nazarov-a-d_disser

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-discrepancies between court conclusions set out in the judgment and factual circumstances of the case established by the court of first, appeal, cassation instances (5.0%)

Thus, whereas in the structure of investigative errors the bulk of errors are shortcomings of preliminary investigation, in the structure of judicial errors the greatest proportion of errors is incorrect application of the substantive (criminal) law; shortages or gaps of judicial investigation account for a minimum number of errors. The number of violations of the criminal procedural law (violation of the Russian Constitution and international standards for the fair trial among them) in the structure of investigative and judicial errors is approximately the same.

The analyses of the structure of miscarriages of justice makes it possible to conclude that the prevalence of improper application of the substantive (criminal) law errors in the total mass may be explained by the following factors:

-the modern criminal law is quite complex for law enforcers;

-the court of the first instance does not always detect an ‘overstated’ criminal-legal

qualification of acts the defendant is charged with (‘excessive qualification’), whereas courts of appeal, cassation, supervisory instances are more confident than the court of the first instance, and when carrying out a judicial revision (inspection), apply a more ‘lenient’ qualification to the criminal case;

-when conducting a judicial revision (inspection) courts of appeal, cassation, supervisory instances are more confident than the first instance court and opt for commutation of sentence, termination of criminal proceedings for different reasons (manifestation of humanity and liberalism; taking into account the active defense of the convict, his defense counsel; the presence of a significant number of doubts, violations in the criminal case: in compensation for such defects, during revision of a criminal case the court sometimes softens the sentence adjudicated by the court of the first instance; etc.).

-the trial court and the appellate court take significant efforts to fill the gaps of the preliminary investigation;

-up to 2/3 of criminal cases in the modern criminal proceedings are tried under the special procedure and, accordingly, the question of discrepancies between the court's findings set out in the judgment and the factual circumstances of the case established by the court of the first, appeal, cassation instance (in fact, the gaps in the judicial investigation due to incompleteness, onesidedness and biased investigation of the criminal case circumstances) is not a matter of topical interest.

The structural differences of quantitative characteristics of investigative and judicial errors do not impede considering the content for each of these types of errors.

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Errors related to non-observance in criminal proceedings of constitutional human and civil rights and freedoms of an individual, as well as international standards of criminal

proceedings (the fair trial)

It is notable that in the survey held among practitioners, it is only lawyers (30.2%) who gave the violations of the Constitution and international standards of the fair trial the status of a separate type of errors. Judges, prosecutors and preliminary investigators did not give this type of errors an independent status79. Nevertheless, this study gives a special status to this kind of errors as the new political, economic, and social conditions in Russia have led to the emergence of a new system of values, the most important of which, according to the second article of the Constitution of the RF, is an individual with his rights and freedoms secured by the state. Having direct effect, the Basic Law of the country has enshrined specific guarantees of citizens' rights, taking into account the requirements of modern and international standards, in the criminal procedure. Fundamental principles of criminal proceedings are granted the status of constitutional ones.

The errors under consideration are due to non-observance in criminal proceedings of:

-the presumption of innocence (Article 49 of the Constitution of the RF);

-the equality of all persons before the law and the court (Article 19 of the Constitution of

the RF);

-the right to judicial protection of rights and freedoms, and to judicial review of decisions and actions (or omissions) of officials (Article 46 of the Constitution of the RF);

-the right to qualified legal assistance (Article 48 of the Constitution of the RF);

-the right to witness immunity (Article 51 of the Constitution of the RF);

-the right of a victim to the access to justice and compensation for damage (Article 53 of the Constitution of the RF);

-the right to personal integrity, inviolability of the home, privacy of correspondence, telephone conversations, postal, telegraph and other communications (Articles 22, 23, 25 of the Constitution of the RF);

-the right to non-use of illegal methods of conducting preliminary investigation80 (Articles 21, 50 of the Constitution of the RF).

This study does not aspire to consider the statistics and examples for each of constitutional violations in detail, especially since the author has already done this81. Here, we are going to

79Appendix № 44.

80You may sometimes encounter the phrase ‘unlawful and illegitimate methods’ in the literature. We believe that all legitimate methods of preliminary investigation and operational-search activities are to be lawful whereas illegitimate methods may not be lawful.

81See. Nazarov A.D. The effect of investigative errors on court errors. St.Pb.: ‘Legal Center Press’ Publishing House, 2003. P. 24-65.

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address only those errors which seem to be most significant in the context of observing constitutional human and civil rights and freedoms of an individual in criminal proceedings.

Criminal proceedings, despite its domineering, state-coercive nature, may not be inhuman and barbarous.

Article 21 of the Constitution of the RF states that:

1.Human dignity shall be protected by the State. Nothing may serve as a basis for its derogation.

2.No one shall be subject to torture, violence or other severe or humiliating treatment or punishment. No one may be subject to medical, scientific and other experiments without voluntary consent.

The study of the problem of illegal practices in preliminary investigation within this research is driven by the need to eliminate them from the criminal proceedings in Russia, as well as by the need to study the specificity of the effect these methods have on the course of normal proving process in criminal cases.

When performing the research, we did not encounter a single proven case, testifying that an investigator personally applied illegal methods of torture, physical abuse towards their suspects.

Illegal methods in preliminary investigation (primarily physical, mental abuse and torture) are most often used by police officers (officers of the criminal intelligence service, local district police officers, etc.) keeping it secretive from the investigator, the prosecutor, the court. They are usually the first, rather than the investigator, to establish future suspects accused in a criminal case and have opportunities to meet with them procedurally and non-procedurally, both on the outside and in places of custody (in a temporary detention facility, a confinement cell).

The efficiency of official activities of the police (and first of all, of units criminal intelligence service, precinct police departments, organized crime economic crime, and drug trafficking investigation divisions, etc.) is assessed through the rate of identified and solved crimes. And to improve these rates, which determine the financial remuneration of employees and their career development, they use all means, including, the ones not consistent with the requirements of the law.

It is worth emphasizing that failure of the investigator, the prosecutor, the court to take appropriate measures to identify application of illegal methods by operational law enforcement officers is regarded herein as a professional error committed by the investigator, the prosecutor, the court (in our interpretation - a fundamental judicial error). And therefore, in the current situation in law enforcement agencies in Russia, it is relevant to constantly implement organizational and procedural measures to prevent all kinds of illegal practices in preliminary

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investigation and operational-search activity. Many of them are provided for in the Code of Criminal Procedure of the Russian Federation.

Firstly, the following principal provisions are set forth:

-violation of the Code of Criminal Procedure of the Russian Federation by the court, the prosecutor, the investigator, the inquiring agency, or the inquiry officer, in the course of criminal proceedings entails the evidence obtained in this way being declared inadmissible (Part 3 of Art

.7);

-in the course of criminal proceedings it is prohibited to implement actions and decisions degrading the honor of a party to criminal proceedings, as well as treatment degrading his human dignity or endangering his life and health; none of participants in criminal proceedings may be subjected to violence, torture or other cruel or degrading treatment (Article 9);

-a person against whom detention is applied as a preventive restrictive measure, as well as a person detained on suspicion of committing a crime, is to be kept in conditions which do not

endanger his life or health (Article 10 § 3).

Secondly, judicial control institutions (Article 29 of the Code of Criminal Procedure of the RF), public prosecutor's supervision (Article 37 of the Code of Criminal Procedure of the RF), the institute of protection (Articles 49-53 of the Code of Criminal Procedure of the RF), rehabilitation (Articles 133-139 Code of Criminal Procedure of the RF) have been modernized.

The following provisions of the CPC of the RF are to be mentioned specifically.

1.The suspect and the accused officially received the right to have a meeting with the legal counsel in private and confidentially, including prior to the first interrogation of the suspect, the accused, without limitation of the number of such meetings and duration thereof (Sec. 3 of Part 4 of Article 46, Sec. 9 of Part 4 of Article 47 of the Code of Criminal Procedure of the RF).

2.Witness officially received the right to be interrogated in the presence of his or her legal counsel (Sec. 6 of Part 4 of Article 56 of the Code of Criminal Procedure of the RF).

There were years of practice when initially ‘suspected’ persons were interrogated by operational officers, inquirers, investigators as witnesses and, of course, without a legal representative. In such interrogations and interviews ‘witnesses’ had to give information incriminating them.

The participation of a legal counsel in these interviews or interrogations is a guarantee of the observance of rights of the individual in such proceedings.

3. Article 75 of the Code of Criminal Procedure of the R, referring to inadmissible evidence, seems to be of great importance.

Inadmissibility of evidence is the reason to exclude it from the evidence in the case.

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4.The legislature emphasizes that any use of violence, threats or other illegal means, as well as endangering lives and health of persons involved, is unacceptable when performing investigative activities (P.4 Article 164 of the of Criminal Procedure of the RF).

5.Special terms are set forth to be applied in proving the results of operational-search activity: the results may not be used if they do not meet the requirements of the Code of Criminal Procedure of the RF for evidence (Article 89).

6.The legislature has restricted the access of the operational officers to persons under investigation.

In particular, to carry out operational-search activities it is allowed for the inquiry agency officer performing such operational-search activity to meet the suspect with the consent of the inquiry officer, the investigator, the prosecutor, or the court, in charge of the criminal case proceedings (P.2 Article 95 of the Code of Criminal Procedure of the RF).

Although this Article of the Code of Criminal Procedure of the RF refers to the suspect, on the basis of the procedural analogy, we believe that this rule applies to the accused as well.

7.The legislature raised an obstacle on the path of endless calls of the accused for

interrogation in cases when he does not admit his or her guilt and refused to testify: ‘A repeated interrogation of the accused on the same charge, if he has refused to give evidence at the first interrogation, may be conducted only at the request of the accused himself’ (P.4 Article 173 of the

Code of Criminal Procedure of the RF).

It is quite difficult to provide exact statistical evaluation of the use of illegal methods in preliminary investigation. However, the surveys of practitioners carried out within this research showed the following: formal and informal claims of operational officers applying illegal practices in preliminary investigation were filed with judges at pretrial stages by suspects, the accused, their legal representatives and counsels in one out of two case in 50% of cases ( almost in one out of ten in 44.4% of cases); at trial stages – almost in one out of two cases in 66.7% of cases (almost in one out of ten in 38.9% of cases); similar claims from these parties to proceedings were filed with prosecutors almost in one out of two cases in 61.1% of cases (almost in one out of ten in 27.8% of cases); legal counsels got such statements in almost every second case in 20.7% of cases (almost in every tenth case in 50.1% of cases)82.

Of course, one should make allowances for the fact that some of the above claims from parties to proceedings are, of course, not reasoned and caused, first of all, by the desire to avoid criminal liability by all means, which is often taken into account and recorded in decisions on such

82 Appendix №44.

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claims by subjects conducting proceedings. But, nevertheless, there are violations of Article 21 of the Constitution of the Russian Federation and they should raise reasonable concern.

It is worth noting that 69.2% of investigators surveyed said they did not receive any claims of operational officers applying illegal methods from suspects, the accused, their legal representatives and counselors. It is possible to make a suggestion that some investigators ‘cover’ the use of illegal methods by operational staff, which should also raise a reasonable concern.

Thus, illegal methods in preliminary investigation usually applied by police officers secretly from the investigator, the prosecutor, the court lead to serious investigative and judicial errors. Application of these methods is the reason why the investigator receives false evidence, prevents full, complete and objective investigation of circumstances of the case and so on.

The investigator, the prosecutor, the court should immediately react to claims of persons under investigation and defendants informing of the application of force to them by police officers,

‘inmates’, should not ignore injuries of the individuals in custody, should take interest in their inadequate mental state and so on.

Due and objective verification of all these facts, punishment of perpetrators, allowing arbitrariness in the exercise of their duties, are an effective way of preventing investigative and judicial errors being serious consequences of such arbitrary abuse.

In the structural characteristic of errors, violations of constitutional norms are of particular importance as the price for these errors is great. Offering above a version of error classification (non-fundamental and fundamental errors), we pay special attention to errors which appear in a criminal case in the application by the law enforcement officials of illegal practices in preliminary investigation, including when carrying out operational-search activities.

Errors related to shortages of preliminary investigation (incompleteness, one-sidedness and bias in establishing the circumstances subject to proof in a criminal case)

In the structure of investigative errors, preliminary investigation gaps, namely incompleteness, one-sidedness and bias, have always topped the list.

50% of the judges surveyed, 77.8% of prosecutor’s office employees, 80.4% of legal representatives, 87.1%, of investigators consider that it is most often preliminary investigation shortages, or gaps, as errors that are made by investigators and interrogators in criminal cases83.

The notion ‘preliminary investigation gap’ is not used in the criminal procedure law; however, it is widely used in the criminal procedure literature, investigative and judicial practice.

83 Appendix №44.

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Y.V. Korenevsky believes that the term ‘investigative gap’ is synonymous with investigative shortcomings and in a narrow sense it is used to refer to incompleteness of investigation84.

E.G. Veretehin defined preliminary investigation gaps as ‘those shortcomings of investigation which are expressed in one-sided, incomplete and biased study of the case circumstances during inquiry or preliminary investigation”85.

M.I. Bazhanov, E.G. Martynchik, T.A. Mikhailova, Y.O. Motovilovker, I.D. Perlov, I.V.

Tyrichev apply the notion ‘gap’ to describe a specific part of preliminary investigation shortcomings, namely, its one-sidedness and incompleteness86.

Preliminary investigation gaps are deemed here as a complete failure to comply with the requirements of the law with regard to complete, full and objective investigation of the case circumstances, failure to identify or improper identification of both incriminating and exculpatory, as well as mitigating or aggravating his responsibility, circumstances.

There is no consensus among scientists-processualists with regard to the definition of incompleteness and one-sidedness of the case investigation.

L.A. Bogoslovskaya believes that one-sided and incomplete inquiry or investigation is the one which has not established some circumstances, being a part of the evidence, or has not involved, used, or misused, some evidence reliably establishing the presence or absence of these circumstances87.

O.N. Temushkin is convinced that one-sidedness or incompleteness of preliminary or judicial investigation is manifested in various aspects of crime being left uninvestigated88.

V.A. Poznanskiy and I.I. Poteruzha assume that the case will be one-sidedly investigated if the investigator, or the person conducting the inquiry, only investigates the circumstances of the case from the standpoint of the prosecution or the defense89.

84Korenevsky Y.V. Court practice and perfecting preliminary investigation / Y.V. Korenevsky. M., 1974. - P. 23.

85Veretekhin E.G. Gaps in preliminary investigation and rectifying them of the court of the first instance / E.G. Veretekhin. Kazan, 1988, p. 8.

86Bazhanov M.I. Committal for trial in Soviet criminal procedure: Lectures / M.I. Bazhanov. - Kharkiv, 1965. P. 14; Martynchik E.G. Guarantees of the rights of the accused in the court of the first instance / E.G. Martynchik. Kishivev, 1975. P. 102; Mikhaylova T.A. Committal for trial in Soviet criminal procedure / T.A. Mikhaylova. M., 1981, p. 33; Motovilovker Y.O. Some theoretical issues of the criminal procedure in the light of the new criminal procedure legislation / Y.O. Motovilovker. Kemerovo, 1962, p. 77; Perlov I.D. The judicial investigation in Soviet criminal proceedings / I.D. Perlov. M., 1955. - P. 53; Tyrichev I.V. Grounds for a cassation. From his book: Soviet criminal proceedings / ed. L.M. Karneeva, P.A. Lupinskaya, I.V. Tyricheva / I.V. Tyrichev. M., 1980. P. 416.

87Bogoslovskaya L.A. Grounds for vacating or changing judgments / L.A. Bogoslovskaya. Kharkov, 1981. P. 43.

88Temushkin O.N. Grounds for vacating or changing sentences in cassation and supervision proceedings // Soviet justice. 1976. - № 19. P. 7.

89Poznanskiy V.A. A biased approach or incompleteness of preliminary and judicial investigation as grounds for vacating or changing a sentence. – The bulletin of Saratov. Law Univ. Vol. VIII / V.A. Poznanskiy. Saratov, 1959. - P. 34; Poteruzha I.I. The role of the court of the second instance in the strengthening of legitimacy / I.I. Poteruzha. Minsk, 1980. P. 106.

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According to V.V. Voskresenskiy, ‘incompleteness of investigation should be interpreted as failure to establish all the circumstances in proof whereas one-sidedness of investigation is investigation of the circumstances of the case from one version stand-point while ignoring other versions’90.

Modern researchers rarely delve into the essence of preliminary investigation gaps, in the characteristics of its components, such as incompleteness, one-sidedness, biased approach. This is partly due to the fact that the modern criminal procedure law does not have the formula that was set forth in the famous article 20 of the Code of Criminal Procedure of the RSFSR

(‘Comprehensive, complete and objective investigation of the circumstances of the case’) both at the level of principle in criminal proceedings, and at the level of the most common grounds for the prosecutor and the court to return a criminal case for further investigation.

An original approach to defining the structure of ‘comprehensiveness, completeness, objectivity’ is offered by A.S. Barabash and A.A. Brester. Having studied philosophy and criminal procedure aspects of objectivity, comprehensiveness and completeness, the researchers came to the conclusion that in criminal proceedings the structure is not the purpose of proceedings and not the principle, but the method. They offered to introduce a corresponding article into the general part of the Criminal Procedure Code of the Russian Federation: ‘Article X. The method of criminal procedure activities. In criminal proceedings the inquiry officer, the investigator, the prosecutor, the court must be guided by objectivity, comprehensiveness and completeness of investigation, i.e. to establish all necessary links between the evidence which lead to a reasonable conclusion about a particular circumstance, subject to proof, or all circumstances, subject to proof, in system”91.

The team of scientists led by L.V. Golovko, revealing the essence of the principle of material truth in criminal proceedings, i.e. the duty of subjects conducting criminal proceedings thoroughly, comprehensively and objectively establish (investigate) the circumstances of a criminal case, had good reason to interpret comprehensive study of these circumstances as exhaustive study of all circumstances relevant to the case, all possible versions of the event under investigation offered and checked; a complete study meant for them that the circumstances relevant to the case were established by the totality of the evidence necessary and sufficient for reliable conclusions; the objectivity of the investigation was deemed to be unbiased, impartial investigation of the circumstances proving both against and in favor of the accused (defendant)92.

90 Voskresenskiy V.V. Theory and practice of further investigation in cases of first-degree murder / V.V. Voskresenskiy. M., 1988, p. 21.

91Barabash A.S., Brester A.A. Russian criminal procedure method. St.Pb.: Publishing house ‘Legal Center-Press’, 2013 P.94-138.

92The course of criminal proceedings / ed. Doctor of Jur. Sc. Professor L.V. Golovko. M.: Statut, 2016. P.294-296.

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The position of L.V. Golovko and his team presented above is consistent with the definition of comprehensiveness, completeness and objectivity of investigation of the circumstances of a criminal case offered by A.B. Solovyev and his colleagues researching these issues.

Comprehensiveness is reasonably interpreted as identifying all circumstances subject to proof in a complete investigation of all objectively possible versions. One-sidedness of preliminary investigation is sticking to one version, lack of investigation from the perspective of objectively possible versions of circumstances of the case.

Complete investigation means obtaining such cumulative evidence which is necessary and sufficient to reliably establish this or that circumstance subject to proof in a criminal case.

Objectivity of investigation of the case circumstances, according to these authors, is the absence of any personal interest in the outcome of the case; identifying both incriminating and exculpatory, as well as mitigating and aggravating his responsibility, circumstances; unbiased approach to the evaluation of the evidence collected and to making decisions in a criminal case. Objectivity is, above all, the requirement to the assessment of the evidence collected93.

We absolutely agree with the above approaches of the scientists A.B. Solovyev, L.V. Golovko and their colleagues with regard to the definition of the concepts of comprehensiveness, completeness, objectivity of investigation of case circumstances. Indeed, criminal investigation should be carried out thoroughly and completely, and the evidence collected and verified should be assessed objectively. Only under these conditions may we avoid any gaps in preliminary investigation.

The errors under consideration are generally due to the decision taken by the investigator (committal the case for trial, suspension or termination of the case, etc.) not being based on the necessary and sufficient totality of evidence.

These errors, in turn, may be divided into errors in the subject matter of proof and errors within proving (the investigator has not gathered enough reliable evidence to consider every fact, which is part of the subject of proof, established). Half of all cases of one-sidedness and incompleteness were the insufficient study of such element of proof as the guilt of the accused. About a third of such errors are committed during investigation of a criminal act. The rest of omissions concerned the investigation of identity of the accused, the nature and extent of damage94.

93Solovyev A.B., Bagautdinov F.N., Filippov M.N. Prosecutor's supervision of comprehensiveness, completeness and objectivity of crime investigation / A.B. Solovyev, F.N. Bagautdinov, M.N. Filippov. M., 1996, p. 8-9.

94Shaifer S.A. The structure and general characteristics of investigative errors // Issues of consolidating legality and eliminating errors in criminal proceedings. Coll. of ac. papers. M., 1988. P. 19.

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The above once again demonstrates the practical significance of studying preliminary investigation gaps95, and methods for their detection and rectification.

Addressing issues related to preliminary investigation, it is worth noting that, in our view, we consider preliminary investigation to be thorough when the court does not have to fill any gaps as there are none. The investigation may be regarded as sound to a certain degree when, arranging court hearing or during judicial proceedings, it was possible to fill the gaps of the preliminary investigation. Lack of such a possibility evidences of low quality of the preliminary investigation.

Our opinion on the effectiveness of preliminary investigation is in agreement with the views expressed by A.B. Solovyev and G.S. Kazinyan when addressing issues of investigation efficiency.

‘The effectiveness of the system of investigation, first of all, implies the effectiveness of its constituent elements, i.e. individual investigation activities. The latter is determined by:

1)optimal procedural regulation of general provisions relating to methods of collecting evidence, and the procedure for specific investigative activities;

2)the right choice of an action appropriate in a particular investigation situation by the investigator;

3)creating favorable conditions for performing such actions through organizational and preparatory steps;

4)obtaining all evidentiary information possible in a particular situation of the

investigation’96.

The possibility to fill some preliminary investigation gaps in the court should never encourage investigators to allow any indulgence in the investigation of criminal cases. On the contrary, being aware of the criteria of non-rectification of preliminary investigation gaps in the court, the investigator shall constantly focus on carrying out qualitative and effective investigation of the case.

Rectification of preliminary investigation gaps is becoming even more relevant in the light of applying the Code of Criminal Procedure of the RF which eliminates the possibility for the court to return criminal cases for further investigation on this basis. The court has to make every effort to address shortcomings of preliminary investigation; the Code of Criminal Procedure of the RF provides a whole arsenal of powers since the court is to render both guilty and acquittal judgment taking into account the requirements of legality, reasonableness and adequacy of the body of evidence.

95On the gaps in preliminary investigation see: Nazarov A.D. The effect of investigative errors on court errors. St.Pb.:

‘Legal Center Press’ Publishing House, 2003. P. 60-92.

96Kazinyan G.S., Solovyev A.B. Issues of efficiency in investigation activities / G.S. Kazinyan, A.B. Solovyev. Yerevan, 1987, p. 32-33.