nazarov-a-d_disser

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supervision and institutional control (functional and object relationships); – the procedural independence of the supervisory authority : full – court, a relatively complete – prosecution and investigation authorities, limited – the bodies of inquiry.

The specificity of this mechanism is determined by the technical features of the organization (which is continental according to its historical form) of Russian pre-trial proceedings as a whole. In contrast to the German type of such organization, Russian pre-trial proceedings do not have the prosecutorial sovereignty over the investigation and is characterized by the separation of functions between the inquiry and the preliminary investigation, the prosecutor's supervision over the whole investigation and the prosecutor's sovereign guidance only of the inquiry. In contrast to the French type, they do not have judicial preliminary investigation, which is structured on the principle of instances (with no prosecutorial control and almost complete absence of external judicial control). So, there is every reason to speak about the Russian form of the organization of pre-trial proceedings and, consequently, of its corresponding specific Russian error recovery mechanisms, the development of which should be carried out in the framework of the three models: the "dynamic of judicial control", "permanent prosecutor's supervision" and "heteropolar institutional control ".

10. The notion of judicial review only applies to the verification activities of the court at pre-trial stages of criminal proceedings and listing of the court hearing. Judicial review applies to a relatively limited number of investigative and other procedural actions and reduced to the judicial review of the legality and validity of these actions affecting the constitutional rights of an individual.

Based upon the provisions of the Constitution of the RF, the study has identified three main types of judicial review at pre-trial stages of criminal proceedings and names them (with a certain degree of conditionality) ‘arrest control’, ‘procedural control’ and ‘complaints control’.

The judicial review in the criminal trial (in the context of the error elimination) is developed in the study as ‘a model of dynamic judicial review’ of the pre-trial proceedings, i.e. a model that is constantly being improved and is procedurally significant to ensure observance of the constitutional human and civil rights and freedoms in criminal proceedings. This model will:

– expand the jurisdiction of judicial review by introducing new types thereof: ‘evidence deposit’, i.e. legalization of a limited, and in clearly defined cases, number of certain evidence at pre-trial stages, and ‘pre-trial supervision’, i.e., especially significant for proof and hearing of a criminal case on the merits, control activities at the stage of listing of the court session (determining at the preliminary hearing decisions with regard to a preventive restrictive measure for the

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defendant, admissibility of evidence collected in the case, jury trial, a panel of three judges, a single judge, under a special procedure, etc.);

–toughen the requirements for ‘arrest’ control (collecting, checking and evaluation of specifically evidence with regard to the reasonableness of the suspicion of the suspect and the accused in the acts incriminated and his conduct in the course of criminal proceedings);

–reform the ‘procedural’ control and ‘complaints control’: transfer from the court to the prosecutor some review and supervisory powers, thus reinforcing the existing control – the original

‘public prosecutor's approval’ of investigative and other procedural actions provided for in Art. 165 of the Code of Criminal Procedure of the RF, with the possibility of further appeal the prosecutor’s decisions with regard to these matters to the court in compliance with Article 125 of the Criminal Procedure Code of the Russian Federation;

– not limit the effect of ‘the control over complaints’ (for example, will allow to appeal the decision to prosecute a defendant and so forth.).

The study proposes to reform the current judicial review in accordance with the developed

‘model of dynamic judicial review’ over pre-trial proceedings, as well as to improve the organizational structure of judicial activities in the preliminary investigation control (primarily, a certain separation of these judges from federal judges hearing criminal case on the merits, as well as under appeal procedure).

11. In the context of eliminating errors the author has developed a ‘model of permanent prosecutorial supervision’ over initiation of criminal cases and their preliminary investigation: the permanence involves continuous (constant) procedural control over the implementation of the criminal prosecution by the prosecutor.

This model includes a number of features: an objective necessity and historical conditionality of the prosecutor's supervision; non-departmental and comprehensive prosecutor's supervision; permanence of prosecutorial supervision granting the prosecutor the powers of the head of criminal prosecution; ‘pretrial’ nature of prosecutorial supervision and restrictions for the prosecutor in a limited range of final decisions.

‘The model of permanent prosecutor's supervision’ has a priority in control and supervisory activities during pre-trial proceedings in a criminal case. It effectively allows one to implement strategies of criminal prosecution and protection of human rights. As the leader of the prosecution, the prosecutor should have, in addition to the ones already granted to him, power and authority to initiate such prosecution, to overrule all illegal decisions of the investigator, to prolong the preliminary investigation, to approve (as a guarantee of legitimacy) the implementation of procedural actions, encroaching on constitutional rights and freedoms of the man and the citizen, to press final charges to a person, to terminate the criminal prosecution, and so forth.

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Under this model of the prosecutor's supervision, it is possible to legislatively transfer some powers of the court at the pretrial stages of criminal proceedings to the prosecutor.

12. The definition ‘institutional control’ is presented as two important components thereof: procedure control regulated by the provisions of the Code of Criminal Procedure of the RF and other institutional control regulated by departmental regulations and established practice, including the organizational and administrative management of the investigator activity.

The institutional control over initiating criminal cases and preliminary investigation (in the context of error elimination) is shown through the ‘model of heteropolar institutional control’ as specific control and surveillance activities with various formats of such control at the low (city, district and settlements equivalent thereto) and high (Federation subject and the ones equivalent thereto) levels of investigative activity.

Heteropolar nature of such institutional control implies including elements of mentoring and personnel training with them being implemented under the supervision of the prosecutor's office and expressed in the procedural and administrative activity of the head of the investigative agency.

Institutional control (along with the prosecutorial supervision) operates permanently throughout pre-trial proceedings. At the low level of investigative units it allows the seniors of investigative agencies to totally control criminal procedural activities of investigators (especially of those who are just beginning their investigatory careers). At other (higher) levels of investigative agencies it allows to reasonably combine (without ‘total control regime’) institutional control with the procedural independence of the investigator. Moreover, institutional control interacts with judicial supervision and the prosecutor's supervision and depends on them to a certain extent.

It is only under such conditions that institutional control may:

-successfully identify, correct and prevent errors in the pre-trial investigation;

-minimize the risk of their own errors (errors of the heads of investigative agencies);

-to achieve the strategic objectives of criminal prosecution and protection of the human

rights.

13. The judicial mechanism of eliminating errors in Russian criminal proceedings at trial stages which has a number of general and special features:

–the judicial review in the trial court is distributed between professional courts and jury courts (with the general jurisdiction of the former and narrow of the latter);

–the functional homogeneity of the whole judicial review in all courts of the first instance (except for the judge-professional in the jury court not having the duty to take a decision on the fact of guilt of the defendant and the judge-professional in the hearing under a special procedure not having the duty to directly examine the evidence confirming the guilt of the defendant);

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–the investigation activity of all judges-professionals when exercising the judicial review in the trial court (equal – under the general procedure of trial and in the jury trial, limited to the study of written materials of the case for all issues and the possibility of direct examination of evidence only for punishment issues – under the special procedure of judicial consideration);

–the possibility of full appeal under the procedure of judicial review in a court of the second instance;

–functional division of judicial review in the court of the second instance into cassation, supervision and renewal of cases due to new and newly discovered circumstances;

–functional homogeneity of cassation and supervision;

–revision procedure for all types of review of the trial court decisions;

–the binding force of guiding explanations of the court of a higher instance.

The peculiarity of judicial review and judicial supervision in Russian criminal proceedings is determined by the characteristics of the technical organization (continental due to the historical form thereof) of Russian judicial proceedings. However, it mainly concerns the jury court and the role of guiding explanations of the highest court (if not to take into account, most likely temporary, coexistence of two homogeneous functions – cassation and supervision). Overall, therefore, the construction of Russian judicial proceedings has significant similarities to the classic continental model with its inherent mechanism of eliminating errors, the development of which should be carried out in the framework of the following models: ‘the model of the active first instance court’,

‘the model of comprehensive appeal’, ‘the model comprehensive cassation and supervision’, ‘a comprehensive investigation model of proceedings for new and newly discovered circumstances’.

14. This thesis research focuses on the fact that the court of the first instance administrating justice in criminal cases in the usual ‘regular’ regime with adherence to the procedural norms and principles of criminal proceedings has all procedural possibilities under the current legislation to strictly fulfill the purpose of criminal proceedings, including at the same time, if necessary, to achieve the special purpose of criminal proceedings – to identify, correct and prevent investigative errors.

The administration of justice in criminal cases is presented in the study (in the context of the elimination of errors) by ‘the model of active court’ where both the court itself and the prosecutor are active in the complete, comprehensive and objective establishment of the material truth in a criminal case using the provided by the criminal procedural law powers for declaring evidence inadmissible, determining acquittals, referring a criminal case to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure of the RF, etc. This model is focused on the priority of the collegial hearing of the criminal case by a jury court or a panel of professional judges (in the first place – for particularly complex, with many elements, high-volume cases),

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hearing under the ordinary, not special, procedure with audio-video recording of the trial. It is this

‘model of the active court’ that will allow, firstly, to minimize the number of judicial errors and, secondly, to efficiently and effectively detect, correct and prevent investigative errors.

15. In the context of elimination of errors the dissertation study has developed a ‘model of comprehensive appeal’.

In this model:

–all witnesses presented to the court by the parties of criminal proceedings are to be questioned during the court hearing;

–all the motions of the parties are to be reasonably, lawfully and justly adjudicated.

The author of the study has rationalized his proposal to transform the second instance in accordance with the developed ‘model of comprehensive appeal’.

16. The author has developed ‘a model of comprehensive appeal and supervision’ which includes the following essential elements:

–the possibility of the supervisory-cassation proceedings to be initiated not only by the parties to a criminal trial, but by the presiding judges (deputy presiding judges) of the courts of the Federation subjects and the courts corresponding to their level and the Supreme Court, with respect to the specificity of supervision and control proceedings, designed to consider not ‘questions of fact’ but ‘questions of law’, moreover, questions of fundamental violations of the law;

–the duty of officials involved in the orbit of the supervisory-cassation activities (experts, assistant judges, the judges of the Federation subject courts and the Supreme Court of the Russian Federation) to study not only the cassation and supervisory complaints and petitions from the parties and materials attached to these petitions, but criminal cases too, including the audio-video recordings of the hearings of the case.

–the duty of judges to make their final ‘exemption’ decisions reasonably: for every argument of the complaint submitted by the participants of the trial to give detailed arguments based on the materials of criminal cases studied.

The study proposes to implement all the elements of their ‘comprehensive model’ in the existing cassation and supervision.

17. In the study there has been developed ‘a comprehensive investigation model of proceedings for new and newly discovered circumstances’ implying a broad definition of ‘new circumstances’ (any judicial errors which led to an unjust judicial decision, including ignoring of the evidence collected in the case, an erroneous assessment thereof, incorrect application of the criminal law) and allowing the investigation procedure of checking the new circumstances in the case.

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It is proposed to reform the existing procedure for new and newly discovered circumstances in accordance with its ‘comprehensive investigative model’.

The theoretical value of the research.

The theoretical value of this research is determined by the fact that this research has solved a whole complex of legal problems associated with the concept of correcting errors in criminal proceedings; developed a scientific basis for defining the notion of the error (investigative, judicial) and the fundamental error in criminal proceedings; studied the strategic issues of the criminal procedure policy in the context of the organizational-legal mechanism of eliminating errors in criminal proceedings, with the results having contributed to the development of regulatory guidance on the identification, prevention and correction of errors in the framework of the criminal procedure mechanisms proposed by the author.

The practical value of the research.

The practical value of the research is that the provisions, conclusions and recommendations rationalized therein may be applied (taken into account) in practical and legislative activity and when reforming Russian criminal judicial proceedings.

Testing and implementation of the research results.

The results of the research are reflected in monographs, textbooks and other scientific publications of the author of the thesis.

Certain provisions of the thesis were presented by the author at the meetings of the Departments of Criminal Procedure and Criminalistics of the St. Petersburg State University and the Siberian Federal University, Department of Criminal Procedure, Prosecutorial Supervision and Law Enforcement Research of Tomsk State University, as well as at international, national and regional research and practice conferences.

The materials of the dissertation research were used during theoretical and practical sessions with judges, prosecutors, investigators, lawyers. They have been introduced in the educational process of Siberian Federal University Law Institute, the Institute of Further Training of Lawyers of the Bar of Krasnoyarsk Territory within the courses "Criminal proceedings" and "Law enforcement authorities", the special courses "The investigating errors in criminal proceedings", "Application of evidence obtained in the course of operational search activities".

The methodical recommendations of the author, and his colleagues at the department of criminal procedure and criminalistics of the Law Institute of Siberian Federal University, associated with the detection, correction and prevention of errors by investigators have been sent to the Main Investigation Department of the Investigative Committee of the Russian Federation in Krasnoyarsk Territory, the Chief Investigation Department of the Main Directorate of the Russian

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Interior Ministry in Krasnoyarsk Territory for study and practical application by the investigators of the territory.

The structure of the thesis.

The thesis consists of an introduction, four chapters, divided into paragraphs, conclusions, consistent with the aims and objectives of the research; bibliography and a separate volume of appendices.

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CHAPTER 1. ERRORS AS A PHENOMENON OF CRIMINAL PROCEDURE

ACTIVITY

§1. Errors in criminal proceedings as the subject of scientific research

If we make a brief historical review, we may see that it was a certain group of scientistsprocessualists who fundamentally addressed the definition and research of investigative and judicial errors in criminal procedure science.

Specifically, in the 19th century, edited by the well-known Russian scientist and expert in criminal law and criminal procedure P.N. Tkachev, there was a book on miscarriages of justice published, which was presented as the guidance for the jury. Having analyzed the nature of judicial errors and their typical features, the authors of this book made a number of findings significant for the objectives of this study, which we shall bear in mind hereafter:

- if there is ‘one out of fifteen chance to be wrongfully convicted’, then ‘we are forced to acknowledge the great wisdom of the old saying: it is better to forgive ten guilty persons than to convict one who is innocent;

-a commutation of sentence may be applied as a compensation for the error (it is no coincidence that the authors were against the death penalty, again, because of the probability to commit a miscarriage of justice);

-collegial criminal case hearing mitigates the risk of error4.

In the seventies of the twentieth century in the Federal Republic of Germany, the fundamental work on errors was written by the famous German jurist Carl Peters. In his study, the researcher analyzed the sources of errors in criminal proceedings and concluded, which is important for the objectives of our study, that errors are unavoidable in criminal cases and repeat constantly5.

At the same time in the Soviet Union, for the first time ever, a large group of well-known legal scholars of the Institute of State and Law of the USSR Academy of Sciences (M.A. Avdeev, V.G. Alekseev, G.Z. Anashkin, A.D. Boykov, Y.A. Lukashov, K.S. Makukhin, T.G. Morschakova, with team leaders being V.N. Kudryavtsev and I.L. Petruhin) conducted academic research of miscarriages of justice.

4Judicial errors dedicated to jurors / Ed. P.N. Tkachev. - St. Petersburg: Publishing of Y. Lukanin and Co. - Vol 1, 1867. P. 2, 4, 81.

5Peters K. Fehlerquellenim Strafprozess: Eine Untersuchung der Wiederaufnahmeverfahren in der Bundesrepublik Deutschland. 3 Baende. Mueller, Karlsruhe, 1970-1974.

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The scope of the study is impressive: the researchers analyzed the judicial statistics of several decades, starting with the 1830s; using a specially designed questionnaire survey, they interviewed nearly one-third of all the judges of the USSR and more than 2,000 convicts; applying specially composed forms, they studied over 1700 criminal archive files; they applied the most advanced contemporary ways of processing information.

The research results were presented in a number of fundamental monographs, including those classified ‘for official use only’: so unexpected were the results and recommendations of the jurists with regard to the eradication of errors in judicial activity6. Indeed, the acute, which was unusual for the Soviet time, nature of the research caused the ban on the public distribution of these works. The political leadership of the country did not accept the results of the research; scientific works of these scientists did not become the guidance for judges, prosecutors, and investigators.

The researchers showed the prevalence, structure, and dynamics of miscarriages of justice, ways of the elimination thereof. The scientists studied how the efficiency of justice was influenced by social and psychological factors, the scientific organization of labor in People's Courts, the characteristics of judicial personnel, the criminal policy, rulings of higher courts, positions of the prosecutor’s office and legal representatives7.

The fundamental study of miscarriages of justice carried out by the scientists of the Academic Institute paved the way to an important breakthrough in the theory of the efficiency of justice and the evaluation of the quality of the criminal trial8. However, it should be noted that the research paradigm put the trial judge of the first instance in a position dependent on the discretion of higher courts judges: it was superior judges who were allowed to officially identify a miscarriage of justice by subordinate judges. These scientists specified the trend to further research the efficiency of justice, which was continued in scientific researches, for example, of the effectiveness of investigation activities9.

6Efficiency of Justice and the Issue of Eliminating Judicial Errors / M.I. Avdeyev, etc.; Ch. Ed. V.N. Kudryavtsev; M., 1975. P.1. 298 p.; Efficiency of Justice and the Issue of Eliminating Judicial Errors / M.I. Avdeyev, etc.; Ch. Ed. V.N. Kudryavtsev; M., 1975. P.2. 299p.

7Anashkin G.Z., Petruhin I.L. Efficiency of Justice and the Issue of Eliminating Judicial Errors // The Soviet State and Law. 1968. №8. P. 59.

8Issues of the Efficiency of Soviet Criminal Proceedings. Collection of articles under edit. by F.N. Fatkullin. Kazan: Kazan University Publishing House, 1976. – p. 160; Strogovich M.S., Alekseeva L.B., Larin A.M. Soviet Criminal Procedure Law and the Issues of its Efficiency. M.: Publishing House “Nauka”, 1979. - 320 p.; Petruhin I.L., Baturov G.P., Morschakova T.G. Theoretical Basis of Effective Justice. M.: Publishing House "Nauka", 1979. - p. 392; Morschakova T.G., Petruhin I.L. Evaluation of the Quality of the Trial (in Criminal Cases). M.: Publishing House "Nauka", 1987. - 239 p.

9See: Shaifer S.A. Investigative Actions. The system and the Procedural Form. M.: Jurid. Lit., 1981. P.94-111 .; Shafer S.A. Collection of Evidence in the Soviet Criminal Proceedings: Methodological and Legal Issues. Saratov: Saratov University Publishing House, 1986. P. 143-152.

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In the late 80's - early 90’s of the last century, a study of investigative and judicial errors was conducted by scientists under the auspices of the All-Soviet Union Research Institute of the General Prosecutor's Office of the USSR10. It was a large-scale study applying special techniques and involving administrative resources of the Prosecutor General of the USSR. It was natural that only some fragments of this departmental research were open to public academic publication.

The current stage of scientific study of judicial errors is characterized by the expansion of the subject area of their occurrence and individual manifestations: investigative and judicial errors are studied in the context of and in conjunction with expert and forensic errors. For example, scientists address errors, both organizational and tactical, associated with investigation planning, developing leads, assigning a group of investigators to the case, conducting urgent (initial) investigation, the use of technical means, criminal records etc.11 In the context of the procedural peculiarities of investigative and judicial errors, the study of expert and forensic errors, as well as immediate search activity errors, psychological, administrative and other errors, is overdue; however, such errors should be subject to independent research.

Thus, historically rooted nature and characteristics of investigative and judicial errors allows us to further substantiate some conceptual approaches to the study of this legal phenomenon.

Any error in common usage meaning is an irregularity, an inaccuracy, a defect, a lapsus, a flaw, a blunder, a wrong thought, a wrong or false step, a wrongful act or omission, etc. In dictionaries of the Russian language the error is defined as an inaccuracy in the actions, activities, sayings, thoughts12.

The error is a multidimensional phenomenon which occurs in absolutely all areas of practical and intellectual activity. Scientific approaches to understanding the error are different: it all depends on what area the phenomenon is considered in - in philosophy (epistemology), sociology, psychology, law, medicine, etc.

To define the notion of error in criminal proceedings in the theoretical aspect, the author primarily relied on the research of scientists who do not associate the error with a criminal activity.

10Methodology and Methods of Studying Investigative Errors. Collection of scientific papers. Moscow, 1986. 147p.; Issues of Consolidating Legality and Eliminating Investigative Errors in Criminal Proceedings. Collection of scientific papers. Moscow, 1988; Materials of national research and practice conference on "Investigative Errors, their Causes and Ways of Eliminating them." Alma-Ata, 1989; The Nature, Causes and Ways of Eliminating Errors at the Preliminary Investigation Stage. M., 1990; Identification and Elimination of Errors when Hearing a Criminal Case: resource book / Ch. Ed. A.D. Boykov. M., 1990.

11Ischenko E.P. Organizational-Tactical Errors at the Initial Stage of Criminal Investigation // Organizational-Tactical Issues of Crime Investigation: inter-university collection of articles. Krasnoyarsk, 1990, pp. 35-43.

12Dictionary of the Russian Language / ed. D.I. Ushakov. V. 2. M., 1938. P. 1088; Ozhegov S.I. Dictionary of the Russian language. M. 1987. P. 419.