Publication date: 02.06.2024
Criminal proceedings in the form of private prosecution refer to cases where a person (private prosecutor) independently initiates criminal prosecution. Such proceedings relate to less serious offences, such as defamation, insult or minor bodily injury.
Criminal proceedings in the form of a private prosecution are initiated solely on the basis of the victim's statement. If the victim, or his representative in the cases provided for by law, refuses the accusation, this is an unconditional reason for closing such proceedings.
The main aspects of this type of proceedings include:
Start of proceedings:
Criminal proceedings in the form of a private indictment are initiated only at the request of the victim. The prosecutor and the investigator are obliged to start a pre-trial investigation on the basis of this statement. Thus, the active role in the opening of the proceedings belongs to the person who makes the application
In the judicial practice of Ukraine, including the professional practice of the author of the article, there have been cases when in criminal cases where the prosecution was carried out by the state and the state initiated the criminal prosecution of a person, at the final stage of the trial the prosecutor tried to change the prosecution from public to private and tried to close criminal proceedings in connection with the victim's refusal to support a private prosecution.In such a case, the lawyer of the accused must consider the illegality of such manipulations on the part of the state representative and the legal consequences for the client, and immediately react by voicing a reasoned objection to the motion to change the charge or appeal the court decision to change the charge and close the criminal proceedings.
It should be remembered that Ukraine guarantees damages for illegal prosecution, and one of the conditions for receiving compensation from the state for illegal actions of its representatives is the presence of an acquittal. A lawyer's client may be deprived of an acquittal if the prosecutor commits the illegal actions described above and the lawyer commits a lawyer's mistake, which consists in not contesting or not appealing the prosecutor's illegal actions or court decisions.
Burden of proof:
The bodies of the pre-trial investigation are responsible for proving the accusation. Victims' statements are the only reason for initiating criminal proceedings, and they do not need to prove their position.
Some criminal offenses in which private prosecution is possible (full list in Article 477 of the Criminal Code):
1. Intentional physical injury of moderate severity (Article 122).
2. Intentional slight bodily injury (Article 125).
3. Intentional task of hitting, beating or committing other violent acts without aggravating circumstances (Article 126).
4. Threat of murder without aggravating circumstances (Article 129).
5. Rape without aggravating circumstances (Article 152).
6. Forcing to enter into sexual intercourse (Article 154).
7.Violation of the inviolability of housing without aggravating circumstances (Article 162).
8. Disclosure of the secret of correspondence, telephone conversations, telegraphic or other correspondence transmitted by means of communication or through a computer (Article 163).
9. Unauthorized interference with the operation of electronic computing machines (computers), automated systems, computer networks or telecommunication networks (Article 361).
Conclusion:
Criminal proceedings in the form of private prosecution are an important tool of the legal system, which allows citizens to independently initiate criminal cases in cases of less serious offenses. This provides an opportunity for victims to protect their rights directly.
At the same time, such cases require lawyers to pay special attention to procedural details in order to avoid illegal manipulations by state representatives. A lawyer's appropriate legal response may include objecting to or contesting the prosecutor's actions, which ensures fairness in the trial and protection of the client's rights.
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