Prosecutor's discretionary powers: concept, limits and control mechanisms

Abstract

This author's study is aimed at a comprehensive analysis of the essence of the prosecutor's discretionary powers in the process of reforming the justice system.

The purpose of the work is a comprehensive theoretical justification of the nature of the prosecutor's discretionary powers and the development of applied recommendations for establishing their limits and improving control mechanisms.

This study is aimed at reducing the level of legal uncertainty in issues related to prosecutorial discretion. Their resolution is critically important for ensuring the principle of the rule of law. Achieving the goal is possible only if the tasks are completed, in particular: to investigate the main theoretical aspects of the concept of prosecutorial discretion; to determine the functions and limits; to substantiate the effectiveness of control mechanisms that contribute to preventing abuse of one's powers; to determine the level of balance between the efficiency of decision-making and legality.

The scientific novelty of the study lies in the formation of a system of qualitative indicators for assessing the legality of prosecutorial discretion as a component of the concept of "managed discretion". A three-level control model combining internal departmental supervision, judicial control and public monitoring is proposed. For the first time, the feasibility of using digital technologies for automatic analysis of discretionary decisions is substantiated, which will contribute to increasing transparency, reducing corruption risks and ensuring the rule of law.

Methods. The study covers a set of general scientific and special methods of cognition. The work uses a systemic-structural approach to determine the place of discretion in the structure of the prosecutor's procedural status. The comparative legal method allowed us to compare the domestic practice of exercising discretion with the experience of states with continental and Anglo-American legal systems. Using the formal-logical method, basic concepts were clarified, in particular the definition of "limits of discretion". The analysis was used to interpret the norms of criminal procedural legislation regarding the powers of the prosecutor at different stages of the proceedings.

Results. The study proved that discretionary powers are an element of the prosecutor's professional activity, which ensures an individual approach to each case. It was determined that the limits of prosecutorial discretion are outlined not only by the norms of positive law, but also by the principles of the rule of law and justice. The classification of the limits of discretion is substantiated. In particular, they can be divided into legislative restrictions (external) and ethical and professional standards (internal). On the way to realizing the right to conclude plea agreements, additional circumstances were identified for the closure of criminal proceedings due to non-rehabilitative circumstances. It was found that the expansion of discretion should be accompanied by increased responsibility and transparent procedures.

Conclusions. Optimization of control over the prosecutor's discretionary decisions should be based on a three-level system. It includes: internal departmental supervision, judicial control, public monitoring. The need to introduce clear criteria for assessing the validity of discretionary acts that minimize corruption risks is emphasized. Amendments to the sectoral legislation are proposed in order to detail the procedures for appealing decisions made on the basis of discretion. It is established that the effectiveness of control mechanisms is a guarantee of ensuring the rights of participants in criminal proceedings and increasing the level of public trust in the institution of the prosecutor's office.