Irremovability of the Prosecutor in Criminal Proceedings

Abstract

The article highlights the issues of legal support and scientific approaches to the irremovability of the prosecutor in criminal proceedings. The irremovability of the prosecutor as a legal and functional feature of his status in criminal proceedings ensures his independence, efficiency, and at the same time, personifies his responsibility. A systematic analysis of the provisions of the Criminal Procedure Code (CPC) of Ukraine on the participation of the prosecutor in criminal proceedings indicates the existence of a significant number of grounds for the replacement of the prosecutor, which require specification in in part of evaluative notions. Some grounds for replacing a prosecutor are discretionary, which creates risks of errors in their application. The ground for replacing a prosecutor in criminal proceedings, which reads «other valid reasons that make it impossible for a prosecutor to participate in criminal proceedings» (Part 3 of Article 37 of the CPC of Ukraine), is quite discretionary. It should be supplemented with the statement «confirmed by specific facts that prove them» for correct use. The period of criminal proceedings, during which the prosecutor must be unchanged, begins from the moment when the prosecutor is appointed as the procedural head of the pre-trial investigation by a separate resolution, which must be made on an official form and signed by the head of the prosecutor's office. The rule about the unchanging of the prosecutor provides for his participation both in the court of first instance and in the control court stages. However, based on the motives of procedural economy, the current CPC allows the participation of higher prosecutors in court hearings of appellate and cassation courts. The norm of the prosecutor's unchanging in criminal proceedings is being violated very often because of an excessive increasing in the volume of his work. We see the solution to this problem in determining adequate standards for the maximum burden on the prosecutor. The common practice of creating groups of prosecutors only masks, but does not solve the problem of their congestion and does not provide the purpose of introducing a rule on the unchanging of the prosecutor in criminal proceedings.