THE BALANCE OF PRIVATE AND PUBLIC INTERESTS IN CRIMINAL PROCEEDINGS: JUDICIAL POLITY

Abstract

Every human activity, including judicial proceedings, is driven by interests. These interests can be private and social, state and public. They often do not align and may contradict one another. The challenge lies in finding their balance. The public interest represents a rational compromise between social and state interests. Achieving this balance depends on the nature and quality of the state and its ability to provide conditions for the coexistence of various conflicting private and social interests through mutual adaptations that optimise sustainable interactions among different social forces. Purpose: to identify the optimal relationship between the forms of state governance on one hand and the public interest on the other, so that a reasonable balance of public and private principles is observed; to determine the place and role of public and private interests in contemporary criminal proceedings; to formulate the basic requirements for the mechanism of criminal proceedings, which would meet the correct proportions of public and private elements in it. Methods: structural-functional analysis, comparative-historical, institutional, typological, evolutionary, genetic, and formal-legal methods. Results: the best conditions for balancing public and private interests can be created under a form of governance such as a republic-polity (in the Aristotelian sense), where all subjects of political action perform coordinated functions beneficial to the common good, and authorities take into account the rational interests of all categories of citizens. In the realm of criminal proceedings, this form of governance corresponds to the principle of strict legality (officiality) in criminal prosecution. Contemporary “Western” left-liberal democracies operating within a postmodern paradigm have proven incapable of ensuring this principle. The fate of criminal proceedings increasingly depends on relativistic notions held by authorities regarding what constitutes a crime; the positions of prosecutors and investigators concerning the expediency of criminal prosecution; and agreements made between victims and defendants in the name of restoring “public peace”. This significantly complicates the achievement of both private and general crime prevention goals. However, the balance of interests in criminal proceedings is not the same as reconciliation or “public peace”. It primarily represents a process and outcome of a fair procedural struggle among parties endowed with sufficient legal subjectivity; this interconnected status ensures that every interest, including private egoistic interests, is directed toward and objectively contributes to the common cause of justice. A fair balance of interests in criminal proceedings can be ensured if all evidence is collected by the parties solely within adversarial judicial procedures, including during preliminary investigations; if preliminary investigation authorities assume a neutral function of objective investigation rather than accusation; if the burden of proof is flexibly dependent on the actual capability of participants in proving specific facts of the case (objective “feasibility of proof”); and if the termination of criminal cases “by mutual consent” is permitted only for excusable (exculpatory) offences, whose social danger depends on the perception of the victims.