Verification of the legality of prosecutorial decisions on the closure of criminal proceedings: prosecutorial supervision or procedural guidance?

The article explores the legal nature of the prosecutor’s activity in verifying the legality of decisions to close criminal proceedings in the context of the transformation of the institution of prosecutorial supervision and the establishment of procedural guidance as a distinct constitutional function of the prosecutor’s office. The study presents a comparative analysis of the provisions of the 1960 Criminal Procedure Code of the Ukrainian SSR and the 2012 Criminal Procedure Code of Ukraine regarding the prosecutor’s powers related to the review of the legality of investigative decisions to close criminal cases. The author argues that the current wording of Articles 36 and 284 of the CPC of Ukraine reflects a shift in the prosecutor’s role—from that of an external overseer to a procedural coordinator of the pre-trial investigation, responsible for the legality of decisions at the stage of their formation, including decisions on case closure. It is emphasized that procedural guidance is not a form of prosecutorial supervision but an independent function explicitly defined by the Constitution of Ukraine. Based on the scholarly views, the author substantiates that prosecutorial review of the validity and legality of closure decisions is a manifestation of procedural guidance, rather than a form of classical supervision. At the same time, attention is drawn to Article 36(6) of the CPC of Ukraine, which grants heads of prosecutor’s offices the authority to cancel decisions of lower-level prosecutors and investigators, thereby preserving certain elements of the Soviet-era supervisory model. Statistical data and practical considerations are cited in support of the need for a final conceptual rethinking of the authority to cancel decisions to close criminal proceedings. It is concluded that the modern model of procedural guidance should ensure continuous oversight, safeguard the rights of participants in the process, and enhance the effectiveness of criminal prosecution at all stages, including its lawful termination.