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The most comprehensive review of scientific positions on the question of what kind of violations of the law are to be considered substantive is given in the paper of V.V. Zolotyh, who offers a classification of these violations.

More specifically, V.V. Zolotyh presented the following classification.

1.Violations when evidence was obtained by an improper subject.

2.Violations when the evidence is contained in an improper source.

3.Violations of statutory procedures for obtaining evidence.

4.Violations caused by examination of evidence obtained in violation of the criminal procedure law.

5.Violations caused by the fact that the witness, the victim may not indicate the source of their information.

6.Violations leading to the fact that the jury study the evidence characterizing the defendant or other information that may form the jury’s unfair prejudice117.

E.P. Grishina supposes that substantive violations of the law entailing compulsory declaring evidence inadmissible are the following: 1) violation of constitutional rights and freedoms of participants in criminal proceedings, obtaining evidence through deception, violence, threats or other illegal means among them; 2) violation of the procedure for investigative actions, set forth in the Code of Criminal Procedure of the RF, discrediting the validity of the information which is acquired through such action; 3) obtaining evidence by an unauthorized person; 4) obtaining evidence through a procedural action not provided for in the Code of Criminal Procedure of the RF; 5) other violations if they have affected or could have affected the reliability of the evidence obtained118.

V.A. Lazareva emphasizes that the evidence may only be recognized invalid in the case of significant, substantive violations of the law. A possibility to eliminate or neutralize their consequences is to be considered for other violations.

Admissibility of evidence is not its immanent quality which such evidence originally has at the moment of it being obtained and put in the case file. The conclusion on the admissibility of evidence is the result of evaluating such evidence by the investigator or the court which is set forth in a procedural decision. In the provisions of Article 17 of the Code of Criminal Procedure of the RF, the rules for excluding evidence obtained in violation of the law are set forth so that to provide the court with the right to freely and independently assess the evidence, which is the most important guarantee of real adversariality. The decision to declare evidence inadmissible has no

117Zolotyh V.V. Examination of evidence admissibility in criminal proceedings. Rostov-N / D., 1999. P.45-58.

118Grishina E.P. Substantive violations of the law as valid grounds for declaring evidence inadmissible // Criminal proceedings. 2007. №3. P.23.

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alternative only in the cases referred to in paragraph 1 and 2 of Part 2 Article 75 of the Code of Criminal Procedure of the RF. Violations of categorical legal prohibitions to perform certain actions (Articles 7, 9, Part 2 Article 56 of the Code of Criminal Procedure of the RF) are also undoubted grounds for this decision. Evidence obtained in violation of the categorical legal prohibition is not admissible. In other cases, the court decides whether to exclude evidence taking into account all circumstances of the case119.

The provision of paragraph 1 of Part 2 of Article 75 of the Code of Criminal Procedure of the RF is perceived as controversial among scientists120, with the extreme position being the assessment of the provision as descending to the theory of formal evidence, according to which evidence had a pre-determined value and legal force. But its presence in modern criminal proceedings is a necessity since the norm under consideration ‘is an important safeguard against self-incrimination and confession of guilt by the accused and the suspect under the influence of physical or mental violence the use of which, thanks to this norm, has virtually no sense’121.

Y.A. Lyakhov also believes that the provision of Sec. 1 Part 2 Article 75 of the Criminal Procedure Code of the Russian Federation is specifically aimed at eliminating illegal methods of interrogating the accused and suspects. The legislator reasonably supposed that in the presence of a legal counsel chosen by the accused or a suspect investigating authorities would not ‘beat’ the evidence they needed out of the persons being interrogated. It is quite another thing when a legal counselor is appointed, invited by the investigator or the inquirer. It is no secret that there are pliable, friendly to investigators, legal counselors who are, as a rule, invited in such cases. It is they who help investigators and inquirers bypass bans on inadmissible evidence. As a result, investigators and inquirers instead of a serious verification of the testimony of the accused and suspects try to ‘solidify’ them, create the conditions under which the ones under interrogation will not abandon these testimonies. The inferiority of such investigations and the damage they cause are obvious. This all is due to the fact that, according to Article 52 of the Code of Criminal Procedure of the RF, the refusal of the accused and the suspect from a legal representation in all cases is not mandatory for an inquirer, an investigator and the court122.

Very often, when considering the inadmissibility of evidence, Russian researchers turn to the US approach to this issue (the rule of ‘fruit of the poisonous tree’, ‘Miranda rights’, etc.).

119Lazareva V.A. The evidence in criminal proceedings: study pract. guide. - M.: Higher Education, 2009. - 344 p. P.

170- 172.

120Boykov A.D. The new Criminal Procedure Code of Russia and issues of crime control // Criminal Law. 2002. №3.

P.65; Kussmaul R. Discriminatory provisions of the new Criminal Procedure Code // Russian justice. 2002. №9. P.32; Bykov V.M. Sitnikova T.Y. The grounds and procedure for declaring evidence inadmissible according to the Criminal Procedure Code of the Russian Federation // Jurisprudence. 2004. №5. P. 142 - 150.

121Smirnov A.V., Kalinovskiy K.B. Commentary on the Criminal Procedure Code of the Russian Federation / under gen. ed. A.V. Smirnov. 2nd ed., Ext. and rev. St.Pb., 2004. P. 216.

122Lyakhov Y.A. Priorities in criminal-procedural law-making// State and law. 2010. №8. P. 46.

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Indeed, in the Anglo-Saxon system of case-law, all these rules are important and may be to a certain extent useful for the Russian legal system, although even in the US there are certain exceptions to all of these rules 123.

The procedures of declaring evidence inadmissible require further development. As it is rightly noted by E.V. Selina, ‘the regulation of pre-trial proceedings lacks a mechanism for declaring evidence inadmissible’124. There are problematic issues in the regulation of the mechanism for declaring evidence inadmissible in court proceedings as well.

According to Article 88 of the Code of Criminal Procedure of the RF, motions for declaring evidence inadmissible may be filed with the subjects conducting the criminal proceedings by the suspect and the accused, and their legal counsel and legal representative as well. Apparently, the same right should be granted to the victim, the civil plaintiff and the defendant, and their representatives.

The procedure of declaring evidence inadmissible through issuing relevant decisions by subjects conducting criminal proceedings should begin at the stage of initiating a criminal case125, continue at the preliminary investigation stage and further – at judicial stages of criminal proceedings.

It is assumed that during preliminary investigation the investigator, or the inquirer, has all procedural possibilities for collecting new evidence in substitution for inadmissible one. Exclusion of inadmissible evidence from the process of proving during the preliminary investigation will allow the person producing the investigation to take timely measures to replenish the lost evidence by obtaining new evidence, to have a correct idea about the volume of the collected evidence, and to decide on their adequacy for making a decision in a criminal case. In this case, inadmissible, in their opinion, evidence should remain in the criminal case file, because when further considering the case, the subjects conducting criminal proceedings may re-examine the issue of declaring the excluded evidence admissible126.

We also believe that the prosecutor, the head of the investigative agency, the head of investigation unit, the head of the inquiry agency should be entitled, in the exercise of prosecutorial supervision and institutional control, to make a decision on declaring faulty evidence in a criminal case inadmissible.

123Shcherbakov S.V. Exceptions to the rule on the inadmissibility of evidence in criminal proceedings in the USA. Legal reference system ‘ConsultantPlus’.

124Selina E.V. The admissibility of evidence and judicial discretion in criminal proceedings // State and Law. 2009,

№8. P.31.

125Bragin E.A. The procedure and legal consequences of declaring evidence inadmissible in Russian criminal proceedings. Ab. diss. for Cand. Jurid. Sc. Chelyabinsk, 2003. P. 16.

126The resolution of the Plenum of the Supreme Court of March 5, 2004 №1 ‘On the application of norms of the Criminal Procedure Code of the Russian Federation by courts’ / Rossiyskaya Gazeta. 2004. March 25.

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The question of separating the evidence into admissible and inadmissible is to be addressed, as the main question, at the stage of listing a trial during the preliminary hearing. Moreover, the approach to this separation should be responsible not only in criminal cases heard by a jury, but also in all other cases heard by the ordinary court.

When hearing a criminal case on the merits, the court may the question of declaring evidence inadmissible again: the parties may file this petition at any time of court proceedings. In practice, this creates a certain chaos: the presiding judge in the jury court has to decide the question of evidence admissibility behind the doors closed for the jury; in regular proceedings the court, as a rule, immediately after receiving such motion (usually written) retires to the chambers and makes a decision as an individual ruling, and quite often, refusing to find evidence inadmissible, the court applies the following wording: the decision on the evidence being admissible or inadmissible will be given by the court in the sentence upon examining all the circumstances of the case.

In theoretical research the question related to the time of making the decision on declaring evidence inadmissible is debatable. For example, V.V. Zolotyh at his time believed that the issue was to be resolved before adjudicating the sentence in the case127. But there was an opinion that the court was able to rule on the recognition of evidence inadmissible only in the sentence128.

We agree with V.M. Bykov and T.Y. Sitnikova saying that the court may declare evidence inadmissible both upon its own initiative or at the request of the parties to exclude the evidence obtained in violation of the Code of Criminal Procedure of the RF, and during the trial, and when determining the sentence129.

In Krasnoyarsk Territory in the criminal case of R.130, who was accused of accepting bribes, forgery and abuse of authority, at each of the seven sessions of the court hearing, the legal counsel of the accused filed up to three written motions to declare evidence inadmissible. Each time the judge responsibly left for the chambers and made a reasoned ruling with regard to each motion in which he either declared evidence admissible or set aside such decision for after interrogating witnesses, investigators, operational staff, etc.

After the interrogation of these persons, the judge again retired to the chambers to resolve on the motions filed and, as a rule, found in favour of declaring them admissible or ruled as follows: the question of the admissibility of evidence is to be addressed at the stage of sentencing.

127Zolotyh V.V. Examination of evidence admissibility in criminal proceedings. M., 1999, p.262.

128Sokolov A. The procedure for admission of invalid evidence in a court of law // Russian justice. 1994. №10. P.15; Tenchev E., Kuzmina O.V. Objective truth and the jury trial // State and law. 1994. №11. P.134; etc.

129Bykov V.M. Sitnikova T.Y. The grounds and procedure for declaring evidence inadmissible according to the

Criminal Procedure Code of the Russian Federation // Jurisprudence. 2004. №5. P. 150.

130Criminal case №17-19. Kan City Court of Krasnoyarsk Territory Archives, 2012.

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On the surface everything looked immaculate: the judge immediately responded to a motion, left for the chambers, took the decision to clarify the additional circumstances related to the implementation of procedures of proving the case during the preliminary investigation, ruled on the admissibility of evidence in a separate judgment.

However, in the opinion of the defense, it all seemed like ‘a rescue operation’ on the judges’ part to keep at any cost the evidence produced in the preliminary investigation. And, each time when the evidence was found admissible, all participants in the proceedings understood that by doing so the judge would have to eventually take all this evidence into account when determining a sentence.

In our opinion, considering motions to declare evidence inadmissible filed by parties should be as follows: if the parties during criminal proceedings file a motion to declare any evidence inadmissible (including those which the court found admissible at the preliminary hearing – article 235 of the Code of Criminal Procedure of the RF), the court does not examine the evidence, it collects all motions of the inadmissibility of evidence and addresses them on the merits in the end of the trial in the chambers in the form of a ruling. Moreover, the court may take additional judicial actions to resolve the issue of the admissibility or inadmissibility of evidence referred to in the motions. If evidence is found admissible, they are studied in the end of the trial. And, when determining the sentence for the case, the court may on its own initiative declare any evidence inadmissible, even the evidence found admissible at an earlier stage.

The issue of evidence admissibility is of particular relevance when proving applies the results obtained when carrying out the operational-search activity131.

For example, according to I.L. Petruhin, ‘it is not operational data themselves, and but the information enclosed in procedural form based on them, or obtained through them, that may be

131 Zazhitsky V.I. On the application of operational-search/immediate-search activity/criminal intelligence/ operational and search activities findings in proof // State and law. 2010. №7. P.61-71; Polyakov M.P. The concept of criminal procedure interpretation of operational-search activity/criminal intelligence findings // State and law. 2005. №11. P.47-51; Baskov V.I. Operational-search activity/criminal intelligence. Study guide. M., 1997; Popov, N.M. Operational investigation support of pre-trial preparation in Russian criminal proceedings // Ab. diss. for Cand. Jurid. Sc. Nizhniy Novgorod, 1997; Bednyakov D.I. Non-procedural information and investigation of crimes. M., 1991; Shumilov A.Y. The origins of criminal investigative law. M., 1998; Ovchinskiy S.S. Operational-search / information. M., 2000; Meshkov V.M. Operational-search tactics of legalizing the information obtained during the preliminary investigation. M., 1999; Polyakov M.P. The application of operational-search findings in proof // International research and application conference ‘The Criminal Procedure Code of the Russian Federation: the year of law enforcement and teaching’ proceedings. M., 2004; Znikin V.K. Operational-search activity as a system of obtaining and gathering criminal procedure evidence. Study guide. Kemerovo, 2000; Kotukhov M.P. The conversion of operational-search activity findings into evidence. Ab. diss. for Cand. Jurid. Sciences. M., 2002; Dolya E.A. Developing evidence on the basis of operational-search activity. M., 2009; Demidov I.F. The value of operational and search activities for criminal proceedings // Judicial reform and criminal justice issues. Collection of academic papers. M., 1995; Zakhartsev S.I., Rokhlin V.I. Legal regulation of applying operational-search findings in foreign countries // Jurisprudence. 2004. №2. P. 111-122. /.

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evidence in the case’; ‘operational data processed through the criminal procedure and therefore ceasing to be operational may be used as evidence’132.

E.A. Dolya133, S.A. Shaifer134, etc. agree with I.L. Petruhin.

V.I. Zazhitskiy, who believes that evidence is operational data incorporated into the criminal case135, has a different position.

Russian legislation and practice currently has a balanced approach, which prevails, to recognizing the admissibility of evidence obtained on the basis of the operational-search activities; before becoming evidentiary, corresponding to all the canons of evidence accepted in criminal proceedings, operational-search information is to go through certain procedures of legalization.

This research has found that evidence obtained under the following circumstances was most commonly declared inadmissible:

-as a result of the investigation held prior to the initiation of a criminal case or accepting it to processing (except those authorized by the Code of Criminal Procedure of the RF);

-with a violation of the procedure for investigative actions: interrogation of the perpetrator, as a witness; non-receipt of signed confirmation from witnesses, victims, the expert, the interpreter of them being informed of criminal liability under Art. 307 of the Criminal Code of the RF, and for witnesses and victims under Art. 308 of the Criminal Code of the RF as well; participation in investigative actions of one witness or bringing persons involved as witnesses; gross violations of the rules of performing records of investigative actions (no date specified, non-stipulated corrections, additional notes, etc.); gross violations of the procedure for investigation, etc.;

-with the violation of the procedure for the relations of investigators with the relevant agencies of other states, etc.

During our research, we have not encountered a single case of the court declaring the following to be substantive violations of the criminal procedural law:

-failure to serve the persons involved with copies of the records of procedural documents when such serving is provided for by the law, notices of the termination of criminal proceedings;

-a violation of the procedure of call to the interrogation of a suspect, a defendant, a witness, a victim;

132Petruhin I.L. Privacy (the man and power). - M.: The Institute of State and Law of the Russian Academy of Sciences, 1998. P. 56-58.

133Dolya E.A. The application of operational-search findings in proof. M., 1996. P.66-72; Dolya E.A. The application of operational-search findings in proof in criminal cases // Russian justice. 1995. №9. P.57-59.

134Shaifer S.A. The use of non-procedural cognitive activities in proving the criminal case // State and Law. 1997. №9. P. 57-59.

135Zazhitskiy V.I. The relation of operational-search and criminal procedure activities in Russian legislation // Russian justice. 1996. №4. P. 51-52.

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- a violation of the requirements of the Code of Criminal Procedure of the RF with regard to the obligation to provide clarifications and observe the rights of persons involved in the case136.

The Code of Criminal Procedure of the RF does not define the notion of ‘substantive violations of the Code of Criminal Procedure of the Russian Federation’, but this does not mean that it is impossible to talk about the substantiveness of procedural violations.

The public prosecutor, according to Sec 15 part 2 article 37 of the Code of Criminal Procedure of the RF, may refer a criminal case to the investigator with instructions for further investigation. In this case, having received a case with an indictment conclusion from the investigator, he may refer it back to the investigator for additional investigation or redrawing the indictment and eliminating the observed shortcomings with his written instructions (p.3 Part 1 Article 221 of the Criminal Procedure Code of the Russian Federation). That is, in our opinion, it is the substantive violations of the Code of Criminal Procedure of the RF which the prosecutor revealed (particularly substantive ones, not any) that will be included in the notion of

‘shortcoming’ of the case investigated.

At the same time, having received the case with the indictment from the investigator, according to article 226 of the Code of Criminal Procedure of the RF, if there are substantial violations of the Code of Criminal Procedure of the RF, the prosecutor has the power to refer the criminal case to the investigator for the preliminary investigation.

During the trial of a criminal case the court of the first and second instances, when it detects both substantive, and minor violations of the criminal procedure law has, within the powers granted to it, either correct these violations and make a final decision in the criminal case (unlike previously, it may not refer the case for further investigation – Articles 254, 302, 322, 350, 38915 of the Code of Criminal Procedure of the RF), or refer the criminal case to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the RF.

When considering a criminal case, the appeal, cassation, supervising instances may establish substantive violations of the criminal procedural law, which will be the grounds for reversal or revision of the judgment and other court rulings (Articles 389-15, 401-15, 412-9 of the Code of Criminal Procedure of the RF).

Furthermore, the court is entitled to, when the criminal case trial identifies violations of the rights and freedoms of citizens and other violations of the law committed during the inquiry, preliminary investigation or the criminal case hearing by the lower court, make a particular decision or ruling to draw the attention of the organizations and officials to such circumstances

136 Appendix №1.

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and violations of the law requiring certain steps to be taken (part 4 Article 29 of the Code of Criminal Procedure of the RF).

Errors related to incorrect application of the criminal law

Criminal procedural activity is largely related to the correct application of the substantive (criminal) law137 and non-violation of the prohibitions set forth for the subjects of the Criminal Code of the RF conducting criminal proceedings.

33.3% of the judges, 27.8% of prosecutors, 20,9% of lawyers surveyed name this type of error to be the most common138.

Investigative and judicial errors related to incorrect application of the criminal law are as follows:

-non-application of the norms of the Criminal Code of the RF, which are subject to the application, by investigative agencies;

-application of the norm which is not proper to be applied;

-misinterpretation of the law, contrary to its exact meaning.

It is good to bear in mind that among the criminal law norms, there are norms with socalled blanket disposition, which does not define all the elements of a crime. For their establishment it is necessary to refer to the legislative or other normative acts of other branches of law.

Most norms of Chapter 22 of the Criminal Code of the Russian Federation139, a number of norms of other chapters of the Criminal Code of the Russian Federation are blanket ones.

V.N. Kudryavtsev says that one of the stages of applying a criminal law norm is deciding which criminal law norm stipulates the crime committed and securing the decision in a criminal procedure act. This is what qualification of the act is140.

Other authors give a slightly different definition of qualification. For example, B.A. Kurinov defined qualification as a process of establishing the equivalence of a specific case to the features of an offense set forth in a norm of the Special Part of the Criminal Code141.

137On the relation of criminal procedure proof and criminal legal qualification see: Barabash A.S. The essence of criminal proceedings and their role in establishing the responsibility of the offender - Krasnoyarsk: Krasnoyar. St. Agrarian University Publishing House, 1997. P.60-63.

138Appendix №44.

139Gorelik A.S., Shyshko I.V., Hlupina G.N. Economic crimes and crimes violating the interests of commercial and other organizations / A.S. Gorelik, I.V. Shyshko, G.N. Hlupina. - Krasnoyarsk: Krasnoyar. St. Agrarian University Publishing House, 1998. P.8; Lopashenko N.A. Issues of economic crimes classification / N.A. Lopashenko. Saratov. Publishing House of Saratov State University, 1997, p. 8.

140Kudryavtsev V.N. The general theory of crimes classification / V.N. Kudryavtsev. - M.: Jurid. Lit., 1972. P.18.

141Kurinov B.A. Scientific foundation of crimes classification / B.A. Kurinov. - M.: MSU Publishing House, 1976. - P. 7.

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Qualification is also defined as establishing an exact match (equivalence) of an act committed (action or omission) to all, and to the full extent, component elements of a crime under such provision of the Special and, as appropriate General, Part of the Criminal Code142. In other words, the latter may give rise to an idea of qualification as a process of mainly applying the Special Part. However, we think that incorrect application of the criminal law (application of an inapplicable law) relates to almost all the provisions of the Criminal Code of the RF.

Investigative and judicial errors which occur due to incorrect application of the criminal law may be classified in accordance with the structure of the Criminal Code of Criminal Procedure of the RF.

1. Errors related to incorrect interpretation of the criminal law effect in time and space – Ch. 2 of the Criminal Code of the RF.

For example, the issues related to the correct application of the rule of retroactivity of the criminal law enshrined in Art. 10 of the Criminal Code of the RF are difficult for law enforcers.

2.Errors related to incorrect interpretation of cumulative crime, repetition of crimes – Ch. 3 of the Criminal Code of the RF.

3.Errors related to wrong resolution of questions concerning the age when criminal responsibility appear, incapacity and criminal liability of persons with mental disorders not excluding sanity – Chapter 4 of the Criminal Code of the RF.

4.Errors related to incorrect establishment of the form of guilt for the crime committed –

Chapter 5 of the Criminal Code of the RF.

5.Errors related to incorrect determination of a committed crime and an inchoate crime, i.e. preparation for a crime and an attempted crime, voluntary abandonment of a crime – Chapter 6 of Criminal Code of the RF.

6.Errors related to incorrect determination of criminal complicity, an excessive act of a perpetrator – Chapter 7 of the Criminal Code of the RF.

Our study shows that it is particularly difficult for practitioners to distinguish between crimes committed with preliminary conspiracy by a group of persons, by an organized group or a criminal association.

7.Errors related to incorrect determination of the circumstances excluding criminality of an act – Chapter 8 of the Criminal Code of the RF (justifiable self-defense, causing harm when arresting a perpetrator, extreme necessity, physical or mental coercion, reasonable risk, execution of superior orders).

142 Criminal law of Russia. Special part: textbook / Ch. Ed. prof. B.V. Zdravomyslov. - M.: Jurist, 1996. P. 12.

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8. Other mistakes in qualifying socially dangerous acts143.

Given that correct qualification issues are the subject of criminal law research of jurists specializing in criminal law, we shall only mention the most common error in qualifying, in some cases committed by the investigator deliberately, i.e. ‘overstating’ the qualification of an act.

The first thing to mention is that the qualification of a criminal offense the investigator provides is always preliminary. It may be corrected by the court (the judge) at further stages of criminal proceedings of the case.

However, the existing rule of ‘prohibition to reverse for a more serious one’ when requalifying a criminal offense gives rise to the appearance of investigative errors, whose correction after the prosecutor approving the indictment becomes impossible without referring the criminal case for further investigation. If this happens in court, the court now has the right to return a criminal case to the prosecutor for the obstacles to its consideration to be removed.

The practicality and value of this rule is that it provides the accused with the right to defence, since in case of a substantial revision of the charges (both in volume and qualifying the act as a more severe crime) the accused is left not prepared for the defence.

Law enforcement officials in an effort to hedge against having a case referred to them for further investigation widely apply, when classifying the charges during investigation and inquiry, the method of so-called ‘excessive qualification’, i.e. in cases where a criminal offense is difficult to be qualified, just to be on the safe side, they qualify it as a more serious crime according to an article (or part of an article) of the Criminal Code of the RF, providing for all the qualifying circumstances of the act and a maximum sentence as a penalty, while arguing that be the charges not confirmed, the evidence insufficient, the testimony of the persons involved in the case changed, etc., the court (he judge) is always able to reclassify the crime towards mitigating the qualification and punishment therefor without the case being referred back to the prosecutor.

This practice artificially creates conditions for investigative errors to appear in a criminal case, has adverse criminal procedural consequences for the accused which are primarily expressed in the fact that qualification of his actions as a more serious crime in accordance of an article (of part of an article) of the criminal law may result in the application of the most stringent preventive restrictive measure of detention.

143 Writing their texts, authors of textbooks on criminal law and commentary to the Criminal Code of the Russian Federation, as a rule, adhere to the logic preset by the structure of the Criminal Code of the RF and structure the content of their texts so as to prevent the law enforcer from committing an error. See, for example: Criminal Law. General part: textbook / ed. A.N. Tarbagaeva. Moscow: Prospect, 2016. P. 441-445; Criminal law. Special part: textbook / ed. I.V. Shyshko. Moscow: Prospect, 2016. P. 742-747.