The fundamental importance of the ban on turning for the worse for the criminal procedure system

The article deals with the problem of the expediency of a criminal case’s returning to the prosecutor at the stage of appointment and preparation of a court session in Russian criminal proceedings. This problem is relevant to the science of criminal procedure.

The purpose of the study is to analyze critically the practice of returning of a criminal case back to the prosecutor in order to correct mistakes made at the pre-trial stages of the proceedings according to the new concept of justice independence and the absence of an accusatory bias in the court functioning.

The methodological basis of the study is a set of scientific techniques, focused mostly on the dialectical approach, which made it possible to determine the essential characteristics of the prohibition to turn the criminal proceedings in Russia for the worse. Both general scientific (analysis, synthesis, systematic method) and specific scientific methods (formal-legal, historical-legal, comparative-legal) of knowledge were also used. The analysis helped to formulate the position of understanding the turn for the worse as an independent principle of criminal procedural law, to study the procedural form of the turn for the worse. The synthesis method made it possible to determine the return of the criminal case to the prosecutor at the stage of appointment and preparation of the court session as a holistic institution of the criminal procedure. The systematic approach allowed to determine not only the mixed nature of the mechanism for changing the prosecution to a more serious one, but the investigative organi

zation of pre-trial proceedings and its place in the structure of criminal proceedings, the separation of the investigative and “accusatory powers” of the prosecutors as well as their balance. The historical method let us trace the evolution of the prohibition to turn the Soviet and Russian criminal procedural systems for the worse. The comparative-legal method made it possible to assess the potential of domestic legislators' reception of foreign experience of regulating the prohibition to turn for the worse and formulate proposals to improve the Russian criminal procedural legislation.

The main scientific results of this research consist of justification of the conclusion of the conversion expediency of the domestic judicial proceedings to the adversarial model of accusation which is carried out within the trial on the previously filed charge. The presentation of a new charge (criminal action) in court and the procedure of supplementing the charge change it for the worse. This model of re-indictment for the worse for the defendant appears to be fairer and more convenient both for the prosecuting authority and for the legal organization of combating crime. The changeover to the suggested form of implementation of the ban to turn for the worse in the institution of bringing and changing charges in court is possible only in a systematic link with the reform of the preliminary investigation. Conclusion. The institution of the criminal case returning by the court to the prosecutor in order to change the charge to a more serious one when implementing the adversarial model of bringing charges in the criminal procedure system of Russia will fully satisfy the concept of independence of justice administration and the absence of an accusatory bias in the activities of the court, while at the same time with fairly organized the prosecutorial power aimed at countering crime.

The section 1 was prepared by N.N. Lysov, section 2 by K.D. Vanyan (together with M.T. Tashilin), section 3 by A.S. Shuisky (together with I.R. Gilmanov), section 4 by V.V. Kosterin.

1. Potapov V.D. The main principles of the verification of court decisions in the control and verification stages and proceedings of criminal proceedings in Russia, Doct. Diss. Thesis. Moscow, 2013. 68 p. (In Russ.).

2. Ivasenko K.V. Limits of the rights of higher instances when checking court decisions in appeal, cassation and supervisory proceedings, Cand. Diss. Thesis. Moscow, 2014. 33 p. (In Russ.).

3. Trukhin S.A. The subject and limits of the appeal proceedings of criminal cases, Cand. Diss. Thesis. Moscow, 2016. 28 p. (In Russ.).

4. Kilina I.V. A turn for the worse in the court of appeal. Moscow, Yurlitinform Publ., 2020. 152 p. (In Russ.).

5. Alexandrov A.S., Alexandrova I.A., Vlasova S.V. Theoretical concept of state-legal organization of crime prevention in the XXI century. Gosudarstvo i pravo = State and Law, 2019, no. 9, pp. 75–86. DOI: 10.31857/S013207690006732-7. (In Russ.).

6. Petrukhin I.L. Prohibition of turning to the worst in the Russian criminal process. Gosudarstvo i pravo = State and Law, 2006, no. 3, pp. 46–53. (In Russ.).

7. Petrukhin I.L. Further investigation: discrepancies of law and practice. Ugolovnyi protsess = Criminal process, 2007, no. 8, pp. 27–30. (In Russ.).

8. Morshakova T.G. Prohibition of a turn for the worse as a guarantee of individual rights in the Soviet criminal process, in: Problemy okhrany prav i zakonnykh interesov lichnosti v sotsialisticheskom ugolovnom prave i protsesse, A collection of scientific papers, Yaroslavl, Yaroslavl University Publ., 1985, pp. 36–45. (In Russ.).

9. Smirnov A.V., Kalinovskii K.B. Commentary on the Criminal Procedure Code of the Russian Federation, Article by article, ed. by A.V. Smirnov, 2nd ed. St. Petersburg, Piter Publ., 2004. 848 p. (In Russ.).

10. Zykin V. The court's return of cases for additional investigation: the state and prospects. Rossiiskii sledovatel’ = Russian investigator, 2006, no. 1, pp. 6–9. (In Russ.).

11. Tambovtsev V.V. "Prohibition of turning to the worst in the Russian criminal process" and observance of human rights of the victim in the administration of justice. Gosudarstvo i pravo = State and Law, 2006, no. 10, pp. 122–126. (In Russ.).

12. Alexandrov A.S., Lapatnikov M.V. There will be no return to the direction of the case for further investigation. Ugolovnyi protsess = Criminal process, 2013, no. 7, pp. 10–14. (In Russ.).

13. Alexandrov A., Lapatnikov M. Restoration of the institution of the court's return of the criminal case to the prosecutor for further investigation. Ugolovnoe pravo = Criminal Law, 2013, no. 6., pp. 82–88. (In Russ.).

14. Dikarev I.S. Prohibition of turning for the worse when reviewing court decisions that have entered into legal force. Rossiiskaya yustitsiya = Russian Justice, 2013, no. 3, pp. 60–62. (In Russ.).

15. Grinenko A., Makeeva I. System Weakness of the criminal Procedure legislation in modern Russia. Opcion, 2018, vol. 34, spec. iss. 14, pp. 1246–1265.

16. Dikarev I.S. Criminal trial: "quiet revolution" was replaced by reaction. Vestnik Volgogradskogo gosudarstvennogo universiteta. Seriya 5: Yurisprudentsiya = Bulletin of Volgograd State University. Series 5: Jurisprudence, 2013, no. 3 (20), pp. 98–103. (In Russ.).

17. Kovtun N.N. Courts "fema". Ugolovnyi protsess = Criminal process, 2013, no. 11 (107), pp. 20–27. (In Russ.).

18. Kalnitsky V., Kuryakhova T. Legal positions of the Constitutional Court of the Russian Federation on the issue of returning a criminal case to pretrial proceedings. Ugolovnoe pravo = Criminal Law, 2009, no. 4, pp. 96–100. (In Russ.).

19. Kuryakhova T.V. Limits of the powers of the prosecutor and the body of investigation in the criminal case returned by the court (Article 237 of the Code of Criminal Procedure of the Russian Federation). Zakonodatel’stvo i praktika = Legislation and practice, 2013, no. 1 (30), pp. 41–44. (In Russ.).

20. Alexandrov A.S., Lapatnikov M.V. Court on conviction, and not on judgment. Ugolovnoe sudoproizvodstvo = Criminal proceedings, 2013, no. 4, pp. 6–12. (In Russ.).

21. Kolokolov N.A. The long-awaited return to the investigation. Ugolovnyi protsess = Criminal process, 2013, no. 11 (107), pp. 28–35. (In Russ.).

22. Kirillova N.P., Smirnova I.G. Basic scripts of modern criminal procedure policy. Vserossiiskii kriminologicheskii zhurnal = Russian Journal of Criminology, 2018, vol. 12, no. 1, pp. 116–127. DOI: 10.17150/2500-4255.2018.12(1). (In Russ.).

23. Ryabinina T.K. Institute of the return of the criminal case to the prosecutor in the system of criminal procedural means ensuring the victim's right to protection from crimes and access to justice. Vserossiiskii kriminologicheskii zhurnal = Russian Journal of Criminology, 2020, vol. 14, no. 3, pp. 512–526. DOI: 10.17150/2500-4255.2020.14(3). (In Russ.).

24. Manova N.S., Baranova M.A. Principles of criminal proceedings as the embodiment of the moral foundations of criminal procedural activity. Vestnik Permskogo universiteta. Yuridicheskie nauki = Bulletin of Perm University. Legal sciences, 2019, iss. 45, pp. 564–593. DOI: 10.17072/1995-4190-2019-45-564-593. (In Russ.).

25. Sim R.S., Scott D.M.M. A Level English Law. London, Butterworth Publ., 1984. 394 p.

26. Kiraify A.K.R. The English Legal System. London, Sweet & Maxwell Publ., 1984. 301 p.

27. Meyer-Goßner L. Strafprozessordnung mit GVG und Nebengesetzen. Munich, C.H. Beck Publ., 2008. 2671 p. (In German).

28. Ryabinina T.K. Legal regulation of the institution of the return of a criminal case from court in foreign countries. Mezhdunarodnoe ugolovnoe pravo i mezhdunarodnaya yustitsiya = International criminal law and international justice, 2019, no. 5, pp. 27–30. (In Russ.).

29. Sheifer S.A. Prosecutorial and investigative power: the essence and problems of relationship, in: Kolokolov N.A. (ed.). Ugolovnoe sudoproizvodstvo: teoriya i praktika, vol. 2, Moscow, Yurait Publ., 2016, pp. 383–401. (In Russ.).

30. Mashovets A.O. Theoretical model of the legal organization of judicial investigation in the criminal process of the Russian Federation, Doct. Diss. Yekaterinburg, 2018. 425 p. (In Russ.).

31. Aleksandrov A.S. (ed.). The doctrinal model of the criminal procedural evidentiary law of the Russian Federation and comments on it. Moscow, Yurlitinform Publ., 2015. 304 p. (In Russ.).

32. Aleksandrov A.S., Kukhta A.A., Marchuk A.D. The prosecutorial power. Criminal claim. Criminal prosecution and its types, in: Tomin V.T., Zinchenko I.A. (eds.). Ugolovnyi protsess, Problem lectures, Moscow, Yurait Publ., 2013, pp. 241–292. (In Russ.).