Author

Bazhanov S.V.

Title of article

Declaring illegal the acknowledgement of the person as an accused and taking him into custody: should the prosecution be terminated?

Section

Section 7. Criminal рrocedural review

Issue, year

1 (35) 2016

Abstract

The topical problem of disputes arising between regional prosecutors and heads of the investigative authorities concerning the involuntary termination of criminal cases on rehabilitating grounds, in case the accused was taken into custody, is analyzed. Usually, the investigator cannot and shouldn’t indicate the names, surnames, patronymics of all “figurants” of upcoming investigation in the descriptive part of the resolution on initiation of a criminal case. Having discovered the new episodes of criminal activities of newly identified “persons involved”, he must realize, whether they are in causal relationship with the previously identified episodes of criminal activity of suspects or accused (if they are, then there are no grounds for distinguishing a criminal case into separate proceedings or presenting materials for procedural check). A federal judge has the authority to change (cancel) the restraint previously “approved” by him, specifying the appropriate motives in the resolution. The head of the investigative body (if there are grounds) has the right and is obliged to cancel the investigator’s decision to institute a criminal case, as well as to acknowledge a person as an accused, and, taking into account the decision of a federal judge to abolish the previously chosen restraint, to make a reasoned decision about the termination of criminal prosecution regarding the part of the brought charge. The investigator shouldn’t cancel his own decisions, duplicating the resolutions of the head of the investigative body. The resolution on termination of criminal prosecution, mandatory in this context, should be the formal basis for the rehabilitation of the accused.

Keywords

judge; investigator; prosecutor; head of the investigative body; resolution; decision.