The relevance of topic is determined by unjustifiably less attention to the issue of discretion of the prosecutor in criminal proceedings, especially in contrast to other types juridical discretion. In view of this, there is still no common understanding of the discretion of the prosecutor in criminal proceedings and the peculiarities of the implementation of the discretion of the prosecutor at different stages of criminal proceedings have not been clarified. Systematic analysis of domestic criminal procedural regulation/legislation shows a significant number of judgment concept, juridical conflicts, gaps in criminal procedure legislation and other defects, which is the basis for the discretion of the prosecutor.
It is found that the Criminal Procedure Code of Ukraine does not provide the definition of “prosecutor’s discretion”, but the definition itself is used. According to paragraph 2 of Article 364, if several public prosecutors participated in trial, in pleadings, by their own discretion, one public prosecutor may speak, or each of them may substantiate his position in a certain part of charges.
It is stated that the prosecutor’s discretion in criminal proceedings – is an aspect of the law activity of the prosecutor in criminal proceedings, which consists in free choice provided by the criminal procedure law, or caused by deficiencies in criminal procedure regulation/legislation, the prosecutor of a procedural action or procedural decision of two or more lawful, reasonable and fair alternatives on the basis of his inner opinion, legal awareness and the circumstances of criminal proceedings.
It was found that the basis for the prosecutor’s discretion in criminal proceedings are the deficiencies in criminal procedure regulation/legislation, excessive use of judgment concept in regulations, as well as the expression of the will of the legislator, when he directly provided the possibility for the prosecutor to choose a certain procedural decision or procedural action. As for the reasons for the prosecutor’s discretion in criminal proceedings – they are the dynamic of state and public life; ability of legislators to regulate only typical situations during criminal proceedings; technical and l deficiencies in criminal procedure regulation/legislation, the provisions of which cannot be applied without the discretion of the prosecutor.
Arguments are provided with regard to the statement, that the discretion of the prosecutor in criminal proceedings is an objective legal phenomenon that allows flexibility in law enforcement. This legal phenomenon is a means of overcoming gaps in criminal procedure in the absence of the necessary legal framework or in a situation of impossibility to complete legal regulation, allows to respond quickly to the transformation of public relations when the legislator cannot catchupwiththe time to respond properly to changes in social life.
The classification of the prosecutor’s discretion in criminal proceedings has been carried out. By subject on: normative and individual. By degree of discreteness: continuous and discrete. By field of law: in field of criminal law and in field of criminal procedural law. Depending on the status of the prosecutor: discretion that can be reviewed and final discretion.
It is stated that the realisation of the prosecutor’s discretion at the stage of pre-trial investigation are: the decision to fix the procedural action with the help of technical means; the right to set procedural deadlines, in particular the extension of the term of investigative actions; extension of the term of performance of the specific task; extension of the pre-trial investigation; determination of jurisdiction; decision on permission to disclose information of the pre-trial investigation;conducting a survey of a person in the mode of video or telephone conference; notification of persons on conducting investigative actions against them; drafting key procedural documents - written notice of suspicion, indictment; decision on consideration of the indictment in simplified proceedings, delivery of a written notice of suspicion; suspension of the pre-trial investigation.
Add to Article 470 of the Criminal Procedure Code of Ukraine circumstance that must be taken into account by the prosecutor when deciding on the conclusion of a plea agreement - the voluntariness of suspected/criminal defendant in concluding a plea agreement.
It is founded that the prosecutor exercises discretion in court proceedings by: filing of an appeal or cassation appeal, request for review of court decisions in newly discovered or exceptional circumstances;changing appeal or cassation complaint; filing an objection to an appeal or cassation appeal; the right of higher prosecutors to file appeals, cassation appeals, requests for review of court decisions on newly discovered or exceptional circumstances, regardless their participation in court proceedings.
