The prosecutor himself – Picture of the Day – Kommersant

The Constitutional Court will check the provisions of the Code of Criminal Procedure, which allow courts to dismiss cases of private prosecution on the basis of a decision of an inquirer or investigator. The reason for the check was the complaint of a resident of St. Petersburg, who suffered from domestic violence. The applicant believes that this practice limits her right to judicial protection: it turns out that a private prosecutor is initially made dependent on the position of law enforcement officers.

The Constitutional Court accepted for consideration the complaint of Anna Shkolnik, a resident of St. Petersburg, according to the website of the court. The woman sought criminal prosecution of her neighbor who beat her in a communal apartment, we are talking about domestic violence, said Alexander Gavrilov, president of the De Jure law office representing the applicant. At first, the woman filed a complaint with the police, but they decided that a few blows “in the face area” were still insufficient grounds for initiating a criminal case, and they refused to do so. Then the victim applied to the Magistrate’s Court with a statement to initiate a criminal case on causing minor bodily harm (Part 1 of Article 115 of the Criminal Code of the Russian Federation) as a private prosecution: the law provides such an opportunity when it comes to minor crimes. In this case, the case is initiated by the court and not by the decision of the prosecutor or investigator, but by the application of the victim himself. He also acts as a party to the prosecution in the process.

However, the magistrate dismissed the case initiated at the request of Mrs. Shkolnik with reference to the decision of the interrogator that there was no corpus delicti, and the higher authorities supported this decision. “The decision of the justice of the peace complies with the requirements of the criminal procedure law, it contains the circumstances established by the court and draws the right conclusions,” stated the Third Court of Cassation. However, the applicant does not agree with this. The termination of criminal prosecution in cases of private prosecution should not be made dependent on the decision of the inquirer or investigator, this limits the constitutional right to judicial protection, she insists.

Of course, if the applicant did not go to the police, but immediately to the court, then there would be no decision, Alexander Gavrilov explains. According to the law, private prosecution cases are initiated by the Magistrate’s Court at the request of the victim. On the other hand, the lawyer recalls, almost any visit to the emergency room with beatings is recorded and involves a check for a crime event, as a result of which, as a rule, a conclusion is made that there is no corpus delicti. “It turns out that even if you don’t go to the police, you are very likely to get a refusal order, but you can find out about this only in court when your opponent presents it,” the lawyer explains. This leads to the fact that the private prosecutor becomes dependent on the decision of the interrogating officer or simply the district police officer, who is authorized to conduct the check. And this is wrong and, in essence, calls into question the very institution of private prosecution, which is an important part of civil society, Mr. Gavrilov notes. “Even if you didn’t break anything, you should have the right to protection,” he says.

Lawyer Maxim Nikonov notes that in this case the court strictly followed the letter of the law: according to the Code of Criminal Procedure, the presence of an investigator’s decision to refuse to initiate a criminal case is the basis for terminating criminal prosecution. But the conflict lies in the fact that usually cases of private prosecution do not go through the standard trajectory that implies obtaining such a decision. And here the question arises: should the position of the state block the initiative of a private prosecutor to go to court? “My position: since a person, in principle, has the right to support a private prosecution independently of the state, then he should be able to defend his position, even if the state did not support it,” the expert says, “otherwise the very meaning of such an institution is lost.” In addition, he recalls, cases of private prosecution are cases of minor gravity, and for them the statute of limitations is only two years. Therefore, in such cases, it is especially important to be able to quickly apply to the court.

Leonid Golovko, head of the department of criminal procedure at Moscow State University, believes that there is no conflict here: the subjects of private and public prosecution are mutually exclusive – either there are grounds for one or the other. The applicant, he believes, simply encountered an error in law enforcement: the police should not have refused to initiate a case for her, but should have immediately given explanations about the possibility of going to court. But if the Constitutional Court acts as an educator and explains how everything should happen, then there will be no harm, the expert adds.

Anastasia Kornya