nazarov-a-d_disser

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INTRODUCTION

The rationale of the thesis research.

In the modern period it is deemed essential for the state to maintain crime, which is the aim of the criminal justice system with the observance of the rights of the individual being one of the most important means of achieving this aim.

The statistical data of the General Prosecutor's Office of the Russian Federation indicate that in 2016 there were 2,160,063 crimes registered in Russia, which is 228,413 fewer than in the same period last year – last year’s figure (-9.6%). On the whole in Russia, the proportion of serious and very serious crimes among all registered crimes is 21.2% (457,779; last year’s figure –

519,655; -11.9%). Almost half of all registered crimes (43.7%) account for the theft of another persons’ property – 871,084 (-14.5%), robberies – 61,524 (-15.4%), assaults – 11 416 (-16, 3%). With the general decline in the number of registered crimes in the territory of the Russian Federation, the number of terrorism-related crimes has increased by 44.8%, extremist related crimes by 9.1%. In 2016 there were disclosed 1,189,770 crimes being under proceedings, which is 5.2% less than in the same period last year (1,254,706). There were 983,355 crimes unsolved, which is 6.1% less than the last year’s figure. Of the total number of unsolved crimes, the grave and especially grave crimes accounted for 21.8% (last year’s figure – 22.5%). There were 932 unsolved murders and attempted murders (-22.5%), 2,171 cases of intentional infliction of grievous bodily harm (-20.6%), 559,636 burglaries (-8.7%), 23,806 robberies (-20, 3%), 3,028 assaults (-25.2%). 962,200 crimes were not solved due to the failure to identify the person to be charged as a defendant (-6.1%), which accounted for 97.8% of the total number of unsolved crimes1.

According to respected experts, with real crime level of 12-15 million of acts each year, a little more than 3 million, or 20-25% of actual crimes committed, are registered in Russia; for these crimes about 10% of perpetrators are found and about five out of 100 persons who actually committed crimes are sentenced to various punishments, with less than 1/3 being sentenced to imprisonment. Latent crime annually comprises about 80% or more out of the real crime (in Europe – about 50%). Every year about 7 – 8 million actual victims of latent crimes, who are lawabiding citizens, do not receive any legal assistance from the state2.

1The current criminal situation in Russia. М., 2017. P.5-9.

2See: Luneyev V.V. The era of globalization and crime. M., 2017. p.176. The data from other scientific experts differ from the above, but in general comparable. See, e.g.: Antonyan Y.M. Criminology: textbook for undergraduate students. M., 2015. P.62-65.

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The scientists of the Research Institute of the Prosecutor General's Office of the Russian Federation are more moderate in the estimates of latent crime in Russia, but, nevertheless, specify in its scientific report that each year law enforcement agencies get some information of about 4 million crimes. The factitious portion of latent crime is about 2 million acts having signs of a crime but not recorded in official statistics. The registration discipline is currently one of the main factors determining the number of registered crimes. The factitious latency is used by law enforcement agencies as a ‘buffer’ where, depending on the situation, they ‘hide’ or, on the contrary, from which they get statistics on the acts having elements of a crime to be registered3.

With the small number of those alarming figures above in the background, we can responsibly say that criminal procedural activity allows for numerous violations, shortages, errors, and sometimes, unfortunately, criminal acts on the part of the subjects conducting criminal proceedings.

The Russian Federation is constantly making amendments to the legal system aimed at the qualitative transformation of how courts and law enforcement agencies exercise their criminal procedural activities.

The most important directions of these changes are improving the organization of the state bodies conducting criminal proceedings, changes in the practice of judicial proceedings in order to ensure the inevitability of punishment, strengthening the regime of legitimacy and guarantees of observance of individual rights in the administration of justice for criminal cases.

But even with all things considered, with the quality of investigation of criminal cases and trying them in the courts of the state raises concerns. The subjects conducting criminal proceedings commit a significant number of errors in the complete, comprehensive and objective investigation of all the circumstances to be established in a criminal case, violations of the provisions of the Constitution of the RF, international legal standards and the national criminal and criminal procedural law. The most dangerous thing is deemed to lie in the fact that as a result of such errors a person may be unlawfully detained, unlawfully convicted and sentenced to excessively severe penalties, including prison sentences or, on the contrary, not detained illegally, acquitted illegally or illegally sentenced to an excessively lenient punishment. The price of investigative and judicial errors becomes high when the inquirer, the investigator, the prosecutor, the court do not detect the facts of illegal methods being applied (especially physical violence, torture) in operational-search and investigative-procedural activity, as well as the provocation of crimes by law enforcement officials of the state, and take decisions legally relevant to an individual based on the material produced by illegally and through provocation.

3 Legality: Status and trends in the 2010-2014. M., 2015. P.59.

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Errors committed in criminal proceedings by officials of the state undermine the public trust to justice. Constant strengthening and increasing the public trust to the administration of justice is important for normal functioning of the state institutions.

The need to minimize errors in criminal proceedings, compliance with reasonable timeframes, applying admissible evidence in proving of criminal cases predetermine the importance of studying the nature of investigative and judicial errors and generation of criminal procedure mechanisms to identify, rectify, and prevent them, at a conceptual level.

The extent of prior research of the topic.

The study of the complex issues related to the criminal policy of the state, observing the principle of legality, with organizational and legal mechanisms to identify, correct and prevent investigative and judicial errors have been conducted by the well-known legal scholars A.I. Aleksandrov, A.M. Baranov, A.D. Boykov, E.G. Veretehin, V.I. Vlasov, N.N. Voplenko, L.A. Voskobitova, L.V. Golovko, V.N. Grigoryev, V.A. Davydov, A.T. Dugin, V.V. Zolotyh, E.V. Kazgerieva, G.S. Khazinyan, A.S. Koblikov, Z.F. Kovriga, N.A. Kolokolov, Y.V. Korenevsky, A.B. Lisyutkin, S.G. Olkov, I.L. Petruhin, A.B. Solovyev, N.G. Stoyko, M.E. Tokarevа, S.A. Shaifer, A.A. Shirvanov, etc.

Perfecting organizational and institutional mechanisms to eliminate violations of legitimacy in criminal proceedings is still relevant. In certain periods, the study of various aspects of the above problems was carried out and reflected in a number of scientific papers by V.A. Azarov, A.S. Alexandrov, O.I. Andreyeva, A.S. Barabash, B.T. Bezlepkin, A.R. Belkin, V.M. Bykov, L.M. Volodina, K.F. Gutsenko, A.A. Davletov, V.G. Dayev, I.F. Demidov, I.S. Dikarev, Z.Z. Zinatullin, K.B. Kalinovskiy, L.M. Karneeva, A.A. Kirillova, N.P. Kirillova, N.N. Kovtun, A.A. Levy, V.Z. Lukashevich, P.A. Lupinskaya, Y.A. Lyakhov, V.N. Makhov, T.G. Morschakova, B.M. Nurgaliyev, A.D. Proshlyakov, E.M. Puchkovskaya, S.B. Rossinsky, M.K. Sviridov, N.A. Sidorova, A.V. Smirnov, I.V. Smolkova, T.V. Trubnikova, F.N. Fatkullin, A.G. Haliulin, Y.K. Jakimovich, N.A. Yakubovich, etc. These scientists have made a significant contribution to the theory of the criminal procedural law, perfecting of the legislation, law enforcement practice.

The fundamental works of the well-known scientists in the field of the criminal procedural law N.S. Alekseev, L.D. Kokarev, S.V. Kurilev, A.M. Larin, Y.K. Orlov, A.A. Piontkovsky, S.V. Poznyshev, V.D. Spasovich, M.S. Strogovich, P.N. Tkachev, A.I. Trusov, I.Y. Foinitskiy, A.A. Hmyrov, P.S. Elkind, etc., also contained research related to the compliance with the principle of legality in criminal proceedings and preventing violations thereof.

The specific topic of investigative and judicial errors in criminal proceedings has been covered in only a few theses in the past decade. The examples are the thesis for the Doctor of

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Juridical Sciences by A.A. Aubakirova ‘Investigative and expert errors when forming inner conviction’ (Chelyabinsk, 2010), theses for the Candidate of Juridical Sciences by E.I. Komarova

‘The impact of errors in pre-trial proceedings and the nature of the judicial situation on the tactics of public prosecution in the court of first instance’ (Voronezh, 2009), O.R. Idrisov ‘Powers of the cassation instance in identifying and eliminating judicial errors in Russian criminal proceedings’

(Tomsk, 2012), V.P. Kramarenko ‘Situational approach to identifying and overcoming investigation errors’ (Krasnodar, 2012).

The study of scientific works has led the author to the conclusion that the theory of criminal proceedings has not been given a conceptual analysis of the phenomenon of investigative and judicial errors, criminal procedural mechanism for their detection, correction and prevention at all stages of criminal proceedings, including with respect to the causes and conditions which give rise to these errors. The author of dissertation has attempted to fill this gap with his research, which also determines the relevance thereof.

The object of the research.

The object of the research is criminal procedure relations arising between the parties to criminal proceedings in the detection, correction and prevention of errors.

The subject of the research.

The subject of the research is the content (regularities) of criminal procedural activity, as a result of which errors occur, the organizational-legal, primarily criminal procedure mechanism for the detection, rectification and prevention of these errors in criminal judicial proceedings.

The aim and objectives of the research.

The aim of the study is, in the context of the modern criminal policy, to develop the conceptual basis of the phenomenon of investigative and judicial errors and, on this basis, to construct a criminal procedure mechanism for detection, correction and prevention of errors in criminal proceedings.

The above aim has conditioned the following tasks:

-to formulate the author's notion of the investigative and judicial error and the fundamental error in criminal proceedings;

-to develop a conceptual basis to detect, correct and prevent such errors in criminal proceedings;

-to develop and produce the structure and classifications of these errors in criminal proceedings, to conceptually analyze the causes and systemic factors thereof;

-to consider the notion and elements of criminal procedural mechanism error elimination in the system of state-legal instruments of organizational and legal mechanism of ensuring legitimacy;

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- to propose the author's version of the main components of the criminal procedure mechanism of detecting, correcting and preventing errors at pretrial and trial stages of criminal proceedings.

The methodology of the research.

The methodological basis of the study is the general scientific dialectical method of cognition. This method is combined with other scientific and special methods of cognition: formallogical, system-structural, historical and legal, statistical, etc.

To rationalize the results of the study, the author has applied the comparative law method (in the analysis of the main components of criminal procedure mechanism of eliminating investigative and judicial errors, etc.).

On the basis of empirical data, as well as his practical experience in the field of criminal justice, the author of the thesis, with the help of the above mentioned methods of scientific knowledge, has developed proposals of how to improve the institutional and legal mechanisms for detecting, correcting and preventing investigative and judicial errors.

The theoretical basis for the research.

The study has utilized the results of theoretical research in the field of philosophy, sociology, psychology, the general theory of state and law, comparative law and criminology, criminal law and criminal procedure law.

Regulatory and information basis for the research.

The study is based on the legislation of the Russian Federation, the case law of the Constitutional Court of the RF and the Supreme Court of the RF and the European Court of Human Rights, essential reference materials.

The empirical basis of the research.

The study utilizes Russian statistics data on crime, as well as annual statistical reports of the performance results of courts, prosecutors, and the pre-trial investigation, of national and regional levels for 2010-2015, processed by the author in the context of the topic of this study. In 2003-2016, the author conducted a research and acquired the data from the survey of 187 district, municipal courts and the Federation level courts judges, 218 municipal prosecutors and prosecutors of the Federation level, 254 heads of investigative agencies and investigators of municipal departments and investigation departments of the Federation level, 305 defense lawyers, conducted ‘in-depth’ interviews with 16 experienced judges of the Federation level courts, studied 510 archival criminal case files for various categories of crimes selected by random sampling in Krasnoyarsk, Stavropol and Khabarovsk territories, Tomsk, Leningrad region and St. Petersburg, the Republic of Khakassia and Buryatia.

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The author utilized the results of his participation in Russian and international grant programs, human rights monitoring programs and sociological researches, as well as the materials of his scientific internship in the Constitutional Court of the Russian Federation, scientific and human rights internships in Germany, Austria, the USA, the UK and Israel.

The thesis reflects the long-standing human rights activity (including – experience in legal counseling practitioners in specific criminal cases) and the advocacy of the author, as well as his working experience in investigation agencies, the prosecutor's office and the court.

The academic novelty of the research.

The novelty of the study is that the conceptual basis of the phenomenon of the investigative and judicial errors has been developed by the author for the first time, and on this basis the criminal procedural mechanism of eliminating them in criminal proceedings has been developed.

In particular, the author has developed the notion of the investigative and judicial error and the fundamental error in criminal proceedings; developed a conceptual framework for elimination of errors in criminal proceedings; demonstrated the structure and classification of these errors in criminal proceedings, specifying their causes; discussed the concept and elements of the criminal procedural mechanism of elimination of errors in the system of state-legal means of the organizational and legal mechanism of ensuring legitimacy; presented his versions of the notion and structure of the criminal procedural mechanism of elimination of errors, including the main mechanisms (control and supervisory activities of eliminating errors at the pre-trial stages of criminal proceedings and the judicial mechanism of eliminating errors) and accessorial (the mechanism of self-scrutiny associated with making procedural decisions and assessing the admissibility of evidence in the activities of authorities and the mechanisms of facilitation to the elimination of errors on the part of the legal counsel and other subjects).

Special attention in criminal procedure mechanism of eliminating investigative errors is drawn to the models of "dynamic judicial control", "permanent prosecutor's supervision" and "heteropolar institutional control", developed by the author. Special rationale is provided by the author when characterizing of the models of "the active court of the first instance", "comprehensive appeal", "comprehensive cassation and supervision", "comprehensive investigative model of proceedings for new and newly discovered circumstances" developed by the author in the context of elimination of miscarriages of justice.

In addition, an important element of the novelty of the study is the special purpose of criminal proceedings, defined by the author, – the elimination of errors therein, as well as a number of proposals on amendments to the organizational and legal support of the criminal procedure mechanism of eliminating investigative and judicial errors.

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The key propositions of the thesis research to be defended:

1. The investigative and judicial error in criminal proceedings, as a subject of scientific research, has been studied as a phenomenon which is expressed in the contradiction between the inevitability (naturality) of errors and the need to counteract them and thereby leads to the issue of their eliminability.

The error (investigative, judicial) is an unreasonable or unlawful act or omission, not containing features of criminal acts, of subjects conducting criminal proceedings expressed in incompleteness, one-sidedness and biased approach to the investigation by these subjects of the criminal case circumstances, failure to observe the constitutional human and civil rights and freedoms, as well as the international fair trial standards, a substantial violation of the criminal procedure law, incorrect application of the criminal law corresponding to their subjective attitude to the purpose of criminal proceedings and its objectively hindering the statutory achievement due to the improper procedural outcome (solution) received (due to possibility to receive such result).

2.The concept of elimination of investigative and judicial errors developed in this research provides solution for a whole complex of fundamental theoretical and practical problems concerning the phenomenon of these errors requiring a doctrinal interpretation, as well as the relevant legislative and law enforcement (in view of the modern criminal policy) in order to improve the organizational and legal, including criminal procedural, error elimination mechanism. Considered together, all these elements of the system being studied (the notion of the error, its structure, classification, causes, concrete mechanisms of elimination, etc.) have amounted to a complete concept of eliminating investigative and judicial errors.

3.The main classification of investigative and judicial errors (along with other classifications considered in the study) is their division according to the essential characteristic

into the following types:

a)errors manifested in incompleteness, one-sidedness and biased investigation of the criminal case circumstances;

b)errors expressed in non-observance, during criminal proceedings, of constitutional rights and freedoms of the man and the citizen, as well as international standards of criminal proceedings (the fair trial);

c)errors expressed in significant violations of the criminal procedural law;

d)error expressed in wrong application of the criminal law.

4. A new kind of investigative and judicial errors should be defined – fundamental errors. Fundamental errors are non-criminal acts or omissions of subjects conducting preliminary investigation and trial of a criminal case involving a substantive violation of legitimate rights and

interests of people, society and the state in criminal proceedings:

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a)failure, by subjects conducting preliminary investigation and trial of a criminal case, to detect application by officials of criminal justice agencies of unlawful violence to obtain the testimony regarding the crime from ‘suspicious’ persons, suspects, the accused;

b)failure, by subjects conducting preliminary investigation and trial of a criminal case, to detect application by officials of criminal justice agencies of provocations for criminal acts in relation to ‘suspected’ persons;

c)errors by subjects conducting preliminary investigation and trial of a criminal case in collection, verification and evaluation of evidence in a criminal case, in application of the criminal law when as a result the suspect, the accused have been illegally detained (not detained), is illegally kept (not kept) in custody; the defendant has been unlawfully convicted, especially with an overly harsh sentence associated with imprisonmetn, unlawfully acquitted or received an excessively lenient sentence.

5. Structural (qualitatively and quantitatively) investigative errors have been found during the research with the following ranking: a) errors expressed in incompleteness, one-sidedness and biased approach to investigation of the criminal case circumstances amounted to 57.0% of the total number of errors; b) errors expressed in non-observance in the criminal trial of the constitutional human and civil rights and freedoms, as well as international standards of criminal justice (fair trial) amounted to 8.0%; c) errors, expressed in significant violations of the criminal procedural law amounted to 16.0%; g) errors expressed in wrong application of the criminal law amounted to 19.0%.

The research identified the structure of miscarriages of justice in the following ranking: a) incorrect application of the criminal law (70.92%); b) sentence injustice (3.22%); d) violation of the criminal procedural law (20.86%); e) inconsistency of the court conclusions outlined in the judgment with the factual circumstances of the case established by the court of the first instance, of the appeal, cassation instances (5.0%).

The study of the structure of investigative and judicial errors has given the author an opportunity to trace the dynamics of errors and build effective mechanisms for their forecast and elimination.

6. The causes of investigative and judicial errors (largely determining the criminal procedural mechanism to eliminate them) should be ranked at three levels:

–immediate causes characterizing the shortcomings in the investigation and trial of specific criminal cases (the first level causes);

–causes of investigative and judicial errors related to the activity of the investigator and the judge, the personality of the investigator and the judge, i.e. subjective reasons, and the

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conditions in which the activity takes place, i.e. objective reasons (the second level causes, or ‘the causes of the first level causes’);

– factors determining the first and second level causes and related to conditions for the activities of the preliminary investigation and the judicial system as a whole in Russia (the third level causes).

Moreover, the causes of investigative and judicial errors are classified according to the scheme ‘the case – the investigator, the judge – investigating apparatus, the judicial system’ allowing them to be explored deeply and to scientifically substantiate the recommendations for neutralizing the effect of these causes.

7. The criminal procedural mechanism of eradicating investigative and judicial errors is associated with the implementation (predicated by the necessity) of the criminal and political strategies of prosecution (accusation) and protection of human rights and freedoms and presents a united system of the following components:

a)steps (and action algorithms corresponding thereto): detection, correction and prevention (in some cases – ‘forecasting’) of errors;

b)the main parts (separate mechanisms):

– mechanisms of preliminary investigation;

–mechanisms of the trial court proceedings;

– mechanisms of higher court proceedings.

c)special subjects, special legal status of these subjects and special legal regulation of the procedure of their activity: the head of the inquiry unit, the head of the inquiry agency, the head of the investigative agency, the prosecutor, the judge, the court of the first instance, courts of higher instances;

d)special methods of co-organization of the special subjects activity;

e)a specifically defined purpose substantially defining and unifying the whole criminal procedural mechanism or separate parts thereof (mechanisms) – detection, correction, prevention of investigative and judicial errors.

Due to its scope and significance, this goal may be put on a par with objectives of criminal proceedings, classically defined in the theory of criminal procedural law, – establishing the truth in a case, the protection of the victim of a crime, identification and just punishment of the guilty, rehabilitation of the innocent, general and special prevention, etc.

8. The criminal procedural mechanism of eradicating investigative and judicial errors is divided into two main mechanisms, specifically addressing the error elimination, and two accessorial mechanisms, not specifically designed but facilitating the elimination of errors.

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The main mechanisms:

a)The mechanism of control and supervisory activities of error elimination at the pre-trial stages of criminal proceedings.

b)Judicial mechanism of error elimination.

The accessorial mechanisms:

a)The self-scrutiny mechanism associated with the adoption of procedural decisions and assessing the admissibility of evidence in the activities of authoritative subjects.

b)The mechanism of facilitation to error elimination on the part of the defense lawyer and other subjects.

The mechanism of control and supervisory activities for error elimination at the pre-trial stages of criminal proceedings includes judicial review, the prosecutor's supervision and institutional control.

The judicial mechanism of error elimination consists of judicial review of the criminal case and judicial supervision.

The judicial review of the criminal case comprises adjudicating the case and its resolution on the merits in the court of the first instance and appeal instance. Moreover, judicial examination in the trial court does not have a specifically defined (assigned) goal of eliminating errors meaningfully defining and co-organizing all activities at this stage of proceedings (although objectively supposing identifying, correcting and preventing errors).

Judicial supervision is a review by higher courts of judgments of lower courts under cassation procedure, supervisory procedure (judicial inspection), with the higher court providing clarifying directives to lower courts and other law enforcers on the issues of criminal proceedings. Reopening cases due to new and newly discovered circumstances is also connected with judicial review.

Accessorial mechanisms (though they are essential) are sort of ‘embedded’ in the criminal procedural activity in general and may therefore only be considered as conditions facilitating the normal conduct of criminal proceedings through inner self-scrutiny (self-test) or external participation (assistance), including in the framework of the main mechanisms.

9. The mechanism of controlling and supervisory activity in the elimination of investigative errors in Russian pre-trial proceedings in criminal cases is notably different from similar mechanisms in other states, which is reflected in the following:

- the distribution between the judiciary, the prosecuting authorities and the bodies of inquiry and investigation functionally homogeneous for each of these bodies supervisory authority: for judicial review, the prosecutor's supervision and departmental (in fact, intra) control, respectively; – the interdependence and complementarity of judicial review of prosecutorial