Practical Problems in the Initiation of Public Criminal Prosecution

The article addresses the issues surrounding the grounds for initiating criminal prosecution, the renewal of criminal prosecution, and the investigator’s involvement in the initiation of criminal prosecution. Drawing on theoretical interpretations of the grounds for initiating criminal prosecution, comparative international and historical experience, and a systematic analysis of the relevant legal provisions, the authors demonstrate that initiating criminal prosecution against a person requires a preliminary hypothesis, grounded in evidence and capable of being formulated in procedural terms, that the person committed an offence. At the same time, the authors demonstrate that it is not possible to establish a categorical threshold for initiating criminal prosecution. Accordingly, the practice of initiating criminal prosecution discretionarily, sometimes prematurely and sometimes belatedly, can be addressed only through legal reasoning on the part of law-enforcement authorities grounded in the principle of a balanced protection of public and private interests. The authors take the view that the legislature has impermissibly treated the revocation not only of a decision to terminate criminal prosecution, but also of a decision not to initiate criminal prosecution, as a form of renewing criminal prosecution, making it mandatory, in the latter case, to confer accused status on the person. The authors argue that the revocation of a decision not to initiate criminal prosecution cannot, in itself, automatically constitute grounds for initiating criminal prosecution against a person and that, in such a case, the question of criminal prosecution should be resolved in accordance with the general procedure prescribed by the Code, based on an assessment of the facts indicating that an offence has been committed. According to the authors, the procedural framework governing the initiation of criminal prosecution, together with its overly restrictive interpretations, has excluded the investigator from participating in determining whether criminal prosecution should be initiated, disregarding the fact that the investigator is the sole procedural actor who establishes and directly perceives the facts constituting the grounds for initiating criminal prosecution. In the authors’ view, the decision to initiate criminal prosecution should be adopted by the investigator and acquire legal effect upon approval by the prosecutor, thereby ensuring, on the one hand, the investigator’s participation in this process, which is pivotal to the pre-trial investigation, and, on the other hand, preserving the exclusivity of the prosecution service’s authority to initiate criminal prosecution.