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The well-known legal scholar E.P. Ischenko in his book with the original name The Law Reform is ruled by the crime? informatively demonstrated, with reference to the official statistical data:

-insufficient level of education of investigators in Russia (for example, in the Russian Interior Affairs Ministry, about 30% of investigators do not have a degree in law);

-almost 50% of investigators are people who are under 30;

-40% of investigators have less than 3 year professional experience;

-high turnover of investigators is evident186.

An alarming sociological analysis of the staff of investigators and judges in Russia is also given in the study of non-governmental Institute of Law Enforcement Issues at the European University of St. Petersburg187.

The causes of investigative errors were explained through insufficient professional qualifications of the investigator by 61.1% of judges, 60.8% of lawyers, 55.6% of prosecutors participating in the survey; through insufficient experience of professional activity by 61.1% of judges, 50% of prosecutors, investigators 43.4%, and 40.3% of lawyers188.

Neglectful-nihilistic attitude of some investigators and judges to fulfilling the requirements of the criminal procedure law (the desire for procedural oversimplification.

The investigators and judges, who committed investigative and judicial errors, in most cases, treated the requirements contained in the provisions of the Code selectively, opposed the adherence to the norms of the law to their own concepts of ‘practicability’, divided procedural norms into ‘important’, which are to be observed, and ‘less important’, the implementation of which is optional. The above primarily applies to securing the rights and legitimate interests of participants, compliance with the investigative procedure, judicial and other procedural actions, and is manifested in broad interpretation of the grounds for detention, custody, criminal prosecution, etc. The researchers gave great importance to the psychological training of subjects conducting the criminal proceedings to work in conditions of constant high personal responsibility for their work189.

Prosecutorial bias, lack of analytical assessment and arrogance of investigators and judges in making procedural decisions when evaluating evidence.

186Ishchenko E.P. Is the Law Reform run by criminal bosses? M., 2013. P. 122-137.

187Titaev K. Russian investigator: vocation, profession, daily routine: a monograph / K. Titaev, M. Shklyaruk. M.: Norma, 2016. - 192 p.; Volkov V. Russian judges: A sociological study of the profession: monograph / V. Volkov, A. Dmitriev, M. Pozdnyakov, K. Titaev; ed. V. Volkov. M.: Norma, 2016. - 272 p.

188Appendix №44.

189Morschakova T.G. Psychological sources of miscarriages of justice and inner conviction of judges // Efficiency of justice and the problem of eliminating judicial errors / Ed. V.N. Kudryavtsev. V.2. M., 1975.

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Frequently, both scientists and practitioners have to deal with the phenomenon of prosecutorial bias in the criminal procedural activity of judges, prosecutors, investigators and inquirers190. This dangerous phenomenon in the professional activities of officials of the criminal justice authorities in Russia leads to investigative and judicial errors in criminal cases, which distorts the true nature of administration of justice in criminal cases and contradicts the purpose and principles of criminal judicial proceedings.

The President of the Russian Federation’s Message to the Federal Assembly of 2013 suggests refusal of ‘prosecutorial bias in law enforcement and judicial practice’191.

Presented to the State Duma on the initiative of the Investigative Committee of Russia, a bill devoted to the introduction to the Code of Criminal Procedure of the RF of the institute for establishing the objective truth in a criminal case states that ‘when exercising criminal prosecution, the prosecutor, the head of the investigating agency, the investigator, and the head of the investigation unit, and the inquiry officer, are required to maintain objective and impartial, avoiding prosecutorial bias in proving’192.

Generally speaking, prosecutorial bias is investigators, prosecutors and judges ignoring the evidence in favor of the accused, unwilling to check and take into account the defense arguments.

L.A. Voskobitova notes that the essence of the prosecutorial bias lies ‘in an effort to first formulate and then by all means to confirm through the sentence of the court charges which do not meet the requirement of comprehensiveness, completeness and objectivity of the investigation of facts, and therefore do not allow the court correctly apply the provisions of the criminal law and make a fair decision on the case’193. Analyzing Russian and ECtHR case-law, L.A. Voskobitova offers the signs (indicators) which can be applied in criminal cases to reveal prosecutorial bias194.

S.V. Burmagin describes prosecutorial bias as follows: ‘... the adversariality postulate of strict separation between procedural functions is often not respected by Russian judges, who by virtue of their mentality, entrenched habits, and conservative legal consciousness, continue to ‘play into the hands’ of prosecutorial power, are overactive in the process of proving, and seek to confirm the accusation making their own efforts, violating the procedural balance of the parties,

190In criminal procedure practice of Russian we can sometimes see examples of the opposition: ‘prosecutorial bias’

- ‘pro-defense bias’. However, as a rule, these are examples of so-called ‘headline-making’ criminal cases: the famous criminal case ‘Oboronservis’, the criminal case of ‘Kogan’ in Krasnoyarsk etc.

191Rossiyskaya Gazeta, 2012. December 13.

192The bill was introduced to the State Duma by its deputy A.A. Remezkov and posted on the official website of the State Duma.

193Voskobitova L.A. Accusation or prosecutorial bias? / Current issues of criminal proceedings. - 2014, №3. P.458.

194See above. P.458-461.

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forgetting about their objectivity and impartiality, in other words, are still prone to prosecutorial bias’195.

To understand the essence of prosecutorial bias it is important to analyze different manifestations of this phenomenon in the criminal procedural activities of subjects conducting criminal proceedings.

One of the reasons for the formation of prosecutorial bias in the activities of the investigator is the legislator incorporating him in the number of participants of criminal proceedings for the prosecution. But the investigator is, above all, the researcher. His responsibilities include establishing all the circumstances of the crime as they were in reality. He should collect and evaluate evidence, both incriminating and exculpatory, both aggravating and mitigating criminal liability, including being engaged in the research of the circumstances which characterize the accused positively196, i.e. establish the objective truth in the criminal case. Failure to comply with these requirements of the criminal procedure law should be considered as prosecutorial bias in the investigator's activities.

The advocacy and human rights protection experience of the author provides a basis for the hypothesis that investigators quite often turn to accusational scenarios as a basis for the investigation, ignoring others; give ‘excessive’ qualification (‘overstated qualification’) for the act of the accused; when choosing a preventive restrictive measure, they prefer to file a motion for detention of the suspect, or the accused, with the court, ignoring other preventive measures; during investigative and other procedural actions, violate the rights and legitimate interests of the participants in criminal proceedings for the defense and so forth.

Inquisitorial (inquiry) origins of criminal procedure at the pre-trial stage to accommodate prosecutorial bias have made the mission of the defense counsel decorative.

Article 86 Code of Criminal Procedure of the RF states that the defense lawyer is involved in collecting evidence, but the documents submitted by him, objects, etc. will only be attached to a criminal case file and will be evidence in the procedural sense when the will of subjects conducting the criminal proceedings is procedurally shown. Most often, defense lawyers in response to their, to a great extent justified, motions get standard resolutions of investigators on full or partial denial of the petitions: prosecutorial bias in the activities of the preliminary investigation, especially in the modern model of adversariality, does not imply complete, thorough and objective investigation of all the circumstances of the criminal case.

195Burmagin S.V. Separation of prosecutorial and judicial authorities in Russian criminal judicial proceedings: from the judicial reform of 1864 to the present day / Current issues of criminal proceedings. 2014, №5. P. 890.

196Frantsiforov Y.V., Vanin D.V. The function purpose of the investigator’s activity and his powers in adversarial criminal proceedings. M.: Jurlitinform, 2013.; Telighisova S.S. Procedural status of the investigator as a subject of criminal procedure relations and the degree of his procedural autonomy. M.: Jurlitinform, 2012.

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In recent years, using, in principle, a quite effective method of crime control, the operational-investigative activity have been using an instrument of prosecutorial set – a pre-trial agreement on cooperation. Using this instrument in the context of the prosecutorial bias, practitioners seemingly strengthened their positions in proving: obtaining confessions from persons against their ‘associates’ (as the ‘queen of evidence’), quite unproblematic detection of stolen guns and instruments of crime, etc. The positive thing, of course, is that the court sentences in the cases with a pre-trial agreement on cooperation and, in general, sentences made under special procedure are no longer seen by the legislator as prejudicial, while the grounds for vacating the judgment determined under the special procedure are now seen in the preliminary investigation materials not having evidence consistent with the accused agreeing to the charges brought against him (both with respect to the validity and the qualification).

Similar manifestations of prosecutorial bias can be seen in the criminal procedure activity of the head of the investigating agency, the inquirer, the chief of the inquiry unit and inquiry team.

The legislator had great hopes for the strengthening of the procedural positions of institutional control. The redistribution of powers from the prosecutor to the head of the investigative body was conceived as an instant response to all violations permitted by the investigator. But here too, prosecutorial bias related to the fact that the investigator must ‘crack out’ criminal cases (i.e. transfer them to the court with the indictment), as well as, of course, to the investigator’s psychological perception of his mission as a member of the prosecution, who works in close tandem with the operational staff, solves crimes and fights crime (which is true, and important, but not exclusive!), does not allow the departmental chief of the investigator – the head of the investigative agency (due to the status having all the powers of the investigator) – to create a hard barrier against all the errors committed by the investigator. Moreover, the head of the investigative agency, the head of the inquiry unit do not always make full use of the procedural powers granted to them to suppress the manifestations of prosecutorial bias in criminal procedural activities of subordinate investigators, inquirers.

For example, investigators terminate no more than 5% of criminal cases on nonrehabilitating grounds197. At the court hearing 10-14% of cases are terminated on these grounds. No doubt, these cases could have been terminated at the preliminary investigation stage in order not to overload the court, but the notorious rate of the number of criminal cases transferred to the court makes it possible to talk about the prosecutorial bias of the investigator, the head of the investigative agency: the head of the investigative agency applying his procedural powers could have terminates a criminal case, but did not do it.

197 The results of the research work carried out by the author in relation to manifestations of the prosecutorial bias are presented in accordance with the data contained in the second volume of the dissertation ‘Appendices’.

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The prosecutor is also named by the legislator in the number of participants in criminal proceedings for the prosecution. Moreover, in the court of the first instance and appeal instance the status of the public prosecutor is defined with an even more accusatory connotation – the public prosecutor. And this is despite the fact that the prosecutor, as the meaning of the Law on the Prosecutor's Office of the Russian Federation implies, is the guarantor of legitimacy and he should not give preference to the prosecution function at the expense of human right protection function.

Taking into account that the prosecutor is among the participants for the prosecution, the prosecutor's supervision over the investigation, inquiry, and operational-search activities, is also carried out with accusatory bias and does not contribute to highly effective identification, elimination and prevention of errors at the pre-trial stages of criminal proceedings198.

For example, criminal cases, except for cases of private prosecution, are transferred to the court through the prosecutor: he approves indictments, resolutions, decisions. The prosecutor has the right not to approve these final documents of the preliminary investigation and refer criminal cases for further investigation. The prosecutor exercises the right quite rarely – in about 12% of cases: the phenomenon of prosecutorial bias presses the prosecutor to send the case to court. In compliance with Article 237 of the Criminal Procedure Code of the Russian Federation to remove obstacles the prosecutor then gets back up to 10% of criminal cases; in approximately 27% of criminal cases the court changes the qualification of the act incriminated to the defendant for a more lenient one, reduces the amount of charges (termination of criminal prosecution), takes considerable efforts to address the gaps and deficiencies of the preliminary investigation.

The most dangerous consequences of prosecutorial bias, errors, are related to the court activity both at pre-trial and trial stages, and the stage of sentence execution.

According to practitioners, judges approve the vast majority of motions directed to them by investigators: clear prosecutorial bias – ‘a phenomenon which has been consistently denied by the bodies of preliminary investigation, prosecutors and judges’199.

When opting for the strictest preventive measure in the form of detention, the court has turned into a certain record keeper which, sometimes without any good reason, puts a person into custody, prolongs his detention period, forgetting quite often that, in addition to the arrest and detention in custody, there are also home arrest, bail and other preventive measures. Statistical data for the country over the last few years indicate that about 92% of motions from investigators and inquirers on the detention of the suspect, the accused are satisfied by courts in full, and motions from subjects of criminal investigations on the extension of detention of the accused are satisfied

198Paneyakh E.L., Titaev K.D., Volkov V.V., Primakov D.A. Prosecutorial bias in criminal proceedings: the factor of the prosecutor // Analytical essays on law enforcement issues. 2010. March. / Http: www.enforce.spb.ru

199Kolokolov N.A. Prosecutorial bias of the investigation and trial when evaluating violations in the economy //

Criminal Procedure. 2012. №2. P.38.

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in 96% of cases. The recent trend toward the use of house arrest and bail proves once again the fact that prosecutorial relics of arresting the person and detention in custody are squeezed out of the criminal procedural practice rather slowly.

Prosecutorial bias in court activities is also manifested in the formal approach to the consideration of participants’ complaints about actions and omissions, decisions of officials of criminal justice agencies in accordance with Article 125 of the Code: courts uphold only one in every 18-20 complains.

The court mere record keeper again when carrying out the mission entrusted to it by Article 165 of the Code of Criminal Procedure of the RF and the Law of the Russian Federation on Operational-Search Activities: officials of criminal justice agencies have little or no problems (98100% upheld motions) to receive a court order in response to their requests to inspect residences; with regard to search, seizure in housing, seizure of objects from a pawnshop; seizure of property; seizure of objects, documents containing secrets protected by law; seizure of postal and telegraph messages; temporary suspension of the suspect or accused from office; monitoring and recording of telephone and other conversations, obtaining information on interpersonal connections, etc.

It is the adherence to prosecutorial origins in the established model of judicial review at the pre-stage does not allow the parties involved to appeal in accordance with Article 125 of the Code the most important document in the prosecutorial design of preliminary investigation – a resolution on the indictment, which in about 40-45% of cases contains ‘excessive qualification’ specified by the investigator (‘overstated qualification’), which makes it possible to effortlessly obtain a court order on detention, the extension of custody, and later – the penalties associated with imprisonment.

The trial stages of criminal proceedings present various manifestations of prosecutorial

bias.

For example, in cases with a pre-trial agreement (plea bargain), and in other criminal cases specified by the legislator, the logic of prosecutorial bias has led to the widespread use of a special procedure for their consideration when the accused agrees to the charge – up to 70-75% of criminal cases in Russia today are considered by courts according to special procedure. The special procedure of the trial often leads to the concealment of a significant number of pre-trial investigation shortcomings associated with completeness, comprehensiveness and objectivity of proving all the circumstances of the criminal offense, with violations of the provisions of the Constitution and norms of the Code of Criminal Procedure of the RF. Understanding and encouraging the procedure simplified for the court and the prosecutor, the legislator has introduced

‘incentive bonuses’ in the form of a reduction of the upper limit of punishment and exemption from legal costs for the defendant. To some extent, these ‘bonuses’ reduce the risk of such

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fundamental errors in the case as excessive sentence, but mostly they give rise to the justifiable criticism on the part of jurists and practitioners who understand the danger of the harmful accusatory impact of this institute on the accomplishment of the purposes of criminal court proceedings.

Due to the influence of prosecutorial bias in recent years, there have been substantial metamorphoses happening to the institute of the court returning a criminal case to the prosecutor to eliminate obstacles to its consideration. The crisis of preliminary investigation (prosecutorial bias, unprofessionalism, unbalanced mechanisms of procedural regulation of pre-trial stages, failures in judicial review, prosecutorial supervision, and institutional control, etc.) allowed a certain part of scientists and practitioners to make serious steps towards, basically, restoration of further investigation.

Specifically, the Ruling of the Constitutional Court of the Russian Federation №16-2 of July 2, 2013, authorized the courts to direct the criminal case to the prosecutor for a new indictment of the accused with charges for a more serious crime; the legislator subsequently legalized this position of the Constitutional Court of the RF in Article 237 of the Code of Criminal Procedure of the RF.

Prosecutorial bias is also evident in the tendency of criminal procedure policy to scale back the institutions of society representatives participation and the collective administration of justice in criminal cases: the first to disappear were the institutions of peoples' assessors (lay judges), public defense representatives and prosecutors for the community, the transfer of the case to the burlaw court, and the convicted – to the attention and guidance of the labor collective, and now there is a clear trend to more single-judge hearings of criminal cases and a significant reduction in the jurisdiction of the jury200.

Single-judge hearing of criminal cases, by its definition and for many other obvious reasons, does not contribute to reducing the number of errors.

Prosecutors, presenting charges in front of lay people on behalf of the state, have appeared not to be ready to the professional level of work in the jury court: in the ordinary court, having no investigation experience, not having properly studied the materials of the criminal case, and not having prepared for a highly professional activity, prosecutors are prone to committing significant errors, being often guided not by the logic of proof but by the ideology of prosecutorial bias; in the jury court, this all is further worsened by shortages in the knowledge of the jury psychology, in public speaking and oratory skills, etc.

200 It is, of course, worth noting that recently the Constitutional Court of the RF confirmed the right of women for their specific criminal cases to be tried by a jury, and since 2018 ‘reduced juries’ will appear in district courts and courts equivalent thereto to deal with certain categories of criminal cases.

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Both now and always the best indicator of how repressive the court is and whether it has prosecutorial bias has been the number of judgments of acquittal, issued by courts201, the number of criminal cases terminated by the court on non-rehabilitating grounds. In most cases, an acquittal, the termination of criminal proceedings and criminal prosecution eliminate the risk of fundamental errors.

A tiny percentage of acquittal judgments delivered by courts relevant for the time of beginning the judicial reform could not deceive the public into believing that there were no investigative and judicial errors and the dock always got persons guilty of committing crimes. The number of the persons acquitted by the court in the RSFSR in 1990 amounted to 1708. If we compare this figure with the data on persons brought to trial (approximately 540,000 people), it becomes clear that the court rehabilitated 0.32% of citizens caught in the machine of Soviet justice202.

The percentage of rehabilitative judgments has remained virtually unchanged from the prereform era. It is worth to be noted that jury acquittals are delivered more often. The figure of 1315% is the average rate of jury acquittals in Russian, with almost 100% of them getting a prosecutor’s resolution leading to these sentences being reversed by the Supreme Court of the

Russian Federation and the criminal cases considered again in a new jury. Repeated acquittals are delivered by the new jury on average in every second case: in other cases the second verdict is usually the verdict of guilty.

The new appeal, cassation and supervision procedures, having full effect from 1 January 2013, were designed by the legislator as an effective mechanism of quality and fair administration of criminal justice. However, the prosecutorial bias still dominates the mechanisms of ‘new’ appeal, cassation and supervision: in the conveyor conditions in which these procedures operate, appeal, cassation and supervision (with the legislative shortages in the mechanism of legal regulation of these institutions) may not completely guarantee rectification of errors in criminal cases.

When executing sentences, courts often take the ‘accusatory opposition’ to the person: the convicted is more likely to die in ‘a government facility’ than be released due to his severe illness by the court; many problems arise when transferring convicts from prison labor camps to penal settlements, concerning their parole and amending their punishment to a more lenient one, etc.

To liberate the prosecutor, the head of the investigating agency, the investigator, the chief of investigation unit and the inquiry unit, the inquirer from prosecutorial bias, it is necessary, first

201Churilov Y.Y. Current issues of the judgment of acquittal in Russian criminal proceedings. M.: Wolters Kluwer, 2010.

202The concept of the judicial reform in the Russian Federation. P. 11

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of all, to separate them from the participants to the proceedings for the prosecution; to define them in the Law as participants representing the interests of the state in criminal proceedings; not to name the prosecutor the public prosecutor in court, i.e. to only leave him the procedural status of the prosecutor.

With a genuine desire to suppress the prosecutorial bias in the administration of criminal justice, I.L. Petruhin proposed a package of measures aimed at suppressing prosecutorial bias, including courageous but topical ones: 'to ban reversal of the jury verdicts of not guilty, and possibly of other courts as well’, ‘in order to ensure greater independence of judges to introduce the election of the presiding judge by all the judges of such court’, ‘to prohibit disciplinary sanctions for judges imposed for delivering acquittal judgments’ and so forth203.

In our opinion, it is possible to overcome prosecutorial bias. This requires a new personnel policy in courts and law enforcement bodies, designed for the influx of professionals who are brought up on the ideas of human rights and humane justice.

Another means of eliminating prosecutorial bias may be large-scale structural and organizational and legal transformation in the activities of the criminal justice authorities (alteration of the court and law enforcement agencies activity evaluation system; wide publicity in the administration of justice, and introducing institutions of civil control over these activities, and so forth).

In addition, it is necessary to implement systemic changes in the legislative regulation of all stages of criminal proceedings aimed at genuine re-establishment of the balance between the prosecution and the defense.

Prosecutorial bias, lack of independent analytical analysis, arrogance of investigators and judges are either the result of their non-professionalism, or manifested professional deformation and professional burnout.

The experience shows that some investigators and judges with a long track in the profession develop professional deformation and professional burnout, which sometimes lead to serious violations of the law, from the perspective of their consequences, prosecuting and prolonged detention of innocent persons, sentencing the innocent or determining excessively severe penalties for the guilty, often associated with imprisonment.

Careless attitude of some investigators and judges to their professional duties in reliance on achieving results without of the required volume of work done in the criminal case under investigation or under consideration in the court.

203 Petruhin I.L. The judgment of acquittal and the right to rehabilitation: monograph. Moscow: Prospect, 2014. P.191192.

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Striving for uncreative, unprofessional approach to the investigation and trial of criminal cases, desire to achieve the result with the least efforts possible cast some investigators and judges on the path of a ‘lightened’ investigation procedure of the stereotype: ‘detention – obtaining

‘confessions’ (‘the queen of evidence’) – consolidating this evidence’; a ‘lightened’ judicial procedure or a special procedure of the trial, or of the scheme ‘a guilty plea of the accused – consolidation of the confessionary evidence (often collected by the investigator)’.

“Such investigators, to be on the safe side, are trying to avoid committing for trial cases in which the indictment is based on circumstantial evidence, while proof by means of evidence has always been considered the highest manifestation of investigative skills”204.

Procedural decisions in these criminal cases are taken on the basis of incomplete and internally inconsistent evidentiary material; to ‘fortify’ confessions, they apply repeated interrogations with their audio and video recording, interrogations in the presence of witnesses, face-to-face confrontations in the absence of apparent contradictions in the testimony, ‘bringing to the scene’ (checking the testimony on the spot with the only goal – to get another accusatory evidence) and so forth.

The investigators are trying to justify their carelessness with giving the priority to solving crimes, acting on the principle ‘the final goal justifies the means’. These investigators find their ‘objective’ justification and commit for trial cases with gaps in the investigation of the crime circumstances hoping that the shortcomings of the investigation will be rectified by the court. The courts today, often in favor of the investigation and shielding with the thesis of ‘protecting the rights of crime victims’, of ‘the triumph of justice’, act as ‘preliminary investigation rescue team’, which, of course, clearly appeals to all the representatives of the prosecution – the investigator, the prosecutor and others. Moreover, the Investigative Committee of Russia initiated a draft law on the establishment of the institute of the objective truth in the Criminal Procedure Code of the Russian Federation implying the assignment to the court to take all necessary measures to make up for preliminary investigation gaps, as well as the revival of the institute of the court referring criminal cases for furhter investigation, including due to the incompleteness and one-sidedness in the establishment of all the circumstances of the subject of proof in the case by the investigator.

Without eliminating negative attitudes in the minds of inquirers and investigators, prosecutors and judges it is not possible to seriously expect any reduction in the number of investigative and judicial errors.

204 Shaifer S.A., Lazareva V.A., Ismakaev L.P. Investigative errors and their causes // Issues of further strengthening of socialist legitimacy in the investigation of crimes by internal affairs agencies. Kyiv, 1988. P. 110.