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The study of criminal cases has showed the prevalence of the following preliminary

investigation shortcomings.

In 41% of criminal cases studied within this research97, we found shortages, or gaps, related to interrogations of suspects, defendants: the reasons of the accused admitting guilt, admitting partial guilt, are set out incorrectly, without detail; circumstances relating to the charges were not fully clarified during interrogation; the accused refusing to admit guilt was not familiarized with the evidence incriminating him of committing the crime; necessary face-to-face confrontations were not carried out, and so forth.

53% of criminal showed gaps related to interrogations of witnesses, victims: their interrogation was not held timely and as a result, their testimony had noticeable distortion of real facts; the contradictions in the testimony and some statements of the interrogated were ignored; not clarifying important circumstances of the case in the course of interrogation; determining the subject of the interrogation incorrectly, with the result being that many witnesses were questioned repeatedly, and important information was not received in due time; not presenting the available evidence being at the disposal of the investigator when necessary during the interrogation; excessive laconism of testimony record in the records of interrogation, and as a result significant circumstances not being recorded, the content of the testimony being distorted; no necessary face- to-face confrontations, or verifications of testimony on site, were carried out; no measures were taken to eliminate the influence by the accused, and people related to him, on victims, witnesses aimed at changing their testimony and positions with regard to the case and so forth.

Note that 18% of interrogations of suspects, or the accused, were recorded on video, whereas interrogations of victims, witnesses were only recorded in 3% of cases. Audio recording in the interrogation of the accused was used in 4% of cases, and in the interrogation of witnesses, victims it was used in 2% of cases.

A certain impulse to apply technical means during interrogations, confrontations, identifications, on-site verification of testimonies of juvenile victims and witnesses occurred in connection with the inclusion of part 5 into Article 191 of the Criminal Procedure Code of the Russian Federation providing for the mandatory application of video recording in these investigative actions. However, the legislature did not, unfortunately, resist the reservation that if minors themselves or their legal representatives object to video recording, video recording is not applied. Currently, it is often a case that the parties to investigation mentioned above object to video recording ‘for some reason’ and investigators willingly meet their request and do not use video cameras.

97 Hereinafter we give empirical data from our research of gaps in preliminary investigation: see Appendix №2.

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We suppose that, if necessary, based on the analogy of the law, such procedure for the application of video recording and filming in the above-mentioned activities in investigation should also apply to juvenile suspects, the juvenile accused, as well as in respect to adult participants in criminal proceedings.

In 32% of criminal cases, we found shortcomings related to the crime scene investigation: territories, premises adjacent to the scene were not inspected; possible routes of approaching and leaving the offender might have used were not examined; not all traces and other physical evidence were detected at the scene; traces and evidence having relevance to the case were not seized from the scene; no scientific and technological means or experts facilitation was applied when examining the scene; inspection records did not contain full information about the crime scene and traces of the crime; the crime scene investigation was not conducted in due time.

19% of criminal cases had shortcomings related to the appointment and conduct of forensic examinations: no necessary expertise was carried out; the expert was not asked all the necessary questions; examinations were not conducted properly; incorrectly packed, incomplete material was sent to examination, etc.

In 7% of criminal cases gaps related to identification, search, seizure, examination were identified.

The study of criminal cases gives a clear picture of the growing use of results of operational-search activity (test purchasing operations, sting operations, undercover operations, recordings of telephone conversations, covert video recording (surveillance), help of ‘confidants’, etc.) in proving cases.

The problems arising in the preparation of this kind of evidence are explained by the lack of legislative regulation for this type of proof, unwillingness of investigators and operational workers to work professionally under the schemes of operational support of the crime investigation process, allowing the information obtained operationally acquire the status of the evidence to the case.

There is no doubt that only legitimate and professional use of operational-search activity results in proving criminal cases will contribute to complete and comprehensive investigation of crimes, reducing the number of investigative errors.

At the moment, the issue of reducing shortages of preliminary investigation may be to some extent solved by skillful application of legal scholars’ recommendations offered to investigators with regard to ‘objectification’ of proof, i.e. establishing and recording factual data not subject to or substantially less subject to the influence of subjective factors.

The avenues to the ‘objectification’ of proof may be as follows:

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-broader application of forensic technology, instant examination of material evidence when conducting investigations;

-common use of forensic tests capabilities;

-using the help of experts;

-using of data received as a result of operational-search activity;

-creation of conditions protecting victims and witnesses (state protection of parties to criminal proceedings).

According to our research data, in 94% of cases experts were only involved for the inspection of the crime scene, whereas their participation in conducting other investigative activities was seen only in one out of 7-8 cases.

Lawyers have repeatedly expressed the opinion, which we fully support, that the Code of Criminal Procedure of the RF should provide a series of articles encouraging the investigator to apply scientific and technical resources (STRs) in the investigation (including mandatory audio or video recording of the interrogation of the accused, crime scene examination, etc.). The literature lists the basic requirements to scientific and technical means used in preliminary investigation and judicial proceedings:

a) conformity to up-to-date advances of science and technology;

b) non-infringement of the rights of the citizen; their life and health safety; c) non-violation of honor and dignity;

d) not causing changes in the objects to which they are applied; e) accuracy of the result98.

However, in our opinion, the Code of Criminal Procedure of the RF does not specify the regulation for the use of STR comprehensively enough.

Part 6 of Article 164 and Part 2 of Article 166 stipulate that investigative actions may be conducted with technical means and methods for detection, recording and withdrawal of traces and material evidence of the crime.

The legislature, in certain cases, allows investigative actions without the participation of witnesses (difficult access areas, lack of appropriate means of communication, danger to life and health of people during the investigative procedure, etc.) offering to use technical means to record the progress and results of such actions. But if the use of these means is not possible, the records just get appropriate mentioning thereof.

98 Parties to criminal proceedings and the prosecutor’s supervision of their rights and legitimate interests being ensured by investigation authorities: Study guide / N.A. Yakubovich, A.A. Levi. M., 1995. P. 44-45.

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Y.K. Yakimovich is absolutely right to see the principle of comprehensiveness, completeness and objectivity of preliminary investigation in the modern criminal proceedings99.

Article 73 of the Code of Criminal Procedure of the RF sets out the circumstances to be proven in a criminal case in detail. It is the identification and proof of these circumstances in a comprehensive examination of all possible versions that will be an indicator of objective and comprehensive investigation of a case.

In Article 74 of the Criminal Procedure Code of the Russian Federation provides a list of evidence admissible in criminal proceedings. It is the totality of this evidence which is necessary (i.e. are relevant), qualitative (i.e. are allowed) and sufficient to reliably establish circumstances to be proven in a criminal case that is the comprehensiveness of investigation.

Circumstances subject to proving and excluding criminality and punishability of an act, mitigating and aggravating the punishment, being able to lead to exemption from criminal liability and punishment (Article 73 of the Criminal Procedure Code of the Russian Federation), detailed regulation of the institute of disqualification of participants of proceedings (Articles 61-72 of the Code of Criminal Procedure of the RF), rules for the evaluation of evidence (Article 89 of the Code of Criminal Procedure of the RF) are nothing other than the desire to achieve objectivity in the resolution of a criminal case.

Thus, the criminal procedural law substantively implies completeness, comprehensiveness and objectivity of criminal case investigation. However, it provides somewhat different regulation procedures in cases where subjects conducting proceedings allow one-sidedness, incompleteness and biased approach.

According to the Criminal Procedure Code of the Russian Federation, it is only the head of the investigative agency and the prosecutor that are entitled to send a criminal case for further investigation because of incompleteness and one-sidedness of the investigation of the subject of proof circumstances. In particular, Paragraph 3 of Part 1 of Article 221 of the Code of Criminal Procedure of the RF sets forth: with regard to the case transferred to him with a conclusion to indict, the prosecutor may take a decision to return it, with his written instructions, to the investigator for further investigation or for redrawing the indictment and eliminating of shortages.

It is worth noting that in the practice of criminal procedure the terms ‘incompleteness, onesidedness’ of investigation are now used cautiously. All of them, as well as ‘violations of constitutional human and civil rights and freedoms’, ‘substantial violations of the criminal

99 Yakimovich Y.K. Pan T.D. Pre-trial proceedings in the Criminal Procedure Code of the Russian Federation (parties to pretrial proceedings, evidence and proof, initiation of a criminal case, inquiry and preliminary investigation). St.Pb.:

‘Legal Center Press’ Publishing House, 2003. P. 129-130.

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procedural law’, ‘incorrect application of the criminal law’, are covered by the term 'preliminary investigation shortcomings’.

Where the prosecutor receives a criminal case with an indictment from an inquirer and such case has shortcomings, the prosecutor, according to Sec. 4 Article 226 Part 1 of the Code of Criminal Procedure of the RF, sends the case to preliminary investigation100.

Courts of all instances on any grounds do not return criminal cases to the prosecutor for further investigation. Endless referrals of criminal cases for further investigation by courts, particularly according to the famous article 20 of the Code of Criminal Procedure of the USSR101, are now a thing of the past. Currently, the legislator requires a final court judgment of the case: either conviction, or acquittal, or dismissal. On the other hand, the amendments to Article 237 of the Code of Criminal Procedure of the RF and law enforcement practice, in fact, covertly revived, in a new capacity, the institute of referral of a criminal case by the court for further investigation, which is further discussed hereafter.

It is only the prosecutor, under whose supervision the criminal prosecution is performed, that keeps the right to an unlimited number of referrals of a case back for further investigation.

At the same time, to a certain extent, the courts, when trying criminal cases, will have to fill the gaps of preliminary investigation at the initiative of parties to a case or at their own discretion.

The court is a subject of criminal case proving procedure (Articles 85-88 of the Code of Criminal Procedure of the RF). The court has a sufficient arsenal of tools – judicial or other procedural actions (Articles 228, 229, 230, 234, 235, 271, 273-291 of the Code of Criminal Procedure of the RF). The only important thing is that the court does not go beyond the rule established by Sec. 3 of Article 15 of the Code of Criminal Procedure of the RF: ‘The court shall not be seen as a body of criminal prosecution, it shall not come out either on the side of the

100To be more specific, the list of powers of the prosecutor includes the power to return a criminal case to the investigator with the instructions to conduct further additional investigation (s.15 Ch. 2 Article 37 of the Criminal Procedure Code of the Russian Federation). We believe that the investigator, as instructed by the prosecutor, conducts further investigation in the criminal case (which is equivalent to a further inquiry), where the prosecutor either did not agree with the decision on the termination of such case or of criminal prosecution (Articles 24-28 of the Code of Criminal Procedure), or relying on the powers vested in him by article 37 of the Criminal Procedure Code of the

Russian Federation, vacated the inquirer’s decision on the termination of criminal proceedings or criminal prosecution.

In this case, pursuant to Article 223 of the Criminal Procedure Code the inquiry period may be extended by the prosecutor, but not more than for 10 days. Moreover, the prosecutor may extend the period of the inquiry, but no more than for 3 days, and return the criminal case to the inquirer for redrawing the indictment (paragraph 2 Article 226 Chapter 1 of the Criminal Procedure Code of the Russian Federation). The prosecutor may also reject the indictment and refer the case, which has been investigated in accordance with the abbreviated form of inquiry, to the inquirer for further investigation per standard procedure (Articles 226-8 of the Code of Criminal Procedure).

101The Criminal Procedure Code of the RSFSR with appendices / Comp. Cand.Jurid.Sc. N.M. Kipnis, 2nd ed., Rev. and ext. M.: Jurisprudence, 2001. P.16.

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prosecution or on the side of the defence. The court shall create the necessary conditions for the parties to discharge their procedural duties and to exercise the rights, granted to them.’

It is worth noting that, similarly to preliminary investigation shortages, here it is possible to talk about shortages of judicial investigation in the trial court and the court of appeal. These judicial investigation gaps are also related to one-sidedness, incompleteness and biased approach to clarifying circumstances of the subject of proof in a criminal case (in the wording of the legislator it sounds like 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). The relevance of this kind of errors to their structure and their characteristics have been already discussed above.

Errors related to significant violations of the Criminal Procedure Law

This kind of investigative errors is the second most common after preliminary investigation gaps: that is the opinion of 66.7% of judges, 55.6% of prosecutors, and 40.6% of lawyers surveyed

102.

The provision of a material violation of the criminal procedural law was previously stipulated in Article 345 of the Code of Criminal Procedure of the RSFSR:

‘Those violations of the requirements of the articles of the present Code, which by depriving or restricting the rights guaranteed by law of participants in a case during consideration of the case or otherwise, have prevented a court from thoroughly examining the case and have influenced or might have influenced the decreeing of a legal and well-founded judgment shall be deemed substantial violations of the criminal procedure law.’

Legal literature treats violations of the criminal procedural law differently. Some authors consider this to be a violation of the legal procedure of investigation and consideration of cases, which may lead to restrains and restrictions of rights of parties and a wrong judgment on the case103.

Others consider a violation of the criminal procedure law to be a violation of the rules of the CPC when investigating and hearing the case in court104.

The third group of authors interprets violations of the criminal procedure law as a kind of investigative and judicial errors which manifest themselves in wrong actions or are a result of a cognition act105.

102Appendix №44.

103Grodzinskiy M.M. The cassation and supervision proceedings in Soviet criminal procedure / M.M. Grodzinskiy. M., 1949. P. 102.

104Strogovich M.S. Review of the legality and relevance of court sentences / M.S. Strogovich. M., 1956. P. 77.

105Efficiency of justice and the issues of eliminating judicial errors. M., 1975. Part 2. P. 117.

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Violations of the criminal procedure law are also defined as ‘any failure to comply with any requirements of the criminal procedural law by a judge, a prosecutor, an investigator, and a person conducting the inquiry, when initiating, investigating and adjudicating a criminal case’106.

The opinions of the above-mentioned authors show how wide the notion of ‘violations of the criminal procedure law’ is. However, it is not the consequences of all violations of the criminal procedural law, but only the consequences of substantive violations thereof that are significant for criminal proceedings.

Different approaches in the interpretation of essential violations of the criminal procedural law are explained through their estimative nature.

A.A. Shirvanov believes that a substantive violation of the criminal procedure law is an offense committed by state bodies and officials conducting criminal proceedings, as well as by parties to proceedings, where the requirements of constitutional and criminal procedure norms are violated and which, through deprivation or restraint of legally guaranteed rights of parties to proceedings (or otherwise), prevented full investigation (or adjudication of the case) and led (or might have led) to illegality and invalidity of the decision taken, whereas an insubstantive violation of the criminal procedure law, in his view, is ‘a deviation by an inquiry body, an investigator, a prosecutor, a judge, or the court, from provisions of the criminal procedure law with respect to the procedure of the actions taken; particulars of criminal procedure acts; procedural terms, if they have not affected and could not affect the legality of the judgment on the case, as well as evasion of subjects and non-subjects of proceedings from the execution of their procedural obligations’107.

The issue of differentiating substantive and non-substantive violations of the criminal procedure law was addressed by L.A. Voskobitova, who believed that the main and the only sign distinguishing substantive and non-substantive violations were consequences, i.e. the degree of their influence on adjudicating a legal sentence.

In this regard, she specifies three criteria for substantiveness.

1.The violation prevents comprehensive investigation of the case, and therefore may lead to an unfounded and illegal sentence.

2.The violation in some other way affects adjudicating a legal sentence.

3.The violation may directly affect adjudicating a legitimate and reasonable sentence108.

106Yerofeyev G.A. Violations of criminal procedural law as grounds for review of sentences: Diss. for Cand. Jurid. Science / G.A. Yerofeyev. Sverdlovsk, 1977. P. 18.

107Shirvanov A.A. Substantive violations of the criminal procedure law as the grounds of returning cases for further investigation: dis. for Cand. Jurid. Sc. / A.A. Shirvani. M.: MIA RF Administration Academy, 1999, p. 69, 85.

108Voskobitova L.A. The system of grounds to vacate a judgment under cassation procedure / L.A. Voskobitova. M., 1985. P. 22.

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Thus, the sign of a substantive violation of the criminal procedure law is rightly related by jurists to criminal proceeding consequences which have occurred or might have occurred as a result of such violations.

In our view, substantive violations of the criminal procedural law are such violations which, through deprivation or restraint of legally guaranteed rights of participants in the process of investigating and considering a case in court resulted, or could have resulted, in such criminal case referral for further investigation, the court returning the criminal case to the prosecutor in compliance with Article 237 of the Criminal procedure Code of the Russian Federation, declaring the evidence inadmissible, which affected or could have affected the legal and grounded final decision on the case.

Let us consider the characteristics of substantive violations of the criminal procedure law leading to referral of cases for further investigation by the prosecutor, the court returning a criminal case to the prosecutor for the elimination of obstacles to its consideration, as well as leading to declaring the evidence in the case inadmissible.

The law does not provide an exhaustive list of violations of the criminal procedural law which invariably lead to the prosecutor referring a case for further investigation or the court returning a criminal case to the prosecutor for eliminating obstacles to its consideration.

The theory of criminal proceedings and judicial practice treat the following investigative errors as invariably leading to the prosecutor referring a case for further investigation or the court returning a criminal case to the prosecutor for eliminating obstacles to its consideration:

-if the investigation was carried out without a criminal case being initiated, or without the investigator agreeing to process the case;

-if, instead of the preliminary investigation prescribed by the law, an inquiry is conducted;

-if the investigation has been carried out by a person subject to be disqualified for reasons provided for by the law;

-if the legal requirement for providing an interpreter to the accused, who does not speak the language in which the preliminary investigation was carried out, was not met;

-if the right of the accused to defense was not observes, particularly in cases of the compulsory participation of a defense counsel109;

-if the rights of the accused and his legal counsel to be familiarized with all the materials of the completed inquiry or preliminary investigation were not observed;

-if there has not been conducted expert examination in cases where such expert examination is statutory.

109 It is worth noting that we consider this violation as an error related to non-compliance with the constitutional right of a person to receive qualified, including free, legal aid - Article 48 of the Constitution of the Russian Federation.

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It is worth noting that this list is not complete.

With regard to other violations of the criminal procedure law the right to adjudicate the matter of substantivity of a violation of criminal procedure requirements is vested in the subjects conducting proceedings.

Violations relating to the rules of uniting and separating criminal cases are frequent in the investigative and judicial practice and qualified as substantial violations of the criminal procedural law110.

The status of substantive violations is given to the violations of the Code of Criminal Procedure of the RF when drafting a statement of charge the investigator commits inaccuracy, vagueness, does not specify the charge, when the factual circumstances of the action committed does not correspond to the legal grounds of the alleged offense, when the legal qualification of the charges is out of accordance with the terms of the Criminal Code of the RF, when the subject matter of the indictment has discrepancies with the subject matter of the charges in the introduction, the resolutive part of the indictment and so forth.

As a result of substantive violations of the criminal procedure law, the court (the judge) may find certain evidence inadmissible on the grounds provided in Article 75 of the Code of Criminal Procedure of the RF and to exclude from the evidence (from the evidence base) which may be referenced to, including in support of defence.

For eliminating errors, the application of rules on the admissibility of evidence plays an important role at all stages of criminal procedure. All evidence, with no exception, collected to confirm the findings of the preliminary investigation and court proceedings of the criminal case, both supporting them and refuting them, are to meet the criteria of admissibility.

Declaring evidence inadmissible is a procedural sanction aimed to exclude evidence (formally remaining in the case) from the process of proving. Thereafter neither the prosecution nor the defense may rely on such evidence to support their positions or refute the arguments of the other party. However, the law allows, while excluding evidence as inadmissible at one stage (for example, listing a court trial at the preliminary hearing), at a later stage (for example, when hearing a criminal case on the merits) to return to the excluded evidence and reinstate its legal force. This provision of the legislator is criticized by some authors as illogical111, but we adhere to the position of the legislator, as the logic of stages in criminal proceedings is based on the following principle: each successive stage has the tools to remedy the errors of a previous stage.

110See, e.g.: Denisov S.A. The legality and validity of combining and separating criminal cases. M.: ‘Jurlitinform’ Publishing house, 2004. P.97-129.

111Yakimovich L.K. Trial of criminal cases in the court of the first instance per standard procedure: Study guide. St. Petersburg: Publishing House ‘Juridical Centre’, 2015. P.27.

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It is essential to remember that the legislator (article 88 The Code of Criminal Procedure of the RF) provides the investigator, the inquirer with the opportunity at the request of persons involved, or on his own initiative, to issue a decision and declare evidence inadmissible.

Earlier, V.D. Spasovich substantiated the theory of legitimate evidence derived from the

‘best’ source, with the cornerstone therein being the requirement to strictly comply with the law when preparing and assessing evidence, as well as receiving any evidence from a proven reliable source112. Legal scholars frequently address various issues related to the inadmissibility of evidence in criminal proceedings113.

O.N. Trenbak believes that “the rationale for declaring evidence inadmissible has three criteria: obtaining evidence is related to the violation of the federal law; such violations of the federal law are substantive, i.e. they may affect the adjudgement of lawful and reasoned sentence; such violations of the federal law may not be eliminated in the trial’114. Y.K. Yakimovich also spoke of the substantive nature of violations of the law for declaring evidence inadmissible115.

The question is what to consider a significant violation of the law entailing mandatory declaring evidence inadmissible and whether the violations committed may be eliminated during the trial. The ruling of the Supreme Court of the Russian Federation of March 5, 2004, №1 On the application of the norms of the Code of Criminal Procedure of the RF by court states that, ‘when solving the question of whether the evidence in a criminal case is inadmissible on the grounds specified in paragraph 3 of Part 2 Article 75 of the Code of Criminal Procedure of the RF, the court must find out what exactly such violation resulted in in every case’116. But the Plenum of the Supreme Court did not express its position on what violations of the law were to be considered substantive.

112Spasovich V.D. On the theory of forensic criminal evidence in relation to the judicial system and proceedings. St.Pb., 1861. P. 88-89.

113Pashin S.A. Admissibility of evidence // Russian justice. 1993. №7. P.27-28; Dugin A.T. Issues of criminalprocedural violation control of the investigation of crimes under the public prosecutor's supervision: Dis. for Cand. Jurid. Sc. M., 1995. P.125; Popov V. Common errors by the court when determining the admissibility of evidence // Russian justice. 2001. №1. P.52; Gromov N.A., Zaytseva S.A. Evaluation of evidence in criminal proceedings. M.: ‘Publishing house PRIOR’, 2002. - 128 p.; Litvinova I.V. The grounds and procedure for making the prosecutor’s decision on declaring evidence inadmissible: Study guide. Irkutsk: Irkutsk Law Institute of the Prosecutor General of the Russian Federation, 2003. P.6; Bykov V.M., Sitnikova T.Y. The grounds and procedure for declaring evidence inadmissible in accordance with the Criminal Procedure Code of the Russian Federation // Jurisprudence. 2004. №5. P. 142 - 150; Larina E.V. Declaring evidence inadmissible in criminal proceedings (at the stage of preliminary investigation): Ab. Dis. for Cand. Jurid. Sc. M., 2005. P.10; Grishina E.P., Abrosimov I.V. Admissibility of evidence in criminal proceedings - the problematic issues of conceptual interpretation and legal regulation // Criminal proceedings. 2007. №4. P.29-30; Zubarev A.A. The Institution of declaring evidence inadmissible in criminal proceedings and the legal consequences of its application. - M.: Jurlitinform, 2012; Solovyev A.B. Gathering and application of evidence in the preliminary investigation. M.: Jurlitinform, 2012.

114Trenbak O.N. Declaring evidence inadmissible and excluding it from the proceedings in a jury trial. Ab. diss. for Cand. Jurid. Sciences. Saratov, 2000. P. 7.

115Yakimovich J.K. Evidence and proof in Russian criminal proceedings: Study book. - Tomsk: Publishing house of Tom. Un., 2015. P.39-40.

116Rossiyskaya gazeta. 2004. 25 March.