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This error may also be considered as an abuse of the right by the subjects conducting proceedings, and under certain circumstances, this situation may not be a mistake, but a crime of an official.

The most adverse effects on the human, society and state are related to a miscarriage of justice when, administering justice on criminal cases on behalf of the Russian Federation, the court illegally convicts an innocent person and determines an excessively severe sentence in accordance with an article (section) of the Criminal Code of Procedure of the RF and not a lenient sentence in accordance with an article (section) of the Criminal Code of Procedure of the RF which is to applied to him; determines an excessively severe sentence, particularly when it is imprisonment; illegally acquits a guilty person – completely or with respect to the sentence or illegally applies a more ‘lenient’ article (section) of the Criminal Code of Procedure of the RF and not the ‘serious’ article (section) of the Criminal Code of Procedure of the RF which is to be applied to him; determines a sentence which is too lenient.

Thus, the fundamental mistakes identified herein require a greater attention from scholars and practitioners in order to minimize the risk of investigative and judicial errors.

Errors of the investigator, the prosecutor may be the cause of judicial errors in a criminal case171.

The structure of errors may be graded as follows.

1.Judicial errors the appearance of which in a criminal case could neither objectively nor subjectively be affected by the investigator or the prosecutor (for example, a violation of the secrecy of the chambers, errors in drafting the sentence, unfair sentencing, etc.).

2.Judicial errors the appearance of which in a criminal case was caused by the investigator, the prosecutor. The judge was objectively able to avoid such errors, but for different reasons (rush, negligence, bad faith, superficial approach to the study of the case and evidence analysis, etc.) did

not avoid them during the trial, with these errors ‘with the serve of’ the investigator, the prosecutor becoming judicial errors.

3. Judicial errors the appearance of which in a criminal case was caused by the errors of the investigator, the prosecutor, but when hearing the criminal case in court, the judge had no objective way to avoid them: they were established at the revision stages of the criminal proceedings (e.g., the investigator ignored the statement of the suspect that illegal methods were applied to him and incriminated himself with regard to some criminal act elements. The judge received a criminal case from the public prosecutor for criminal proceedings, where all the episodes were confirmed in a proper procedural order by a variety of evidence, and the accused

171 See: Nazarov A.D. The effect of investigative errors on court errors. - St.Pb.: ‘Legal Center Press’ Publishing House, 2003. P. 24-116.

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during the trial did not make any statements about the application violence to him. It is only in the appellate, cassation or supervising complaints that the convicted again began to assert selfincrimination and the reasons therefor).

This is a complex manifold structure of errors in criminal proceedings. Within this structure, developed in this research, further on we consider all conceptual issues related to the study of the phenomenon of investigative and judicial errors and the criminal procedural mechanism for their detection, correction and prevention.

§5. Causes of Errors in Criminal Proceedings

This study aspires to minimize errors being committed in criminal procedure activity and for this it is necessary to consider the causes of these errors172. Jurists whose scientific works were related to the quality issues of preliminary investigation, its shortcomings, violations of legitimacy, have always addressed the questions of the causes of the low quality of investigation, the conditions contributing to these shortcomings, violations of laws, etc.

The causes of errors, especially judicial errors, were discussed by S.A. Pashin, one of the authors of the contemporary judicial reform in Russia and initiators of introducing jury trials. According to him, in the Russian Federation the judicial administration is implementing the authoritarian personnel policy which makes a judge dependent, primarily, on the presiding judge. It is only possible to rely on inter-judiciary error detection mechanisms, i.e. the revision of sentences by higher authorities, upon the condition of the independence of judges, their professional, moral, and cultural competence. Ideally, the court should be a tool for civil society, not the state. These conditions are not fulfilled in Russia, where the court is a power hierarchy. There are no other effective mechanisms for identifying and correcting judicial errors; judicial review is not reliable and selective. A small number of judicial errors made in Russian are corrected thanks to the perseverance of persons involved, efforts of human rights defenders and the rulings of the European Court of Human Rights173.

V.I. Vlasov has a different approach to considering the causes of investigative errors specifying the following:

172In our earlier works, we also addressed and studied the causes of errors in criminal proceedings, first of all, the causes of investigative errors. See: Nazarov A.D. Investigative errors at pre-trial stages of criminal proceedings; Nazarov A.D. The effect of investigative errors on judicial errors; Nazarov A.D. The causes of investigative errors // Issues of criminal law and procedure in the context of the legal reform. Krasnoyarsk, 1999, p. 61-71. The sources of investigative and judicial errors are addressed in a number of works by well-known jurists. See, for example: Kitayev N.N. Unjust judgments awarding capital punishment: System analysis of errors committed. – St.Pb.: Publishing house ‘Legal Center Press’, 2004. - 390 p.; Churilov Y.Y. World History of miscarriage of justice / Y.Y. Churilov. - Rostov n/D: Phoenix, 2012. - 186 p.

173See: Pashin S.A. Formation of justice. M., 2011. P. 339, 350.

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a)a low level of professional qualities of the investigator;

b)a lack of adequate political, moral qualities, as well as some special ones necessary for the job, of an investigator, their insufficient development;

c)organizational deficiencies, the investigator being overloaded with work.

In addition, he specifies the conditions favourable for committing investigative errors:

-shortcomings in the implementation of the public prosecutor's supervision;

-shortcomings of legal representative participation in preliminary investigation174. However, this is only a quick look at the causes of the complex problem of investigative

errors in criminal proceedings.

Lots of causes, with each of them individually being certainly correct, are defined by L.D. Kalinkina and A.A. Shirvanov, who studied substantive violations of the criminal procedural law175.

In our opinion, the most complete, logical and scientifically reasoned characteristic of the causes of investigative errors can be found in the research carried out in the 80s of the last century by scientists-processualists of the Research Institute of the General Prosecutor's Office of the

USSR, who ranked all the diversity of these causes through the scheme ‘the case – the investigator

– the investigative establishment’176:

the immediate causes characterizing the defects in the investigation of specific cases (the first level of causes);

the causes of investigative errors related to the activities of the investigator: the personality of the investigator (subjective causes) and the conditions in which the activity is performed (objective reasons). These subjective and objective causes comprise the second level of causes, or

‘causes of the causes of the first level’;

factors determining the causes of the first and second levels and related to the conditions of preliminary investigation activities as a whole in Russia (the third level of causes).

The classification of investigative error causes through the scheme ‘the case – the investigator – the investigative establishment’ allows us to deeply examine them and, most importantly, provide scientific rationale for recommendations on how to neutralize these causes.

The study of the causes of investigative errors carried out in the late 80s - early 90s by the Research Institute of the General Prosecutor's Office of the USSR has not lost its relevance.

174Vlasov V.I. Investigation of crimes. Quality issues. Saratov, 1988, pp. 97, 113.

175Kalinkin L.D. Significant violations of the criminal procedural law and their distinction from insignificant ones: dis. for Cand. Jurid. Sciences. Kazan 1981: P. ; Shirvanov A.A. Significant violations of the criminal procedure law as the grounds of returning cases for further investigation: dis. for Cand. Jurid. Sc. M., 1999. P. 139.

176Solovyev A.B. The causes of investigative errors / Issues of strengthening legitimacy and eliminating investigation errors in criminal proceedings. Collection of academic papers. M., 1988. P.28-36.

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Moreover, through the same scheme ‘the case – the investigator – the investigative establishment’ one can and should, in our view, examine and analyze the causes of miscarriages of justice.

A figural characteristic of the situation in the country where investigative establishment and judicial system are functioning, given by A.B. Solovyev, M.E. Tokareva, A.G. Haliulin, N.A.

Yakubovich at the end of the last century, is still relevant: ‘One can not ignore that in recent years, due to changes in the socio-economic system, property redistribution, poverty affecting a significant part of the population, the criminal situation in the country has seriously changed. These years have seen the appearance of new, representing a significant social danger, crimes in the economy and the banking sector, which are difficult for detection and investigation, the rise of corruption and organized crime, the widespread use of weapons and technical facilities in criminal activities, the prevalence of violence against the participants of criminal proceedings’177.

The development and complexity of the structure of crime, multiple increase of professionalism, technical equipment, armament of criminals and their communities have only recently began to receive a relatively adequate reaction from the state.

In Russia, a new police, including military, have been established; the Federal Drug Control Service and the Interior Ministry Migration Service have been abolished and transferred to the authority of the Ministry of Internal Affairs; the National Guard has been formed; the Investigative Committee of the Russian Federation, a new investigative agency out of the prosecutor's office structure, is functioning. Among the novelties being discussed, there are consistent steps taken towards establishing a single investigative agency in Russia; the reform of the Federal Security Service of Russia is being prepared: it is assumed to establish the Security Ministry, including, in addition to the FSB structures, the Foreign Intelligence Service and Federal Guard Service. Residential, office, material-and-technical facilities and personnel resources of courts and law enforcement agencies are improving.

Nevertheless, as a whole, it is impossible to declare the work of courts and law enforcement bodies efficient.

Errors in their work are due to a whole set of circumstances, without finding and neutralizing which one may not hope for significant improvement in the quality and efficiency of preliminary investigation and court hearing of criminal cases.

In the context of a multi-level approach to the analysis of the causes of errors herein, without unnecessary detail, we are going to indicate these causes only paying special attention to those which, in our opinion, deserve such scrutiny, as the complete assessment and analysis of all

177 Solovyev A.B., Tokareva M.E., Haliulin A.G. et al. The legitimacy at pre-trial stages of Russian criminal proceedings. M., 1997. P. 143.

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the causes of investigative and judicial errors are not the subject of this study and deserve a profound scientific development.

‘First level’ – immediate causes of errors characterize flaws in criminal cases.

Failure to conduct or improper conduct of necessary investigation (judicial) or other procedural actions.

Ignoring the requirements of the criminal procedure legislation and forensic recommendations to apply special techniques of investigating to certain types of crimes, investigators do not always verify testimonies on site, subjoin material evidence and documents, properly inspect the scene, conduct initial interrogation of suspects and witnesses, ensure that necessary forensic examinations are conducted in criminal cases, and so forth.

It is worth noting that at the present time almost two-thirds of criminal cases are tried in court through special procedure. Accordingly, there is no judicial investigation of these cases. Thus, it is difficult to check the errors of preliminary investigation, and as a result the latency of investigative errors in cases heard through special procedure is not excluded.

In cases going through judicial investigation, significant participants of criminal proceedings are not always interrogated in court, as recently the court has very often read testimonies of witnesses and victims and data at the preliminary investigation; the parties and the court did not take the initiative to examine the evidence (they are not delivered from physical evidence storage rooms, which is especially often in criminal cases related to illicit trafficking in narcotic drugs), etc.

Significant shortages in planning, organization of criminal investigation in advancement and checking of scenarios.

Unfortunately, like in previous years, a significant number of criminal cases are investigated as follows: ‘surface, devoid of logical connection, inconsistent initial actions; sometimes a kind of rush work when during the day the interrogation records are done by several investigators and inquiry officers, sometimes unnecessary pauses, when for a few days nothing is done in the case; contradictions arising in the case file are not removed in a timely manner; witnesses clearly necessary to be interrogated on the first day are interrogated much later, when they do not remember much, etc.

A contrary scenario of investigation is possible too. As a result of vigorous initial investigative actions or through coincidence, the suspect is identified quickly. It would seem that the investigation is on the direct path to the truth. But at this stage the investigation loses pace and energy, insignificant investigative actions are performed only much later.

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Then, the defendant changes his testimony, new witnesses confirming the alibi appear, new scenarios, previously not considered and no longer verifiable, emerge, with the path of investigation, which first seemed so reliable, turning into quicksand.

The cause of such complications and failures in planning and organization lies in shortcomings of the investigation’178.

The study of court records shows that planning of judicial proceedings has obvious defects, since, quite often, court hearings are repeatedly postponed and adjourned for various reasons, of course, frequently not dependent on the court (work overload of legal representatives, their participating in other proceedings, absence of witnesses, etc.), witnesses are interrogated several times, etc. Nonetheless, precise organization of proceedings in criminal cases would contribute to reducing the number of errors committed by the court.

Failure to correctly assess the evidence collected in the case.

The scientists of the Research Institute of the General Prosecutor's Office of the USSR in their research in the 80s pointed out that ‘the most common error in the assessment of proof, peculiar to more than half of the cases studied, is that conclusions in the case are based on insufficient totality of evidence. Every third case showed examples of underestimating the testimony of the accused, who denied his guilt, and these statements were not properly checked. In every fourth case investigators without any motivation rejected the evidence contrary to their chosen scenario, in every third case the investigation conclusions contradicted the evidence available in the case or were self-contradictory’179.

Unfortunately, after many years, the situation has not changed for better.

The advocacy experience of the author has shown that the modern practice of investigating criminal cases comprises an unacceptable, in our view, algorithm of investigation and the subsequent assessment of the evidence collected in a criminal case.

The testimony the witness, the victim give in court differ from their testimony during the preliminary investigation. As a rule, at the request of the public prosecutor, the court read out testimony given by the mentioned participants during the preliminary investigation. After the announcement the following standard questions are asked: ‘During the preliminary investigation, have you given a written recognizance of criminal liability for perjury? Have you signed the interrogation protocol? Did you then remember better everything which you said to the investigator than you remember it now?’ Having received affirmative answers to these questions, the court bases the conviction on the testimonies of witnesses, victims given at the preliminary investigation, and their testimonies in court are looked at suspiciously.

178Larin A.M. Criminal case investigation. Planning, organization. M., 1970. P. 57-58.

179Solovyev A.B., Tokareva M.E., Haliulin A.G. et al. See above. P. 147.

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If during court hearing the defendant for any reason changes the testimony given at the preliminary investigation, it is most often the case when, without putting much effort into the study of the motivation behind such alteration, the court will refer to this being ‘a way the accused tries to escape criminal responsibility’, will specify that ‘his testimony during the preliminary investigation is confirmed by his voluntary surrender’ (in fact, the very voluntary surrender is seen as evidence – ‘another document’), that ‘confessionary’ statements during the preliminary investigation are given by the accused in the presence of a legal counsel’ (usually, it is an assigned counsel and, unfortunately, there are examples of participation in cases of so-called ‘puppet defence lawyers’ (‘police defence lawyers’), who, unfortunately, often are not present at the interrogation of a suspect at all, but simply issue a defence lawyer writ and make a ‘whole-sale’ signing of resolutions, case records drawn up by the investigator in the criminal case).

Quite often there are problems concerning the assessment of testimonies given by police officers when being interrogated as victims, witnesses: in some cases courts rely on them excessively (for example, in criminal cases related to trafficking in narcotic drugs; in scrutinizing materials related to statements of citizens regarding the use of violence by the police), whereas in other cases the testimony of police officers are categorized as ‘weak’ by the court, believing that the police are persons involved.

Apparently, this is not an exhaustive list of ‘causes of the first level’.

‘The causes of the second level’ are primarily defined by the conditions of the activities of investigators and judges and are either objective or subjective.

Subjective causes, relating to the personality of the investigator and the judge, are directly connected with the investigation and judicial error. Objective causes are related to the investigative and judicial error indirectly, through the investigator and the judge, who in some cases may neutralize the negative impact of these factors and prevent them from becoming a cause of investigative and judicial errors.

The most common objective causes of investigative and judicial errors are the

following.

Investigators and judges considering a significant number of criminal cases simultaneously.

There are different ways to neutralize the effect of this cause of errors. The first, and quite difficult, path (‘extensive’, i.e. associated with quantitative arrangements) in an unstable economic situation in the country is to increase the staff of investigators, inquirers, prosecutors and judges.

Another way (also ‘extensive’) is to reduce the number of criminal cases and materials processed by subjects conducting criminal proceedings. It is possible to achieve such a reduction in various ways:

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-decriminalization of certain socially dangerous acts, including transferring them into the group of administrative offenses, in the category of criminal offenses subject to summary proceedings for these misdemeanors; for certain crimes, introduction of administrative jurisdiction for first-timers, with criminal liability for a repeated offence;

-wide application, especially in pre-trial proceedings, of the institute of termination of criminal cases on non-rehabilitation reasons (provided for in the current legislation – conciliation of parties, active repentance; we also do not exclude a possibility to return to the updated form of reasoning previously used in criminal proceedings, i.e. the termination of criminal proceedings (prosecution) with its transfer to the burlaw court (the rural court, the officer's honor court, the juvenile affairs commission, etc.), transfer of the guilty person on surety, including a wide use of decisions at the discretion of the prosecutor180, etc.);

-extensive use of existing and development of new summary procedures: procedure for the application of compulsory educational measures for minors; procedure for determining the criminal law measures with the exemption from criminal liability; procedure for coercive measures of security181 and so forth.

Unfavorable moral and psychological environment in the investigative team or the court team, the lack of mutual facilitation, mentoring.

Both practitioners and theorists specify this cause, but we do not undertake any attempts to comment on it as the issues of psychology and management of investigative and judicial work are a topic for a different research.

Problems related to the attendance of witnesses, the appointment and conduct of forensic examinations, inspections and audits, payment therefor.

This cause today is not as urgent as in previous years, especially for the court; nevertheless, it still exists.

It should be noted that today there are forensic expert divisions in all departments having investigative units. At first glance, it should create all the necessary conditions for effective and dynamic performance of necessary examinations for criminal cases under investigation conducted by the investigators of relevant departments. But, firstly, not all kinds of examinations can be carried out in the expert divisions of departments with investigative units. Secondly, departmental bias of experts is constantly discussed. In our opinion, the ideal option would be to establish

180Nazarov A.D. The public prosecutor in criminal proceedings of Sweden and Russia / Legal reform and foreign experience: Interuni. Coll. ac. art. / Krasnoyar. St. Univ. Krasnoyarsk, 1997, pp. 140-151; Nazarov A.D. The effect of investigative errors on judicial errors. St.Pb.: ‘Legal Center Press’ Publishing House, 2003. P. 143-145; Konyarova Z.K. The discretion of a prosecutor in criminal proceedings: Monograph. Izhevsk: Detective-inform, 2005. - 119 p.

181For the author's version of such proceedings, see: Nazarov A.D. Fundamental errors in Russian criminal proceedings. Issues of theory and practice. - Saarbrucken, Germany: LAP LAMBERT Academic Publishing GmbH & Co. KG, 2011. P. 164-177.

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extradepartmental highly-specialized Federal Expert Service of Russia with its field offices, which would provide fast and high-quality examinations for all inquirers and investigators, regardless of their affiliation. Moreover, departments with functional investigative units and inquiry teams, of course, should have scientific and technical departments with necessary specialists, who would provide inquirers and investigators assistance it strictly procedural status of a specialist, i.e. giving expert opinions, conducting instant examination of objects related to the crime, at the scene, and conducting other investigative and procedural actions, etc.

Inappropriate working conditions (transport problems, office equipment problems, lack of offices, etc.), scientific organization of labor problems, especially problems related to work of investigators and inquirers.

Indisputably, the working conditions of investigators and judges are constantly improving, which is facilitated, inter alia, by effective activities of the Judicial Department of Russia.

Computerization, and the introduction of Internet technology, is particularly relevant today for effective judicial and investigative activities: computer workstation, enabling to operationally access all the necessary reference and legal systems182, manuals, guidelines, criminal records, etc. (including mobile computer workstation in the car in which the investigator leaves for the scene and for conducting other investigative actions and other procedures); video conferencing183 (where appropriate communication via Skype, etc.) with the participants of criminal procedure, including with colleagues from the operational units, experts and specialists, SMS-writs and so forth.

100% of lawyers, 59% of investigation workers, 44.4% of judges and 38.9% of prosecutors interviewed during the research associated the causes of investigative errors with improper organization of investigative work (‘work for rating’, ‘inhuman treatment of the investigator on the part of his superiors’, ‘lack of clear scientific organization of labor of the investigator’. etc.)184.

Carelessness of the police, the poor quality of execution of individual orders received from investigators, lack of the necessary cooperation with investigators.

The investigators of the MIA, the FSS are members of the staff of these state agencies, which have their own powerful operational units. The departments of the Russian Investigation

182 Mikhailov V.I., Andreev N.D. Some issues of applying the investigator computer workstation // Criminal proceedings: issues of theory, rule-making and law enforcement: Coll. ac. pa. Ryazan: Academy of Law and Management of the FPSR, 2008 vol.3. P. 217-220.

183Brusnitsyn L.V. On the use of video technology in criminal proceedings // State and Law. 2009. №3. P.53-62. Generally, video recording and video conferencing are applied when interviewing children - victims of sexual abuse; when interrogating victims and witnesses, to whom protective measures are applied. According to the metaphorical expression by E.V. Selina, ‘the essence of the unconstraint freedom when evaluating evidence lies in the fact that the system of different kinds of evidence provides for all communication channels recognized as valid by the modern society. Audio and video records are gradually occupying positions appropriate for the modern level of development of scientific and technological means. Investigative activities are being perfected as well’. See: Selina E.V. The admissibility of evidence and judicial discretion in criminal proceedings // State and Law. 2009. №8. P.35.

184Appendix №44.

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Committee do not have their own operational units: IC investigators, when investigating crimes, interact with the operational units of the MIA, the FSB. Of course, the question of the creating their own operational units in the IC of Russia is on the agenda. In our opinion, achievement of effective (including - infallible) results in the detection and investigation of crimes is possible in the case when each department, having an investigative unit, have professional operational units, which, inter alia, effectively interact with each other. Particularly complex criminal cases, in our opinion, should be investigated by an interdepartmental investigatory-operational team.

Shortcomings in the implementation of judicial control at pre-trial stages of the criminal procedure and operational-investigative activity.

Errors in the prosecutor's supervision over the law enforcement in investigation of crimes and operational-search activity.

Shortcomings in the implementation of institutional control on the part of the leaders of investigative and operational agencies, heads of inquiry divisions and investigation units over the organization and the conduct of investigation of criminal cases and operational search actions.

Further on, the study discusses in detail the ways of improving the implementation of judicial supervision, the prosecutorial supervision and institutional control.

It is true that, like it was made in the study of the Research Institute of the General Prosecutor's Office of the USSR in the 80s, we also have to admit that the vast majority of all objective reasons of investigative errors are related to shortcomings and deficiencies in the organization and implementation of the public prosecutor's supervision over, judicial and institutional monitoring of the progress of criminal investigations, as well as judicial and institutional control of and prosecutorial supervision over operational and investigative activities.

It is noted that ‘the main causes of investigative errors are the circumstances pertaining to the personality of the investigator and the judge. It is in their elimination ... that major reserves for increasing the efficiency of investigators lie’185. The above fully applies to the main reasons of judicial errors.

Subjective causes of investigative and judicial errors are, in our opinion, as follows. Lack of essential professional knowledge and working skills of some investigators and

judges.

This is the most common cause of subjective investigative and judicial errors, which is primarily due to serious shortcomings in the organization of training, selection and personnel placement.

185 Solovyev A.B. Tokareva M.E., Haliulin A.G. et al., See above. P. 151 - 152.