimes in bodies of inquiry and pre-investigation: the circular of the General Prosecutor’s Office of the Russian Federation from March 10, 2011. № 36-20-2011. The paper was not published officially.

6. Malov А. А., Nasedkin V. А., Guseinov М. G., Aberhaev A. R. Men. соm. P. 17.

7. The state of law and order in the Russian Federation and the work of prosecutor’s offices. 2008: inform. analyt. Report: [in 2 parts] / under the editorship of I. Zvecharovskogo. М., 2009. P. II. P. 66.