nazarov-a-d_disser

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The theory of errors is a part of the theory of management13. Researchers interpret the error as the result of actions committed inaccurately or wrongly, contrary to the plan, but, most importantly, that the result obtained does not correspond to what was intended or planned. The error is viewed from the perspective of the activity theory, where it is a fact of practice. The error involves the comparison of the result and the process which led to an erroneous result, because such erroneous result was achieved despite the aspirations of the subject which had been aimed at a positive result.

Thus, a very important issue for defining the error in criminal proceedings in our research is that the subjects conducting criminal proceedings in their activities aim at a positive result, but for various reasons the result is ultimately an erroneous one.

The cause of errors occurrence is inherent in the subject’s activities, both physical and intellectual. For a person, any activity is a form of activity aimed at a result-oriented transformation of the world. The purpose of activities depends on the needs of the individual or the society. The main stages of activity, according to him, are: perception of the activity as a motive; assessment of the present situation; defining objectives; development of the solution as a chain of successive transformations of the present situation to the target situation; choice of means of the activity; implementation of the decision.

It is at the last stage, the implementation of the decision, that errors occur. This is primarily due to the inability to fully assess the present situation when choosing means of activity. The subject initially sets a wrong chain of successive actions, which leads to the occurrence of the result which is non-positive for him14.

The approach presented above is generally accepted in the academic community or, at least at the level of general ideas, does not raise any objections.

For example, one of the most prominent jurists in criminal procedure science, I.Y.

Foynitskiy, wrote: ‘Both criminal and civil proceedings seek to achieve the correct decision on the case ..., with the foundation being general logical approaches to discovering the truth’15. Another distinguished jurist studying criminal proceedings, Professor M.S. Strogovich, related reaching the correct decision on the case to the process of proof (investigation of the facts, circumstances of the criminal case), i.e. their study carried out applying the evidence16.

Criminal procedural proof is a special kind of social cognition with a predetermined algorithm. The subjects conducting criminal proceedings, the legal representative have to obtain

13Drobot P.N. Theory of Errors and Processing of Assessment Results: study guide. Tomsk: TUSUR publishing house, 2011.

14Strelkov J.K. Engineering and Professional Psychology. M.: "Academy", 2001. P. 46-57.

15Foynitsky I.Y. The Course of Criminal Proceedings. In 2 v. V. 1. St. Pb., 1996. P. 6.

16Strogovich M.S. The course of the Soviet Criminal Procedure. In 2 v. V. 1. M., 1968. P. 295-296.

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the necessary knowledge of the circumstances related to the review of the information on a socially dangerous act. This process follows the general laws of cognitive activity, including at the empirical level of knowledge, in certain forms: sensitive and rational. On the basis of a special psychological connection of the object to the subject of knowledge, it includes sensation, perception, conception, memory, theoretical and practical thinking17.

Obviously, such process, when it is subject to general ‘cognitive’ laws and conducted in accordance with the established legal procedure, may be called properly organized and leading to the correct result.

To put it differently, properly organized proving (and wider - criminal procedural activity) allows us to avoid an erroneous result and thereby achieve the correct result.

The correct result (in the above sense) of criminal proceedings is generally understood as the truth, the question of the establishment and nature of which is disputable in the science of law.

If we do not take into account the worldview attitudes of the authors and their shared legal values, the differences in the approach to the issue are as follows. A significant part of researchers believe that the truth in court proceedings may be fully perceived. Others deny the opportunity to completely establish the truth judicial activity18. It should be noted that interest in the question of the truth in the legal literature is not diminishing. This is evidenced, for example, by the discussion held previously in the journal ‘Criminologist Library’19 with regard to the presentation of the draft law on the introduction of the institute of establishing the objective truth in the criminal case20 prepared by the Investigative Committee of the Russian Federation for the attention and scrutiny of the academic community and practitioners.

Leaving aside the concrete arguments provided by the panelists (serious enough on both sides), it should be noted that, in one way or another, all scientists expressed (pronounced, took into account) their concerns regarding a large number of errors made by inquiring officers and investigators in practice.

Anyway, no doubt, this discussion implies that irregularities in the establishment of the truth in a criminal case (in whatever form it is considered by different scientists) can lead to errors in law enforcement.

17Belkin A.R. The Theory of Proof in Criminal Proceedings. M., 2007. P. 12.

18The problem of the truth in the criminal proceedings has been studied and is still being studied by many legal scholars. See, for example: Strogovich M.S. Material Truth and Forensic Evidence in the Soviet Criminal Proceedings. M.: Publishing House of the Academy of Science of the USSR, 1955. P.114-228; Strogovich M.S. Selecta: in 3 volumes, V 3. Theory of Forensic Evidence. M.: Nauka, 1991. P.16-27.; Volodina L.M. Issues of Criminal Proceedings: law, theory, practice. M., 2006. P.209-226.; etc.

19Сriminalist Library. 2012. № 4.

20On amendments to the Criminal Procedure Code of the Russian Federation in connection with the introduction of the establishment of objective truth in a criminal case: Federal Bill. See.: http://asozd2.duma.gov.ru/main.nsf/%28Spravka%29?OpenAgent&RN=440058-6&02

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In this regard it should be noted that, on the one hand, human activity due to various reasons is objectively impossible without making mistakes21. However, on the other hand, the phenomenon of errors lies in the fact that, despite their eternal presence, the human activity in its ideal form should seek to minimize errors, including in the area of criminal procedure law relations. Only such criminal procedure activity may be seen as correctly organized (normal), in full compliance with the fundamental principle of criminal proceedings – the principle of legality (Article 7 of the Criminal Procedure Code of the RF). That is why errors committed at pre-trial stages (investigative and judicial) and errors committed during the trial stage (miscarriages of justice) are a deviation from this principle22, mean disorganization of criminal procedure activity, entail (or may cause), from the legal point of view, wrong (erroneous) results and/or other incorrect (erroneous) implications. According to the figural expression provided by M.S. Strogovich, ‘... the right to an error is implied neither in legal nor in ethical respect. There were judicial errors in the past, there are some now, and we have to take into account the probability of errors in the future. But judges do not have the right to an error, as well as investigators and prosecutors do not have the right to an error during the investigation and resolution of criminal cases, there was no such right before, there is no such right now and will not be in the future. ... ‘The right to an error in criminal proceedings is an immoral, licentious idea, and it can only cause further violations of the law and morality’23.

The criminal procedure legislation does not apply the terms ‘investigation error, ‘miscarriage of justice’, or ‘judicial error’. The academic literature and the practitioners of criminal justice agencies when referring to the preliminary investigation errors and errors of the court use many terms: ‘preliminary investigation omissions’, ‘preliminary investigation gaps’, ‘preliminary

21It is not without any reason the phrases like "those do not make mistakes who do not do anything", "everyone has the right to be wrong", etc. have gained common daily usage.

22This is directly specified by the researchers of the principle of legality in criminal procedure. See: Issues of Judicial Ethics / edited. M.S. Strogovich. M., 1974. P. 88; Tokarev M.E. Modern Problems of Legality and the Prosecutor's Supervision at Pre-Trial Stages of Criminal Proceedings: dis. for Doctor. Jurid. Sciences. M., 1997; Baranov A.M. The Legitimacy in Pre-Trial Proceedings: dis. for Doc. Jurid. Sciences. Omsk, 2006; Baranov A.M. Ensuring Legitimacy in Pre-Trial Criminal Proceedings: Monograph. Omsk: Omsk Academy of Ministry of Internal Affairs of Russia, 2006; Gladyshev O.V. Justice and Legality in Criminal Proceedings of the Russian Federation: abstract of diss. for Doc. Jurid. Sciences. Krasnodar, 2009; etc.

23Strogovich M.S. The right of the accused to defense and the presumption of innocence. M., 1984. P.33.

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investigation disadvantages’24, ‘errors’25, ‘investigative errors’26, ‘judicial errors’27, ‘violation of the law’28, ‘ violation of the norms of the law’ (procedural and substantive), including ‘substantial violations...’, ‘criminal procedural violations’, ‘deviation from the norms of law’, ‘procedural errors’29, ‘misperception’30, etc. Without a doubt, these concepts are ambiguous. However, in general terms they may all be classified as two types of errors identified above: investigative errors, i.e. errors committed within pre-trial proceedings, and judicial ones, i.e. errors committed at the trial stages and at the stages of pre-trial proceedings when exercising judicial control.

During preliminary investigation there is a variety of investigative errors committed in relation to gaps in the preliminary investigation (one-sidedness, diminution, bias investigation of the case circumstances) and to the application of substantive and procedural legislation.

Other investigative errors are the ones made by the investigator not at pre-trial stages but during the investigation with regard to new or newly found circumstances (Articles 413 - 419 of the Code of Criminal Procedure of the RF). In the course of such investigation there can be carried

24It is the term "defects" that is used in art. 221 of the Code of Criminal Procedure of the Russian Federation to refer to the preliminary investigation errors revealed by the prosecutor.

25Yakushin V.A. The error and its impact on the guilt and responsibility under the Soviet penal law. dis. for cand. Jurid. Sciences. Kazan, 1985; Lisyutkin A.B. Methodological issues of studying the category of "error" in Law / A.B. Lisyutkin; Ed. N.I. Mazutova; Min. of Education of the Russian Federation, Saratov State Acad. of Law. Saratov: CGAP, 2001; Fatkullina M.B. Legal and factual errors in criminal law: Problems of qualification. dis. for cand. Jurid. Sciences. Ekaterinburg, 2001; Kolosovsky V.V. Errors in qualifying of criminal acts. dis. for cand. Jurid. Sciences. Chelyabinsk, 2003; Klimchuk V.P. Errors in the completion of the preliminary investigation and criminal procedural remedies for them. dis for cand. Jurid. Sciences. M., 2003; A.N. Pronkina Errors of legal representatives in criminal proceedings. dis. for cand. Jurid. Sciences. Voronezh, 2006; Bezrukov T.I. Factual error: classification and qualification questions. dis. for cand. Jurid. Sciences. Ekaterinburg, 2008.

26Morozova E.V. Criminalistic issues of investigation errors: dis for cand. Jurid. Sciences. Ekaterinburg, 2004; Tsvetkov S.I. Tactical errors of investigators, indicating and using them by the defence lawyer during the preliminary investigation and in court // Tactics, technique and strategy of professional defence. Ekaterinburg, 2002; Aubakirova A.A. Investigative and expert errors when forming inner conviction: dis for Doc. Jurid. Sciences. Chelyabinsk, 2010. Subsequently, this author published a paper on intellectual errors of the expert: Aubakirova A.A. Intellectual errors of experts when forming inner conviction. M. Jurlitinform, 2012.

27Idrisov O.R. Powers of the cassation instance in identifying and eliminating judicial errors in Russian criminal proceedings. Abstract of dis. for cand. Jurid. Sciences. Tomsk, 2012; Baturina N.A. Causes of judicial errors and procedural means to prevent them in civil proceedings. Abstract of dis. for cand. Jurid. Sciences. Saratov, 2010; Golubeva M.L. Judicial error: theoretical and applied analysis: Dis for Cand. Jurid. Sciences. N-Novgorod, 2009; Terekhova L.A. The right to correct a miscarriage of justice as a component of judicial defence: Dis for Doc. Jurid. Sciences. Ekaterinburg, 2008; Scherba A.A. Participation of a legal counsel in the prevention and correction of judicial errors in criminal proceedings: dis. for cand. Jurid. Sciences. M., 2007; Krasil'nikov B.V. Miscarriage of justice in a civil case as consequence of imperfection of substantive and procedural law: dis. for cand. Jurid. Sciences. M., 2002; Leontiev E.V. Miscarriage of justice in the civil process: concept and characteristics // Contemporary issues of civil law and procedure. Novosibirsk, 2002; Afanasyev V.V. Miscarriage of justice / V.V. Afanasyev, Ministry of Education of the Russian Federation, Yaroslav. State. Univ. named after P.G. Demidov, Yaroslavl: Yaroslav. State. Univ., 2000.

28Shirvanov A.A. Violation of the law in the criminal proceedings of the Russian Federation and its legal implications: dis. for Doc. Jurid. Sciences. Moscow, 2005.

29Popova O.A. Criminal procedure and organizational-tactical errors at the preliminary investigation stage and ways to prevent and eliminate them: dis for cand. Jurid. Sciences. Volgograd, 2006.

30See: Kuznetsov A.S. Misconception: logical-epistemological aspect: Abstract of dis. for Cand. Jurid. Sciences. Saratov, 2001; Sorokin B.F. Delusion as an issue of theory of cognition / B.F. Sorokin, Min. of General and Prof. Education of the Russian Federation, Orlov. State. Univ. Orel, 2004, etc.

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out interrogations, examinations, expert examinations, seizures and other necessary investigative actions.

Errors at the pretrial stages of criminal proceedings are committed by the officials of inquiry agencies (errors of the inquiry officer, the chief of the inquiry unit, the head of the inquiry agency); investigative authorities (errors of the investigator and the head of the investigative agency); the Prosecutor's Office (errors of the prosecutor, his deputies and assistants), the court (errors of the judge when exercising judicial review).

In our study, the errors of the inquiry officer (the chief of the inquiry unit, the head of the inquiry agency) and the investigator (the head of the investigative agency) are referred to as investigative errors.

We do not consider the errors of the prosecutor31 in this study.

Errors committed by the court (the judge) in criminal cases at the pre-trial (while exercising judicial review) and judicial stages of criminal proceedings (by courts of the first instance, appeal, cassation and supervisory instances) at the stage of sentence enforcement are referred to as judicial errors 32. Judicial errors are also associated with gaps of preliminary investigation and judicial investigation (one-sidedness, diminution, being biased when studying the circumstances of the subject of proof in a criminal case), application of the substantive (including related to punishment assignment) and procedural law. According to the justified opinion of S.L. Lon, it is necessary to distinguish between miscarriages of justice and abusive activities of the judge33. We shall address this important point further on. Also, in further parts of the study, we shall show that in most cases errors of the judge are predetermined by the original error committed by the inquiry officer, or the investigator, which was ‘missed’ (not seen) by the head of the inquiry unit, the head of the inquiry agency, the head of the investigative body, the prosecutor.

Agreeing on this with the scientists of the All-Soviet Union Research Institute of the General Prosecutor's Office of the RF, we are not classifying as investigative and judicial errors the following actions: deliberate actions of the investigator to charge an innocent person with a crime (Art. 299 of the Criminal Code of the RF), unlawful exemption from criminal liability (Art. 300 of the Criminal Code of the RF), unlawful arrest, detention or custody (Art. 301 of the Criminal Code of the RF), coercion to testify (Art. 302 of the Criminal Code of the RF), falsification of evidence (Art. 303 of the Criminal Code of the RF), as well as criminally punishable abuse of their official powers by an investigator or a judge (Art. 285 of the Criminal

31See, e.g.: Sazin D.S. State prosecutor errors in criminal proceedings: monograph. - M.: Jurlitinform, 2014. 224 p.

32Academics also use the term ‘miscarriage of justice’. See: Vedischev N.P. Miscarriage of justice and the eliminating it (from a legal counselor experience). Moscow, 2006.

33Lon S.L. An Error made by the Judge // Issues of legal regulation of relations arising in criminal proceedings: Col. of articles. Tomsk, 2003. P. 164.

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Code of the RF), exceeding their official powers (Art. 286 of the Criminal Code of the RF), accepting a bribe (Art. 290 of the Criminal Code of the RF), forgery (Art. 292 of the Criminal Code of the RF), penal negligence (Art. 293 of the Criminal Code of the RF), etc.

Such actions (or omissions) of the investigator and the judge are no less than a crime against justice, public authorities, public service interests, etc. We do not consider negligent malpractice actions (omissions) of subjects conducting criminal proceedings to be errors: disciplinary but not criminal negligence may be an error. We believe that there should be a ‘watershed’ between an error and a crime (intentional, negligent) as the nature of these phenomena is different: errors occur because of faults in the service, which are to be punished disciplinarily, whereas for crimes there are provisions of the Criminal Code of the RF relating to criminal penalties; a degree of public danger from a disciplinary offense of the person who has committed an error is different from the degree of public danger of the official who committed a crime associated with his criminal procedural activity. A.B. Solovyev was absolutely right to emphasize this, specifying that an essential feature of an investigative error is a non-criminal motivation behind actions of the investigator34.

Of course, the crimes committed by subjects conducting criminal proceedings also entail disruption of procedural activities, may lead (or may not lead) to wrong (illegal, unjust) results, but they still have a nature different from the above mentioned errors, and therefore are not included in the subject matter of our research.

Errors associated with criminal proceedings are also committed in the other areas which are in contact with the criminal procedure activities. Scientists are scrutinizing expert, forensic, psychological, operational-search and other errors35.

In her works, A.A. Kirillova offers a ‘unifying’ definition of the investigative error covering criminal, criminal-procedural and criminological aspects of errors. She believes that ‘the investigation error should be understood as the investigator deviating from criminal and criminal procedural legal norms and various, including forensic, scientific recommendations with regard to procedural and other actions, as well as omission of actions essential due to the circumstances of

34Solovyev A.B. Investigation errors in criminal proceedings / A.B. Solovyev . - M.: NORMA-M, 2001. 223 p.; Solovyev A.B. Proof at pretrial stages of criminal proceedings. M., 2002, p. 112; Solovyev A.B. Problematic issues of proof arising in the course of investigation of crimes when applying the Code of Criminal Procedure of the RF. M., 2008, p. 228 - 229.

35Belkin R.S. Forensics: contemporary issues. Controversial issues of Russian criminology. M.: NORMA, 2001. p.166; Shashin D.G. Applying the results of operational-search activity in the methodology of investigation and public prosecution in criminal cases involving illegal drug dealing: dis. for Cand. Jurid. Sciences: 12.00.09. Irkutsk, 2008, pp. 46-47; Komarova E.I. 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: Abstract. Dis. for Cand. Jurid. Sciences: 12.00.09. Voronezh, 2009. P.9; Kramarenko V.P. Situational approach to identifying and overcoming investigation errors: Abstract. Dis. for Cand. Jurid. Sciences: 12.00.09. Krasnodar, 2012. P.9; Zorin G.A. Theoretical Foundations of Criminalistics. Minsk, 2000. P.286-288; Zorin R.G. Study of patterns of formation and elimination of negative circumstances and significant violations in criminal proceedings / Criminologist Library, M.: Jurlitinform, 2013, №3. P. 149-154.

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the case, different actions, not applying tactics and tactical operations, which led to the decisions contrary to the law, not achieving the optimum result, and the loss of potential opportunities during the preliminary investigation and/or trial’36.

Certainly, there is clear evidence of the influence of expert, forensic, psychological, operational search and other errors on investigative and judicial errors, the correlation between them, but the specific features of the errors mentioned above are not the subject of our research.

The research of investigative and judicial errors shows completely different approaches and views on this phenomenon. To have a complete picture of these, let us look at very different positions to eventually present our understanding of this phenomenon.

N.L. Granat, in our opinion, provided a fairly narrow definition of the error in criminal judicial proceedings: a fault, a wrong action, an incorrect step, a blunder, or an action not resulting in the achievement of the goal set. However, she believed that the error is such a distortion in the cognition, or a deviation from the goals, which is not intentional. That is an error for her is always a result of fair deception37. This is not the case, since the error may be due to an unscrupulous attitude to duties expressed in deliberate, but not criminal violation of the law.

M.E. Puchkovskaya, taking the same direction as the scientists in the All-Soviet Union

Research Institute of the Prosecutor General’s Office of the Russian Federation, defined the investigative error as ‘a non-criminal unlawful act or omission of the person conducting the preliminary investigation, contrary to the rules of criminal procedure and the criminal law, which has led or could lead to making an illegal or unreasonable decision, or to the failure to make an appropriate decision’38. This definition doesn’t seem to be complete, or covering the entire spectrum of investigative errors, e.g. preliminary investigation gaps associated with diminution, one-sidedness and biased approach to establishing all the elements of the subject of proof in a criminal case.

We generally share the position of the well-known scientist-processualist A.D. Boykov, who understood the investigative error as ‘any illegal or unreasonable decision caused by a wrongful act or omission’39. In the list of errors, he included gross procedural violations committed

36Kirillova A.A. Fundamentals of forensic techniques of judicial proceedings for criminal cases of murder (part 1 of Article 105 of the Criminal Code of the RF): Monograph. Ulan-Ude: VSGUTU Publ. House, 2014. P.60; Kirillova A.A. Investigating errors in the technique of judicial proceedings // Criminologist Library, M.: Jurlitinform 2013, №3. P. 156.

37Granat N.L. Investigative errors: concept, types and causes / Scientific information on crime control. M., 1983. №76. P. 57. V.I. Vlasov holds a similar opinion. See: Vlasov V.I. Investigation of crimes. Quality issues. Saratov, 1988. P. 63.

38Puchkovskaya M.E. Court rectification of investigative errors made at the stages of preliminary investigation and the first instance court proceedings: Abstract. Dis. for Cand. Jurid. Sciences. Tomsk, 2004. P. 11.

39Boykov A.D. Issues of consolidating legality and increasing the efficiency of criminal proceedings in the light of decisions of XXVII Congress of the CPSU // Issues of consolidating legality and eliminating errors in criminal proceedings. M., 1988, pp. 14-15.

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consciously, and incorrect application of the criminal law, the illegality and invalidity of which was pronounced by an appropriate officer or agency. Including in the definition such features of errors (each independently) as ‘illegality’ and ‘invalidity’ of a decision has significance as it allows us to distinguish between errors on the basis of the nature of errors and to precisely establish the way to correct them. However, we believe that wrongful illegal and unjustified actions or omissions entailing unlawful and unjustified decisions should also be considered as errors. Likewise, improper actions and decisions caused by poor awareness of an official should be considered as an error as well.

Previously this was pointed out by the team of scientists in the All-Soviet Union Research Institute of the USSR Prosecutor General's Office40, who gave the following definition of the investigative error: ‘illegal and unjustified actions by the investigator in charging with criminal liability and detention of citizens, in suspension, termination, transferring criminal cases to the prosecutor with the indictment for committal to trial, which were falsely seen by an investigator as lawful and were allegedly aimed at ensuring the achievement of criminal proceedings tasks’41.

As it was later noted by the head of this group A.B. Boykov, the investigative error has two significant features: the investigator’s erroneous assessment of his actions as being legitimate and addressing criminal proceedings tasks; the relevance of the damage caused by the error42.

The well-known researcher of problems of investigative and judicial errors, S.A. Shaifer, holds a position similar to ours; he defines the investigative error as ‘an intentional or unintentional deviation, observed by a procedural act of an authorized subject, of the investigator, due to falsely understood investigative purposes, from the requirements of the criminal procedural law and scientific recommendations during the collection, verification, and evaluation of evidence, and adopting interim and final procedural acts, as well as not carrying out procedural actions necessary due to the circumstances of the case, which led to a decision contrary to the law and impeding the attainment of the objectives of judicial proceedings’43.

40 The writing team included: V.N. Isayenko, L.P. Ismakaev, V.A. Lazareva, A.A. Levy, V.N. Makhov, E.S. Radutnaya, A.B. Solovyev (the team leader), M.E. Tokareva, S.A. Shaifer. The second team of research scientists of the All-Soviet Union Research Institute of the General Prosecutor’s Office of the USSR was led by A.D. Boykov. The team consisted of scientists and practitioners: I.F. Demidov, V.F. Kuchumova, T.A. Mikhailova, V.N. Nazhimov, Y.A. Vorobyev, O.M. Yastrebova. This team addressed the issues of identifying and eliminating investigative errors at the stage of hearing criminal cases.

41The nature, causes and ways of eliminating errors at the preliminary investigation stage: study guide. P. 7-8.

42Solovyev A.B. Proof at pretrial stages of criminal proceedings. M., 2002, p. 112; Solovyev A.B. Problematic issues of proof arising in the course of investigation of crimes when applying the Code of Criminal Procedure of the RF. M., 2008, pp. 228 - 229. The author of this research had the same opinion. In the late nineties of the last century, he was a graduate student at the All-Soviet Union Research Institute of the General Prosecutor's Office of the Russian Federation and, under the supervision of M.E. Tokareva in the sector of A.B. Solovyev, performed a candidate's research on the topic ‘Problems of investigative errors at pre-trial stages of criminal proceedings (based on the Central Siberian region materials)’. See: Nazarov A.D. Problems of investigative errors at pre-trial stages of criminal proceedings (based on the Central Siberian region materials): Dis. for Cand. Jurid. Sciences. M., 1999. 297 p.

43Shaifer S.A. Evidence and proof in criminal cases: Issues of theory and legal regulation. M., 2009. P. 204.

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However, both of the above definitions of the investigative error need, in our opinion, certain refinements to clearly understand all the essential spectrum of investigative errors.

But before turning to these clarifications, let us consider the notions of ‘procedural error’, ‘law enforcement error’, ‘violation of the criminal procedure’, which are applied by a number of authors instead of the term ‘investigative errors’ in similar cases.

The notion ‘procedural error’ is used in broad and narrow approaches.

Specifically, referring to the procedural error, Y.V. Derishev means ‘any preliminary investigation omissions: inaccuracies, gaps and faults, misconceptions or wrong steps, misperceptions caused by discrepancies in the interpretation of the law by various law enforcement officers, their lack of educational and professional level, low efficiency of the prosecutor's supervision and the procedural administration of the preliminary investigation’44. As it can be seen from this definition, the notion of the procedural error is considered by this author as being too wide. For him, the procedural error is not only associated with specific violations of the procedural law (they are only implied), but also with other deviations from a properly organized activity.

A.M. Baranov, on the contrary, gives a too narrow definition of procedural errors. In his view, the procedural error is to be understood as an ‘unintentional violation of the procedural law manifested in non-performance or improper performance of this law requirements by an investigator, or other procedural authority, and recognized as such by the competent subject in a relevant legal act’45. In other words, the notion used by him does not take into account intentional violations of the law (if they are not criminal) which, according to the official who committed them, comply with the law and/or the purpose of criminal proceedings. Moreover, this notion does not consider violations of the law identified and corrected by the official who committed them but not officially recognized as such in a special legal act.

Beyond all doubt, in this context, the notion of the investigative error we offer is more precise and specific than the notion of the procedural error.

The notion of the ‘law enforcement error’ is used in the approach close to our understanding of the investigative error.

More specifically, according to N.N. Voplenko, the law enforcement error is the result of official work of special law enforcement entities which is contrary to the norms of the substantive or procedural law, not reaching the true aims of legal regulation, and qualified by the competent authority as erroneous. The definition of N.N. Voplenko covers such features of the law enforcement error as the violation of the legislation norms of the substantive and procedural law;

44Derishev Y.V. Basic procedural errors entailing unjustified criminal prosecution // Legislation and Practice. 1998.

№ 1. P. 19.

45Baranov A.M. Procedural errors committed at the stage of completing preliminary investigation and ways to rectify them. Omsk, 1996. P. 11.

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inconsistency with regulatory purposes; the decision, action or omission made not by any subjects, but only by special subjects of law enforcement vested with authority; observance of such actions as wrong by a competent person or a competent authority46.

Basically, such definition of the law enforcement error is generally consistent with our notion of the investigative and judicial error, though not with regard to all features (except for substantive law violations and violations identified and corrected by the subject who committed them).

The notion ‘criminal procedural violation’ is close to our understanding of the investigative

error.

For example, A.T. Dugin, believed that ‘a criminal proceedings activity is legitimate when performed by the investigation body in a timely manner, if there are sufficient grounds, and in the manner prescribed by rules of the criminal and criminal procedural law, regardless of the results obtained’. The notion of ‘criminal procedural violations’ was given by A.T. Dugin the following meaning: ‘... it is a socially dangerous or harmful malicious activity, infringing on the criminal procedure order, executed in defiance of the criminal and criminal procedure norms without sufficient grounds or untimely, or non-compliant with the established procedure, as well as a wrongful omission when there were sufficient grounds for the performance of the necessary remedial activity’47.

It seems that A.T. Dugin, without using the notion of investigative errors, nonetheless, had them in mind when in the range of criminal procedural violations he included the violations of the CPC of the RF, the Criminal Code of the RF, the preliminary investigation gaps committed by the investigator. At the same time, according to A.T. Dugin, the notion of criminal procedure offenses included criminal activities of the investigator, which, as noted above, may not be regarded as investigative errors.

Here, we should mention another author – S.G. Olkov, who did not embrace the term ‘error’ at all and applied the term ‘criminal procedural violation’. In his view, the error is not a violation of the law, not an activity or omission, but the relation of the subject to the object defined in legal

46Voplenko N.N. Errors in law enforcement: the concept and types // The Soviet state and law. 1981. №4ю P.41. For enforcement errors see also: Russkih V.V. Enforcement mistakes of law enforcement officers: dis. for cand. Jurid. Sciences. Roston-on-Don, 1998; Mursalimov K.R. Law enforcement errors: theoretical issues: dis. for cand. Jurid. Sciences. N-Novgorod, 2000. For errors in interpretation of law, connected with law enforcement errors, see: Pishin S.G. Errors in interpretation of law. Issues of theory and practice: dis. for cand. Jurid. Sciences. N-Novgorod 2000.

47Dugin A.T. Issues of criminal procedural violation control in the investigation of crimes by means of public prosecutor supervision: dis. for cand. Jurid. Sciences. M., 1995. p. 59. See also: Shirvanov A.A. Violations of the law in criminal proceedings of the Russian Federation and their legal implications: Abstract of Dis. for Doc. Jurid. Sciences. M., 2005; Pikelny D.S. Criminal procedure offenses related to the application of coercive procedural measures in the Russian criminal proceedings: Abstract Dis. for Cand. Jurid. Sciences. Tyumen, 2006; Yakunkov M.A. Criminal procedure offenses related to investigation activity in the Russian criminal proceedings. Abstract Dis. for Cand. Jurid. Sciences. Tyumen 2007.