POSTPONEMENT OF THE COURT PROCEEDING DUE TO THE PROSECUTOR’S FAILURE TO APPEAR AT THE COURT SESSION

Abstract

The purpose of the article is to study the non-arrival of the prosecutor at the court session as a reason forpostponing the trial.The methodological basis of the research is general scientific and special legal methods, in particularstatistical, dialectical, hermeneutic, dogmatic.The results. In the article, based on the analysis of criminal procedural regulation and law enforcementpractice, a scientific investigation of the reasons for postponing the trial due to the prosecutor’s failure toappear at the court session and prosecution for violation of procedural rights and duties was carried out.Not every postponement of a trial is due to objective circumstances. It is often the result of abuse of proceduralrights by the prosecutor’s office, and, therefore, disrespect for the court and other participants in the criminalproceedings. The analysis of judicial practice shows that there are rare cases of procedural errors madeduring the application of this ground, which to some extent leads to a violation of the continuity of criminalproceedings, the reasonableness of the terms of its conduct and completion.It is claimed that one of the most common grounds for postponing a trial is the non-arrival of the prosecutorat the court session without providing documents justifying such non-arrival. In connection with such abuse,in 2018 the Commissioner of the Verkhovna Rada of Ukraine recommended to the General Prosecutor’sOffice of Ukraine to conduct a generalization of the reasons for non-appearance of prosecutors for courtproceedings, in addition to systematize the reasons and determine possible ways to overcome the reasons fornon-appearance.It is justified that it is necessary to enshrine the duty of the court to notify the head of the prosecutor’s officeabout the cases of repeated non-appearance of the prosecutor at the court session without valid reasons orlong-term drawing up and approval of procedural documents by the prosecutor.Conclusions. An important criterion for assessing the effectiveness of the prosecutor’s office employee’sexercise of powers during a trial is the maintenance of a public accusation and participation in the trial.Proceeding from this state of affairs, part 1 of Art. 324 of the Criminal Procedure Code of Ukraine providesfor the possibility of the court to take measures for the arrival of the prosecutor at the court session, however,the criminal procedure law does not give the court any effective powers to oblige the prosecutor to attendthe trial and in case of abuse to prosecute. In addition non-arrival of the prosecutor during the trial is oneof the most common reasons for postponing the trial in criminal proceedings. The study of statistical dataand law enforcement practice gives reason to assert that prosecutors sometimes do not appear at courthearings without valid reasons, i.e., without providing supporting documents regarding the possibility of notappearing for court hearings at the specified time and place. Analysis of the norms of the Criminal ProcedureCode of Ukraine, that in order to take measures for the prosecutor’s arrival at the court session, the courtcan raise the issue of the prosecutor’s responsibility, however, this method is not always effective, besides, noguarantee is provided to ensure the prosecutor’s arrival at the court hearing.It is important to emphasize that the non-arrival of the prosecutor is not necessarily due to his fault,sometimes there are cases when it does not depend on his will (for example, excessive workload, which involvesmaintaining a public accusation in different courts), and therefore it is not possible to be present in two courtsat the same timeFrom the above, it can be concluded that the court is deprived of effective means of influencing the nonappearanceof the prosecutor at the trial, and therefore the only mechanism for responding to the disrespectful reasons for the prosecutor’s non-appearance is the postponement of the trial. In view of this, the issueof compliance with reasonable deadlines and the possibility of the prosecutor to drag out the trial for a longtime, which will lead to the violation of the basic principles of the criminal procedural law, remains difficult.In addition, in the article, I draw attention to the fact that we are dealing not only with the non-arrivalof the prosecutor for the trial, but also with other reasons for the postponement of the trial, such asthe postponement of the trial in connection with the need to replace the prosecutor, in connection with a changein the indictment, by refusing to maintain a public accusation.The following conclusions can be drawn from the cited judicial practice: 1) the prosecutor must be presentat court sessions; 2) the group of prosecutors does not provide an opportunity to ensure the prosecutor’sarrival at the trial; 3) the only mechanism for the prosecutor’s non-appearance at the court session is topostpone the trial and raise the issue of the prosecutor’s responsibility before the body authorized to bring todisciplinary responsibility.