Distortion by the Supreme Court of the Russian Federation of the purpose of the institution of returning a criminal case to the prosecutor

Abstract: The institution of returning a criminal case to the prosecutor was introduced by the legislator into the Criminal Procedure Code of the Russian Federation for the purpose of eliminating procedural (unrelated to the collection of evidence) violations of criminal procedure law committed in pretrial proceedings, which preclude the possibility of considering the criminal case. However, numerous amendments to Article 237 of the Criminal Procedure Code of the Russian Federation have legitimised judicial interference in the investigation process, contrary to the principle of adversarial proceedings. Employing dialectical, systemic, and formal-legal methods, the author analyses the change in judicial practice approaches to the application of the institution of returning a criminal case to the prosecutor. The author demonstrates that the institution under consideration a) was created to shield the court from performing functions not inherent to it; b) is applied contrary to its intended purpose; and (c) operates in contradiction to the principles of the presumption of innocence and adversarial proceedings. The study showed that the institution of returning a criminal case to the prosecutor is applied by judges as a means of directing the procedural activities of criminal prosecution bodies, through which the judge not only manages pretrial proceedings but also initiates and directs prosecutorial activity, which results in the supplementation of deficiencies in the preliminary investigation and the change of charges to more serious ones. However, such activity of the court diverges from the objective that pursued the legislator when replacing the institution of returning the case for additional investigation with the institution of returning the case for the elimination of obstacles to its consideration by the court. The author concludes that the powers of the court, as well as the criminal procedural mechanisms applied by the court, should be analysed based on the idea of the presumption of innocence, and the further improvement of criminal procedure should follow the path of organising the criminal procedural activity of the court on the basis of the presumption of innocence.