Abuse of the right to prosecution in criminal proceedings: The experience of Ukraine and the United States

Unfair use of the prosecutorʼs discretionary powers leads to violations of the rights, freedoms, and legitimate interests of a person. Examining the main ways of abusing the right to prosecution will help prevent negative manifestations in criminal proceedings that hinder the performance of its tasks. The purpose of the study is to identify specific examples of unfair behaviour by prosecutors in Ukraine and the United States during criminal proceedings. The paper uses a set of methods of scientific knowledge: abstraction, analysis, synthesis, comparative legal, formal legal, modelling methods. Some aspects of the implementation of criminal prosecution as the main procedural function of the prosecutor are examined. The main structural elements of the prosecutorʼs activity in the implementation of criminal prosecution and methods of abuse of discretionary powers in the implementation of this function are analysed. Examples of abuse of the right to prosecution are given both in Ukraine and in the United States. Separate criminal cases were considered, in which higher courts concluded that the prosecutor was abusing their right to prosecution (criminal prosecution). The legislation and legal positions of the highest court of the United States were used to compare and consider best practices. It is noted that although the American and Ukrainian models of criminal justice differ in many (primarily, formal) ways, they are based on numerous joint democratic and humanistic principles that serve to achieve justice in the field of countering crime. The need to take legitimate response measures when the prosecutor exercises their discretionary powers is justified. It is concluded that abuse of the right to prosecution exists by public prosecutors in criminal proceedings both in Ukraine and in the United States. It is demonstrated that the methods of such abuses are virtually the same and lead to violations of the rights, freedoms, and legitimate interests of participants in criminal proceedings, harm justice, and lead to a loss of public confidence since the discretionary powers granted to the prosecutor are often directed to convict and punish a person instead of searching for the truth, establishing justice. The conducted study will contribute to the development of measures to prevent the prosecutors from abusing the rights granted to them