nazarov-a-d_disser

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eliminating investigative and judicial errors, which is predicated by a complex approach to developing the concept.

To put it another way, the conceptual approach to the phenomenon of errors and the mechanism to eliminate them in criminal proceedings allows us:

to single out (among others) a special purpose of criminal proceedings –identification, correction, prevention of investigative and judicial errors (in a shortened version – the elimination of errors);

to show the role and the importance of prosecution and defense strategies when choosing a certain organizational and legal construction of the mechanism to eliminate errors;

to outline a wide range of scientific and practical propositions with regard to the problems of errors and eliminating them.

Needless to say, the above provided development of conceptual framework for eliminating errors68 only allows us to present the, necessary for the author, framework that is relevant to the study of theoretical and applied aspects of criminal procedure mechanisms to eliminate errors and causes generating them.

§3. Classification of errors in criminal proceedings

Scientists studying the phenomenon of errors in criminal proceedings offer a variety of options for their classification. These classifications allow you to see the diversity of the phenomenon, their logical interconnection and interdependence.

Specifically, V.I. Vlasov in his research provides a variety of classifications for errors and divides investigation errors into logical ones (errors in the mental activity of subjects investigating cases) and factual ones (non-compliance with the requirements of the Criminal Procedure Code by the same subjects). He also divides investigative errors into substantive-legal and procedurallegal; investigative errors occurring when initiating a criminal case, during the investigation, when charging an individual with a crime, when uniting and separating criminal cases, when suspending the investigation, when completing the investigation, etc.69.

V.V. Zolotyh, considering the issues of admissibility of evidence, proposes the classification of violations which, as we see it, are similar to errors in criminal proceedings:

68Such developments have been undertaken by other authors. See: Golik Y.V. The Theory of Errors: Criminal-Legal and Forensic Value // Actual Problems of Crime Control. Sverdlovsk: Sverdlovsk Law Institute Publishing House, 1989. P. 29-38; Grigoryev V.N. On the Theory of Investigating Crimes in Extreme Conditions // Issues of Law:

Russian Scientific Theory Journal. 2013. №2. P. 344-361; etc.

69Vlasov V.I. Investigation of crimes. Quality issues. Saratov, 1988. P. 92; Vlasov V.I. Investigative errors in juvenile cases// Current issues of juvenile crimes investigation. M., 1982. P. 112-113.

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violations of requirements providing legal and factual basis for proceedings; violations of the Criminal Procedure Code requirements establishing the list and procedural status of persons participating in investigative, judicial and other procedural activities; violations of the criminal procedural law governing the methods of collecting, securing and checking any factual evidence and its sources; violations of the requirements of the law governing the procedure for performing and documenting the course and results of investigative, judicial and other procedural steps; violations of the requirements of the law governing the procedure for initiating a criminal case, for uniting cases, and their separation, for suspension and resumption of the preliminary investigation70.

It is obvious that the above mentioned and other classifications of investigative and judicial errors proposed in literature 71 are related to how authors define these errors. Our task here is not a detailed consideration of these classifications. In the context of a conceptual approach to the study of investigative and judicial errors, for us it was important to develop own versions of the classification of errors.

It is worth reminding that the error (investigative, judicial) is defined here as the action (or inaction) of the subject conducting criminal proceedings expressed, usually, in a procedurally significant violation of the principle of legality in criminal proceedings, not containing any evidence of criminal acts, resulting in the failure to reach (or a possibility not to have reached) the correct procedural outcome.

Based on our definition of errors, it is possible to offer the following classifications.

First of all, we present the main, in our view, the classification of errors, which is associated with the content essence of the whole variety of investigative and judicial errors, and reflects its structure.

I. The basic classification - according to the essential characteristic of errors72:

1. errors manifested in incompleteness, one-sidedness and biased investigation of the criminal case circumstances (preliminary investigation gaps; gaps in judicial investigation);

70Zolotyh V.V. Examination of evidence admissibility in criminal proceedings. M., 1999, p. 264-295.

71See: Zakharov V.O. On the classification of investigative errors // Business in the law. 2014. №5. P.142-144; Investigative errors: study and practical guide for students enrolled in ‘Law’, ‘Law enforcement’ programmes / [compiler A.M. Bagmet et al.]; ed. A.I. Bastrykina. M.: UNITA-DANA, 2016 P.14-155; etc.

72It is necessary to mention that the allocation in the error structure of these types is to some extent conditional and is proposed herein in the furtherance of the scientific research of investigating errors in the 80s carried out by the scientists of the All-Soviet Union Research Institute of the Prosecutor General of the USSR. Of course, the preliminary investigation and judicial investigation shortages are basically violations of the criminal procedure law. Violation of the constitutional provisions and international standards of criminal justice are also violations of the criminal procedural legislation. The criminal law is sometimes incorrectly applied when there are shortcomings of investigation. All types of errors specified herein are structurally interconnected and interdependent. But for the purposes of scientific research it is important to consider all of these types of errors within such structure.

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2.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);

3.errors expressed in significant violations of the criminal procedural law;

4.errors manifested in wrong application of the criminal law.

There is no doubt that the "price" for certain errors, due to the importance for individuals, society, and the state, of the negative consequences which they cause and depending on what values protected by the Constitution of the Russian Federation they affect varies. Therefore, we have isolated and studied a new kind of investigative and judicial errors –fundamental errors; this type of errors deserves a separate classification.

II. According to the severity of the consequences errors carry for the person, society, and

the state:

1.fundamental errors.

2.non-fundamental errors.

When considering the structure of investigative and judicial errors, we will provide the definition of fundamental errors and their types.

III. According to the grounds for a reversal or revision of the judgment under appeal

procedure:

1)errors related to the discrepancies between the court's conclusions set out in the judgment and factual circumstances of the criminal case established by the court of the first instance;

2)errors related to significant violations of the criminal procedural law;

3)errors due to incorrect application of the criminal law;

4)errors related to the injustice of the sentence (its excessive leniency or excessive

severity);

5)errors related to identifying the circumstances referred to in part one paragraph 1 of article 237 of the Code of Criminal Procedure of the RF (circumstances for referring the criminal case to the prosecutor);

6)other errors.

IV. According to the grounds for a reversal or revision of the judgment under cassation

procedure:

1)errors related to significant violations of the criminal law and (or) the law of criminal procedure and affecting the outcome of the case;

2)errors related to the identification of evidence of non-compliance with conditions by a person or non-performance of obligations provided for in the plea deal;

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3)errors occurring due to the circumstances specified in part five of Article 247 of the Criminal Procedure Code of the RF, when in exceptional cases the trial for serious and very serious criminal crimes can be held in the absence of the defendant, who is located outside the territory of the Russian Federation and (or) refuses to appear in court, if the person has not been prosecuted in the territory of a foreign state for such criminal case;

4)errors related to identifying the circumstances referred to in part one paragraph 1 of article 237 of the Code of Criminal Procedure of the RF (circumstances of the return of the criminal case to the prosecutor).

V. According to the grounds for a reversal or revision of the judgment, ruling or decision

of the court in the exercise of supervisory powers:

1)errors related to significant violations of the criminal law and (or) the law of criminal procedure and affecting the outcome of the case;

2)errors related to the identification of evidence of non-compliance with conditions by a person or non-performance of obligations provided for in the plea deal.

VI. According to the nature of the procedural action (or omission) made by the subject

conducting criminal proceedings:

1.erroneous initiation (refusal to initiate) of a criminal case;

2.erroneous detention (not detention) of the person suspected of committing a crime; applying (not applying) preventive restrictive measures against the suspect (the accused), applying (not applying) detention, in the first place; filing (not filing) a motion for extending the detention of the accused with a court;

3.erroneous applying (not applying) an indictment;

4.erroneous implementation (not implementation) of some investigative or other procedural activity;

5.erroneous suspension (non-suspension) of the prior investigation;

6.erroneous termination (non-termination) of the criminal case and/or the prosecution (complete or with regard to the indictment);

7.Other errors.

The same scheme can be applied to classify errors of the judge (erroneous ruling – not rendering a court ruling on the conduct of proceedings, restricting constitutional human and civil rights and freedoms; erroneous conviction or acquittal, etc.).

VII. According to the subject of the criminal procedure who has identified errors:

1.errors identified by the prosecutor in the implementation of prosecutorial supervision;

2.errors identified by the head of the investigative agency, the head of the investigation unit, the head of the inquiry body while exercising their departmental control;

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3.errors identified by the judge in the course of judicial review at the pre-trial stages;

4.errors identified by the court (the judge) in judicial proceedings when listing for trial, during the trial of the criminal case on the merits, in the appeal, cassation, supervising instances, when enforcing the sentence;

5.errors identified by the head of the investigative, the crime scene team, by the investigator himself, and eliminated by these persons;

6.errors identified by the other participants in the criminal procedure (legal counsels, representatives, etc.) and appropriately responded to by the subjects conducting criminal proceedings.

VIII. According to the motivation behind an action or omission of the subject conducting

criminal proceedings:

1.errors committed by the subject unconsciously, unintentionally due to the lack of knowledge, experience, due to the situation prevailing at the time of the investigation and judicial examination of a criminal case (i.e. the subject, making a bona fide misjudgment, believes that his acts or omissions are absolutely legitimate and are not going to lead to errors, but later due to various reasons and circumstances revealed in the case such error "manifest themselves");

2.errors committed by the subject intentionally due to neglecting some of the requirements of the law regarded as unimportant for the case, irrelevant and not impeding the achievement of criminal proceedings purposes (it is worth emphasizing once again that these unintentional acts or omissions by the subject should not contain any evidence of a crime: otherwise this violation of legitimacy cannot be regarded as an error).

With such motivation behind their actions or omissions, the subject does not want to make "excessive" efforts for the resolution of a criminal case, hoping that some simplification and violation of the relevant regulatory and other requirements will not entail any negative consequences, and if they appear, they may be corrected in the future, overcome by the investigator, the prosecutor or the court (the judge).

IX. According to the progress of the criminal case:

1.errors at the stage of initiating a criminal case;

2.errors at the stage of preliminary investigation of a criminal case:

a) errors in the initial inquiry in a criminal case (moreover, it is possible to talk about errors in usual inquiries and errors in summary inquiries; errors made by various agencies and officials who the legislator empowered to conduct inquiries);

b) the preliminary investigation errors (here it is possible to talk about mistakes made by investigators who are members of investigative units of the investigative force of the Investigative

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Committee of the Russian Federation, Internal Affairs agencies, the Federal Security Service of the Russian Federation);

3.errors committed when listing a criminal case for a trial, including during the ones committed during preliminary hearings of the case;

4.errors while trying the case on merits in the court of the first instance;

5.errors in criminal proceedings under appeal procedure (here it is possible to discuss

mistakes in appeals under the ‘old’ and ‘new’ procedures, before the new appeal procedure for criminal cases entering into force on 1 January, 2013);

6. errors in criminal proceedings under cassation procedure (similarly, here it is possible to discuss mistakes in cassations under the ‘old’ and ‘new’ procedures);

7.errors in the criminal case examination under the supervisory procedure (here it is also possible to talk about mistakes when applying the "old" and "new" supervisory procedures);

8.errors in proceedings of new or newly discovered facts in a criminal case;

9.errors when enforcing the sentence in a criminal case.

X. According to the stage of preliminary investigation:

1.errors of the initial stage of preliminary investigation, including the performance of immediate (initial) investigation activities;

2.errors when detaining a person suspected of committing a crime and when interrogating the person as the suspect;

3.errors when selecting measure of procedural compulsion (first of all, preventive restrictive measures);

4.errors when presenting an indictment;

5.errors when conducting final investigative and other procedural activities;

6.errors when completing the preliminary investigation (holding familiarization with the criminal case file, etc.);

7.errors when returning in the criminal case for further investigation by the head of the investigative agency.

The basis for subsequent classifications of errors is the approach of “Tomsk academic school of thought” to classifying proceedings identifying the main, additional, and special procedures in criminal proceedings73. In accordance with the classification of procedures it is possible to develop the classification of errors.

XI. According to the type of criminal proceedings:

73 Jakimovich Y.K. The concept, function, differentiation of criminal proceedings. The principles of criminal proceedings. Tomsk: Publishing House of Tom. Un., 2015. P.54-70; Trubnikova T.V. Theoretical basis of summary court proceedings. Tomsk: Publishing House of Tom. Un., 1999. P. 114-126.

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1.errors made in main proceedings;

2.errors made in additional proceedings (proceedings on early release on parole, transfer to a penal colony-settlement, etc.);

3.errors made in specific proceedings (proceedings for compulsory measure of medical character; forensic control proceedings; rehabilitation proceedings, etc.).

Moreover, it is possible to provide a classification according to different criminal proceedings:

1.errors made in ordinary proceedings;

2.errors made in summary proceedings (proceedings where investigation is limited to inquiry; proceedings provided for in Ch.40-1 of the Code of Criminal Procedure of the RF, i.e. a special procedure for making a court decision when concluding a pre-trial plea deal, proceedings with a shortened form of inquiry - ch.32-1 of the Code of Criminal Procedure of the RF; proceedings for assigning measures of criminal law at the exemption from criminal liability - ch.51-1; proceedings in cases of private prosecution under the jurisdiction of a magistrate, etc.);

3.errors made in proceedings with more complex procedural forms (proceedings for cases of minors, proceedings for a jury trial, proceedings for the cases of persons suffering from mental or physical disabilities, the proceedings in respect of certain categories of persons - ch.52 of the Code of Criminal Procedure of the RF; etc.).

XII. According to the court considering a criminal case:

1.errors of the magistrate;

2.errors of the federal judge hearing a criminal case alone;

3.errors of the panel of three or more professional judges sitting a criminal case;

4.errors of the jury court.

or:

1.errors of the magistrate;

2.errors of a district court judge and the court equivalent to it;

3.errors of the regional court judge and the court equivalent to it;

4.errors of the Supreme Court of the Russian Federation judge.

XIII. According to the category of criminal cases:

1.errors in criminal cases of the private prosecution;

2.errors in criminal cases of private-public prosecution;

3.errors in criminal cases of public prosecution.

XIV. According to the type of crime:

1.errors in criminal cases on crimes against individuals;

2.errors in criminal cases on crimes against freedom, honor and dignity of a person;

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3. errors in criminal cases on crimes against sexual integrity and sexual freedom of a

person;

4.errors in criminal cases on crimes against the constitutional human and civil rights and freedoms of a person;

5.errors in criminal cases on crimes against the family and minors;

6.errors in criminal cases on crimes against property;

7.etc.74.

Classifications of errors facilitate studying them from different perspectives in order to selectively apply criminal procedural mechanisms for their elimination to each separate kind of errors.

Thus, the peculiarities of all this variety of classifications, provided above, are that, when considering these error classifications conceptually, they fit into the frame of the main classification which reflects the structure of these errors. The detailed scientific analysis of all this diversity of mistakes is not the subject of this research. This research studies primarily errors classified according to their essential characteristics and reflecting the structure of investigative and judicial errors, as well as fundamental errors.

§4. The structure of the error in criminal proceedings

The concept of eliminating errors gives an important place to issues related to the structure thereof.

Considering the structure of errors in criminal proceedings, we identify their main types in the ratio which is predicated by the repetition frequency of these errors in criminal cases.

In our research, the structure of errors is considered through the prism of the main classification of errors according to their essential characteristics.

The research of investigative errors in the 80s of the last century, as well as our research of such errors in the 90s of the last century, in 2000s - 2015s, despite the changes in the socio-political regime in Russia and amendments to the legislation, has given the opportunity to show the structure of investigative errors in dynamics.

74 The further classification follows the structure of the special part of the Criminal Code of the Russian Federation, as well as the classical presentation of the special part sections in textbooks. See, e.g.: Criminal Law. Special part: textbook / ed. I.V. Shishko. - Moscow: Prospect, 2016. P.742-747. Certainly, it is possible to present a shortened version of the classification labeling crime types with definitions that are used in research and in practice. For example: errors in terrorism, extremism, corruption criminal cases; violent crimes cases; mercenary crimes; commercial, fiscal, economic crimes; computer crime; malfeasance; etc.

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The results of the research carried out in the late 80s of the last century by the team of the scientists of the All-Soviet Union Research Institute of the General Prosecutor's Office of the USSR, showed that the proportion of one-sidedness and incompleteness of the preliminary investigation in the structure of investigative errors was 60.4% of the total number of errors, the proportion of significant violations of criminal procedural law was 25.5%, the proportion of incorrect application of the criminal law was 14.1%75.

Our research in the Mid-Siberian region in the 90s of the last century showed the structure of investigative errors as follows:

-one-sidedness, incomplete investigation of the case circumstances – 59.7% of the total number of errors;

-failure to observe the constitutional human and civil rights and freedoms of persons accounted for 7.4%;

-substantive violations of the criminal procedural law accounted for 17.3%;

-incorrect application of the criminal law accounted for 15.6%.

It is noteworthy that non-observance of constitutional human and civil rights and freedoms of a person in view of their special importance are separated out as an independent kind of investigative errors. It is closely related to substantial violations of the criminal procedural law. If you add up the percentages of these two types of investigative errors, they will total to 24.7%, which would be approximately equal to the index (25.5%) for substantive violations of the criminal procedural law found at their time by the team of the scientists of the All-Soviet Union Research Institute of the General Prosecutor's Office of the USSR76.

The study of the judicial, prosecutorial, investigatory practices of 2002-201677 shows that investigative errors undergo certain changes structurally (qualitatively and quantitatively).

75The nature, causes and ways of eliminating errors at the preliminary investigation stage: study guide. P. 8.

76The author has studied features of the errors identified in the basic classification in detail. See: Nazarov A.D. On rectifying preliminary investigation gaps during the court hearing // Issues of criminal procedure and criminology. Coll. of acad. papers. M., 1988. p. 28-35; Nazarov A.D. The impact of the investigative risk on investigative errors in the criminal case // Modern Russian law: federal and regional dimension. Barnaul, 1997; Nazarov A.D. Rectifying investigative errors in court in light of criminal procedural law reform // Issues of ensuring legitimacy and crime control. M-Kemerovo, 1997, p. 165-168; Nazarov A.D. Rectifying investigative errors in court // Current issues of law enforcement in light of the new Criminal Code of the Russian Federation adoption. Krasnoyarsk, 1997, p. 96-99; Nazarov A.D. Correction of preliminary investigation errors by the public prosecutor in court // Current issues of jurisprudence in the contemporary period. Tomsk, 1998, p. 67-69; Nazarov A.D. Investigative errors at pre-trial stages of criminal proceedings: study guide. Krasnoyarsk, 2000; Nazarov A.D. The effect of investigative errors on court errors. St.Pb., 2003; Nazarov A.D. The concept and basic classification of investigative errors // Black holes in Russian legislation. 2010. № 4; Nazarov A.D. The concept of investigative errors // Journal of Siberian Federal University. Ser. Humanities. 2011. №2; Nazarov A.D. The basic classification of errors in criminal proceedings // Legal issues of strengthening Russian statehood: Col. of Art. P. 47. Tomsk, 2010. P.163-164; Nazarov A.D. On the issue of strategies to identify, eliminate and prevent errors in criminal proceedings // Journal ‘Russian law on the Internet’. 2011; Nazarov A.D. Criminal procedure policy and the strategy to identify, eliminate and prevent errors in criminal proceedings // Legal issues of strengthening Russian statehood: Col. of Art. P. 55. Tomsk, 2012. P. 46-48. etc.

77It is worth pointing out that, in the empirical research, we applied the same methods and techniques that were once used by the scientists of the Federal Crime Causes and Crime Prevention All-Soviet Union Research Institute of the

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1.Errors expressed in incompleteness, one-sidedness and biased investigation of the criminal case circumstances: 57.0% (-2.7% compared with the 90s and -3.4% compared to the 80s).

2.Errors expressed in non-compliance within criminal proceedings of constitutional human and civil rights and freedoms, as well as international standards of criminal proceedings (the fair trial): 8.0% (+ 0.6% compared with the 90s, any comparison with the 80s is inapplicable as the researchers of the 80s did not isolate a separate group of such errors).

3.Errors expressed in substantive violations of the criminal procedural law: 16.0% (-1.3% compared with the 90s, any comparison with the 80s is inapplicable as apart from substantial violations of the criminal procedure law the scientists did not isolate the errors expressed in noncompliance within criminal proceedings of constitutional human and civil rights and freedoms, as well as international criminal proceeding standards (the fair trial), in a separate group.

4.Errors expressed in incorrect application of the criminal law: 19.0% (+ 3.4% compared to the 90s; + 4.9% compared to the 80s).

Thus, it may be stated that there is a slight trend of reduction of the number of errors related to gaps in the preliminary investigation. We believe that this is not only due to the improvement of the quality of the preliminary investigation of criminal cases: in our view, this reduction has become possible due to the widespread application of a special procedure for judicial proceedings of criminal cases, among other things in connection with the introduction in 2009 of the institute of pre-trial plead deal between the prosecutor and the accused.

However, the trend of a certain increase in the number of material errors expressed in incorrect application of the criminal law may, in our view, indicate the increasingly complex structures in the Criminal Code of the Russian Federation, which is rather complex for application by inquirers and investigators whose age is increasingly younger.

It is worth noting that in the 80s and 90s of the last century neither the scientists of the AllSoviet Union Research Institute of the General Prosecutor's Office of the USSR nor the author of this research conducted a special study of the structure of judicial errors. However, the structure of judicial errors is clearly presented in the official statistics on the administration of justice in criminal cases78. Judicial errors are ranked as follows:

- incorrect application of the criminal law (70.92%), plus the injustice of the sentence (3.22%);

- violations of the criminal procedural law (20.86%);

Prosecutor General of the USSR. See: Methodology and methods of studying investigative errors. Collection of academic papers. - M., 1986.

78 See: Appendix №6