Prosecutor’s Authority To Participate In Criminal Trial In The Form Of Private Prosecution: Ukrainian Legislation, Court Practice, And International Experience

Abstract

This publication is the author’s attempt to present to the academic community the objective problems related to a prosecutor’s participation in a criminal trial in the form of the private prosecution, and possible ways and means to resolve them. In particular, the author offers her own approaches towards application by the prosecutor of their function of supporting public prosecution as an activity of exclusively public nature, which allows for the prosecutor’s participation in a criminal trial in the form of the private prosecution; prosecutor’s involvement being inherent to both forms of public- private and public procedural activities.

The article provides arguments supporting the following conclusions:

-    as the prosecutor supports private prosecution as well, the functions of supporting public prosecution, as an activity of exclusively public nature, include the prosecutor’s participation in criminal trial of private prosecution;

-    in the existing legal framework, both forms of proceedings (private (or, more precisely, public-private) and public) include the prosecutor’s procedural activities, which is proving indictment in the court to secure criminal responsibility of the individual who committed a criminal offence (state prosecution);

-    prosecutor’s participation in a criminal trial of private prosecution is mandatory. At that, one should keep in mind the prosecutor’s exceptional powers described in Article 340 of the Criminal Code of Process of Ukraine.

Attorney involvement in the prosecution of private prosecution is mandatory. At the same time, it should be remembered for its exclusive powers under Article 340 of the CPC of Ukraine.

The prosecution’s performance of a procedural obligation to conduct a pretrial investigation of a criminal offense in private prosecution and to support a state prosecution in court is a guarantee of the realization of the principles of equality, competitiveness of the parties and freedom in presenting their evidence to the court and proving their conviction, Article 22 of the CPC of Ukraine.