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I.S. Dikarev, in our view, rightly points out that ‘a single base revision entered into force court decisions in cassation and supervisory review should serve a fundamental violation of the law, which is a violation of criminal procedural law or incorrect application of the criminal law, which affected the outcome of the case and It distorts the very essence of justice and the meaning of judicial decisions as an act of justice’517.

Cassation and supervisory authorities are an exceptional standby of judicial mechanism to eliminate judicial errors, which generally confirmed by judicial statistics.

Specifically, in 2015 cassation and supervisory authorities received 144,627 complaints and representations (15.44% of the number of cases dealt with by courts of first instance). The courts of cassation and supervisory authorities on the submitted complaints and the submission of requests for the study of 44,468 criminal cases, accounting for 30.75% of the number of complaints and representations). In the end, the courts of cassation and supervisory instances refused to satisfy at 13,651 complaints and representations, which is 93.10% of the number of complaints and representations. We examined 10,271 cases, which is 7.10% of the total number of received appeals and supervisory complaints and representations518.

The court of cassation, supervisory authorities, as noted above, check the legitimacy of judicial decisions (judgments, orders, rulings) by examining the cassation, supervisory complaints, submissions on the documents annexed to it, as well as on the materials of the criminal judge claimed case.

Judicial revision is, in the opinion of the fair V.L. Golovko, ‘search for a compromise between, on the one hand, the firmness of judgments (the principle of res judicata) and, on the other hand, the need to correct material errors’, which determines the ‘policy of building methods review of sentences after their entry into force in the spirit of the so-called ‘legal certainty’ principle519.

We believe that for the purpose of elimination of miscarriages of justice there is also every reason to talk about the ‘comprehensive model of appeal and supervision’ includes the following essential elements:

– the possibility of the supervisory-cassation proceedings to be initiated not only by the parties to a criminal trial, but by the presiding judges (deputy presiding judges) of the courts of the Federation subjects and the courts corresponding to their level and the Supreme Court, with respect to the specificity of supervision and control proceedings, designed to consider not ‘questions of fact’ but ‘questions of law’, moreover, questions of fundamental violations of the law;

517Op. cit. P.19.

518Appendix №47.

519Golovko L.V. Op.cit. P.1062.

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–the duty of officials involved in the orbit of the supervisory-cassation activities (experts, assistant judges, the judges of the Federation subject courts and the Supreme Court of the Russian Federation) to study not only the cassation and supervisory complaints and petitions from the parties and materials attached to these petitions, but criminal cases too, including the audio-video recordings of the hearings of the case.

–the duty of judges to make their final ‘exemption’ decisions reasonably: for every argument of the complaint submitted by the participants of the trial to give detailed arguments based on the materials of criminal cases studied, avoiding the type of wording: ‘This argument of the complaint was the subject of the proceedings of the court of appeal instance”520.

An important role in the elimination of errors in criminal cases in order of appeal, cassation and supervision, along with the court belongs to professional participants of criminal proceedings

–the prosecutor and the defense lawyer521.

Sufficiently high effectiveness of participation in the courts of representatives of the prosecutor to address miscarriages of justice can be illustrated by the following statistics. During 2011–2015, the average percentage of satisfied Russian courts of appeal of the prosecutor in criminal cases (in the people) amounted to 78.98%. It was 70.65% In the ‘old’ appeal procedure for 2011–2012, the percentage of satisfied by the courts of cassation of the prosecutor in criminal cases; for ‘new’ appeal procedure for the years 2013–2015 the percentage was already 96.97% was 98.35%. In the ‘old’ supervisory procedure for 2011–2012 the percentage of satisfied court oversight of the prosecutor in criminal cases; for ‘new’ procedure for supervision of the 2013– 2015 years, this percentage was already 99.63% (in the years 2014 and 2015 – 100%)522.

The result for the identification, correction of and prevention of errors can be provided by proceedings on new and newly discovered circumstances. They look at various aspects of this extraordinary production523.

In particular, it is interesting approach by V.A. Davydov to improve procedures for the resumption of criminal proceedings because of new or newly discovered facts. He made a specific

520According to observations of the author as a criminal defense lawyer.

521Haliulin A.G. Participation of the prosecutor in criminal cases in the court of appeal and cassation instance: study guide. M., 2013; Kryukov V.F. Prosecution in court proceedings: criminal procedure and supervisory aspects of the activities of the prosecutor [electronic resource] Kursk. 2010. 412 p. // Access from reference and legal ‘ConsultantPlus’ system (access date: 15.09.2012).

522Appendix № 43.

523Anashkin G.Z., Perlov I.D. Resumption of cases due too newly discovered circumstances. M.: jurid. lit., 1982. -.

80p.; Gromov .T.he newly discovered facts and their investigation in criminal proceedings. - M.: Spark, 1999. - 220 p.; Kovtun N.N. Judicial review in the criminal trial of Russia / N.N.Kovtun. Nizhni Novgorod, 2002.; Vedishchev N.P. The resumption of the proceedings in view of new and newly discovered circumstances. - M.: Publisher 'Jurlitinform', 2003. - 256 p.; Zumakulov A.D. Institute of reopening of criminal proceedings because of new or newly discovered facts as a guarantee of individual rights and freedoms: Ab. dis . for cand. Jurid. Science / A.D. Zamakulov. M., 2005; Manova N.S. The resumption of the criminal case because of new or newly discovered facts: dignity and legal regulation failures / N.S. Manova // State and law. 2008. №5, etc.

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proposal in the wording of the text art.413 of the Code of Criminal Procedure, namely, he offered an important position to correct miscarriages of justice formulation of claim 6, part 2 of this article:

‘... The grounds for the resumption of criminal proceedings and judicial review of decisions in the manner prescribed chapter 49 of this Code are: ... circumstances not known to the court at the decision of a sentence or a determination, decisions which by themselves or in conjunction with other facts established earlier, prove innocence or making them less serious crime or more serious crimes, than the one for which he was sentenced, or the guilt of acquitted or person against whom a criminal case was dismissed’524.

It is important to focus on the original position of the Constitutional Court of the Russian Federation, stated them in the context of practice and the European Court of human Rights. The Constitutional Court finds that under the ‘other new circumstances’ should be understood not only unknown to the court the circumstances, and any miscarriage of justice, which led to an unjust court decisions, including those resulting from ignoring the evidence collected, which is reflected in the record, or their erroneous assessment or misuse of the law525, that there are circumstances which theory and practice were considered solely as a basis for judicial review in the supervising instance.

In accordance with the above position, the main criterion for use of a superior court of any form of testing is the presence or absence of the need to establish credibility by investigative action new information that cast doubt on the judgment rightly. Since the review of the judgment in the exercise of supervisory investigative actions are not allowed, the need to be determined by the application of a different order – the resumption of the case in view of the new circumstances526. In the legal literature suggests the need to develop and make available this production. For example, consider the use of relevant prosecutors on the basis of the procedural analogy general procedures for handling reports of crime, Article 144 of the CCP of the RF.

Whereas during this test were not sufficient grounds for instituting proceedings because of new or newly discovered facts, the prosecutor, guided the general provisions of Article 5 of the Code of Criminal Procedure, determining the procedural form of its decisions, must make a

524Davydov V.A. The resumption of criminal proceedings ... P.39-40.

525See: Ruling of the Constitutional Court of the Russian Federation ‘On the complaint of the citizen Andrey Anatolyevich Khoroshenko a violation of his constitutional rights by paragraph 5 of Article 403, the fourth part of Article 413 and parts of the first and the fifth paragraph of Article 415 of the Criminal Procedure Code Russian Federation’ of 28.06.2012 №1248-O. [Electronic resource] // Website of the Constitutional Court of the Russian

Federation. Electron. Da. Systems. Requirements: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision105554.pdf (reference date 02/07/2017).

526 Kamchatov K.V. The resumption of the criminal proceedings because of new or newly discovered facts: Moscow., 2017. P.14.

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decision not to initiate proceedings in view of new or newly discovered facts. In the presence of the above grounds it is to issue an order to initiate this production527.

Thus, we offer a ‘comprehensive investigation model for the proceedings of new and newly discovered circumstances’ with the broad definition of ‘new circumstances’ of traces to note that in Germany (as in Russia), the Institute is also furnished with a variety of obstacles that prevent its use, for example, the question of new or newly discovered facts, in favor of the convicted person, and against him, linked in Germany to proceedings in a very high instance – Oberlandsgericht (judgment level of our regional (regional) court or the Supreme court of the republic within the Russian Federation) in the court the Senate composed of five professional judges, that is, collectively, rather than individually528.

All French appeal proceedings are established on the principle of appeal, which sentenced the convicts to more serious punishment.

L.V. Golovko noted that sentences by Assize Courts, previously not subject to appellate review, were the subject of an appeal under the Law of 15 June 2000. Assize Court formed a jury at the end of the XVIII century, considering the case of the most dangerous violations of the law

– crimes. There is a concept that unlike the professional judges, to which ideologists of the French Revolution, experienced a marked lack of confidence, ‘the people, the sovereign’ is not wrong in principle ... any decision to be taken as the ultimate truth, so about any two courts considering criminal cases of this kind (the first and appeal) we could not go. Currently, the Assize Court consists of three professional judges and nine jurors are subject to appellate review only convictions. The subjects of the appeal may make convicted, the prosecutor and the civil claimant, the civil defendant to the civil claim. An appeal against decisions of the Court of Assizes is served in the Court of Cassation, which within one month decide whether the appointment of appeal. Court of Appeal acts as a court of Assize, the crucial matter of three professional judges and twelve members of the jury. It should be noted that the contested decision is not motivated, but the criminal case in a higher instance court comes under the rules of production of the first instance court. We can only guess how is the revision of the sentence in the court of Assizes in appeal. This innovation was ambiguously perceived by French processualists, emerged as his supporters – Professor Jean Pradel529 and opponents – the National Council of the Bar530.

The French appeal proceedings the parties may submit unexplored evidence to substantiate its position with new arguments, but may not refer to violation of the law that have occurred in the

527Oksyuk T. Discretion of the prosecutor in the criminal trial … P.9.

528Shreider F-K., Ferrel T. Op.cit. P. 241–245.

529Pradel J. Encore une tomade sur notre procedure penale avec la loi du 15 juin 2000 // Le Dalloz. 2000. № 26. P.

5−6.

530Golovko L.V. Reform of criminal proceedings in France // State and law. 2001. №8. P. 95.

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pre–trial proceedings, if earlier request to that effect is not stated. The limitation for the part demands of their own interests in favor, except the prosecutor, standing guard over the public interest and having an opportunity to advocate for the interests of both the prosecution and the defense, as the prosecutor is not considered a party in the French criminal proceedings. However, at the request of the prosecutor the amount of penalties in a civil lawsuit may be changed.

The model of French appeal was the basis for borrowing and setting appeal in the modern Russian proceedings.

Except the appeal, the French criminal procedure contains the following types of revision of court decisions: Opposition (revision of decisions rendered in absentia in matters of misdemeanors and offenses which have not entered into force), cassation and revision (similar to the resumption of Russian Interior view of the new or newly discovered facts). ‘French criminal procedure consists of three stages: preliminary investigation, trial and enforcement proceedings. The appeal procedure in appeal or cassation is a special stage of criminal proceedings’, which from the point of view of the classification of judicial review applies to subsequent or traditional, in the implementation of which involves all the courts531.

The Law of 15 June 2000 on the French Code of Criminal Procedure was supplemented by a new section ‘On the review of decisions in criminal matters in connection with the Human Rights judgments of the European Court,’ which, although it is adjacent to the audit list, but as K.F. Gutsenko notes, it is an independent way of review of sentences532.

All this somehow proves that in a radical reform of the judicial audit procedures appropriate mechanism for detecting, correcting and preventing the investigative and judicial errors in criminal proceedings will be effective only when the foundations of the practice and are suitably improved new appeal procedure appeal, supervision and production in view of new and newly discovered circumstances.

Certain steps in this direction have already been taken. In particular, the guidance came

Resolution of the Plenum of the Supreme Court on June 30, 2015 №29 ‘On the application of the norms of the Criminal Procedure Code of the Russian Federation regulating the production in court of appeal’; on January 28, 2014 №2 (with the subsequent changes and additions from 03.03.2015 year), ‘On the application of the rules of Chapter 47.1 of the Criminal Procedure Code of the Russian Federation governing the proceedings in the court of cassation.’ The Resolution of the Plenum of the Supreme Court emphasized that the proceedings in the court of cassation, as an important guarantee of the legality of judicial decisions in criminal matters and the implementation

531 Fokov A.P. Problems of judicial control over the execution of laws during the preliminary investigation (comparative analysis of the Russian and French law): Ab. Dis. for Cand. Jurid. Sciences. M., 2000, p. 15, 18.

532 Gutsenko K.F. The criminal trial in modern foreign countries. M., 2002. P. 401.

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of citizens' constitutional right to judicial protection, is intended for the detection and elimination of the preliminary investigation authorities or the court during the previous proceedings case of essential violations of the criminal law (misuse thereof) and (or) the law of criminal procedure that influenced the outcome of the case, and disorders that distort the very essence of justice and the meaning of the judgment as an act of justice.

According to new procedures to allocate the appropriate staff of judges, and if they these procedures do not turn into a formal and rapid time, if verdicts stability will not be the determining factor in the evaluation of judges if disappears notorious zonal supervision by higher-level judges, then we can talk about the effectiveness of reforms in the judicial revision, which will be a reliable barrier on the path of error in the administration of justice in criminal cases.

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CONCLUSION

The study of investigative and judicial errors in criminal proceedings conducted in this thesis research has allowed us to consider them as a phenomenon of the criminal procedure activities. Indeed, the ideal model of criminal proceedings which is based on strict observance by subjects conducting these proceedings of the principle of legality should have no errors. Yet they have always existed and, unfortunately, will do in the future. This is the effect of the phenomenon of error in criminal proceedings with it, certainly, being a negative one.

Given such nature of errors in criminal proceedings, from a scientific point of view it is impossible to raise a question of the total eradication of these errors: they may be minimized; many of them may be avoided, prevented; errors may and must be identified, rectified, and some may be forecast in order to be avoided.

In the current study, the author approached the problem of errors and eliminating them in criminal proceedings conceptually.

The modern authorial perception of the conceptual foundations of error elimination embraces the concept of error, of error classification and the presentation of their structure, as well as their causes. The concept presents the value of the criminal, including criminal procedural, policy for defining criminal and political strategies of prosecution and protection in criminal proceedings affecting the observance of the principle of legality and, accordingly, the procedures of identifying, correcting and preventing investigative and judicial errors in criminal cases. These procedures are implemented through a specific organizational and legal, including criminal procedural, error elimination mechanism.

With respect to different views, positions and scientific approaches to defining the notion of ‘investigative and a miscarriage of judicial error’, the author has taken into account the following important points:

Firstly, the procedural status of the error (conditionally – ‘formal’ errors) is ascribed to only those deviations from the principle of legality in criminal proceedings which are established by subjects conducting criminal proceedings, in procedural documents (e.g., in the court sentence, in a resolution of the prosecutor to refer the criminal case for further investigation, etc.).

Other participants (the defender, the victim, the accused, etc.) may, including procedurally, respond to errors, refer to them, but as long as the authoritative subject conducting criminal proceedings has not officially responded and has not indicated such error in a procedural documents, we may not speak about the procedural status of the error.

Of course, every scientist studying a criminal case has his own way to determine whether there was an error committed or not, on the basis, inter alia, of their own ideas with regard to the

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proper quality of criminal investigation and trial of criminal cases. The fact of an error in a case may be established on the basis of subjective judgments of the researcher (they may also be wrong). Therefore, the subjective approach in detecting an error in a criminal case in a scientific research is to be deflected through the official version of the error determined by the appropriate procedural decision.

Therefore, we mean that the phenomenon of an error is related to the real existence of:

–errors, officially determined (and legally recognized) in the procedural documents of subjects conducting criminal proceedings (e.g., in the decision of the judge to exclude some evidence of the evidence in the case);

–other errors.

Secondly, it is particularly important, especially in the context of differentiation of errors and procedural criminal offenses, to always differentiate the error itself (a specific activity/omission or a decision made or taken in violation of the legal requirements to their form and content) and the consequences (for officials who committed it, e.g. disciplinary sanctions, other persons involved in the orbit of criminal proceedings, e.g. the release of the accused from custody, for criminal proceedings, e.g. the referral of the criminal case by the prosecutor for further investigation) which it has caused or could have caused.

The study has found that occurrence of errors in a criminal case is closely related to violations by subjects conducting criminal proceedings of the principle of legality in criminal proceedings. The study presents a scale of these violations:

1.Violations related to the investigation and prosecution of criminal cases.

2.Procedurally meaningful violations of the principle of legality including incompleteness, one–sidedness and biased approach in investigation of the criminal case circumstances; failure to observe the constitutional rights and freedoms of an individual, as well as international standards of fair trial; substantive violations of the criminal procedural law; incorrect application of the criminal law.

3.Other violations of the principle of legality (technical and other similar errors).

Crimes of subjects conducting criminal proceedings are not included in the subject of this research since they have their own special nature. Other violations of the subjects conducting criminal proceedings of the principle of legality (technical and other similar errors) are also not the subject of this research as these do not encroach on the achievement of the purpose of criminal proceedings and objectively to a lesser extent hinder the achievement thereof.

The subject of this research is only the second group of violations of the principle of legality, i.e. significant procedural violation of the principle of legality which objectively interferes with the purpose of criminal proceedings. Moreover, the research generally concerned the

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miscarriage of justice in the situation: a wrong action/omission (an error) – a wrong result or the possibility of its occurrence (an error) in their interrelationship. In other words the research doesn’t generally address the situations, though quite possible: a wrong action (an error) – a correct result; aright action – an incorrect result (an error); a formally right action – a formally correct but objectively wrong result.

Non-observance of the constitutional rights and freedoms of individuals in criminal proceedings is studied as a separate type of the error due to the particular significance of the provisions of the Constitution of the RF. In addition, the study takes into account that Russia is to comply strictly with the rules and principles of international law, all the more so because since 1998 it has been under the jurisdiction of the European Court of Human Rights.

The investigative and judicial error in criminal proceedings, as a subject of scientific research, has been studied as a phenomenon which is expressed in the contradiction between the inevitability (naturality) of errors and the need to counteract them and thereby leads to the issue of their eliminability.

The following definition of the error is presented:

the error (investigative, judicial) is an unreasonable or unlawful act or omission, not containing features of criminal acts, of subjects conducting criminal proceedings expressed in incompleteness, one–sidedness and biased approach to the investigation by these subjects of the criminal case circumstances, failure to observe the constitutional human and civil rights and freedoms, as well as the international fair trial standards, a substantial violation of the criminal procedure law, incorrect application of the criminal law corresponding to their subjective attitude to the purpose of criminal proceedings and its objectively hindering the statutory achievement due to the improper procedural outcome (solution) received (due to possibility to receive such result).

The concept of elimination of investigative and judicial errors developed in this research is a resolution of a whole complex of fundamental theoretical and practical problems concerning the phenomenon of these errors requiring a doctrinal interpretation, as well as the relevant legislative and law enforcement (in view of the modern criminal policy) in order to improve the organizational and legal, including criminal procedural, error elimination mechanism. Considered together, all these elements of the system being studied (the notion of the error, its structure, classification, causes, concrete mechanisms of elimination, etc.) have amounted to a complete concept of eliminating investigative and judicial errors.

The research has examined various classifications of errors in criminal proceedings. These classifications allowed us to see all the diversity of this phenomenon and their logical relationship and interconditionality.

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The main classification of investigative and judicial errors (along with other classifications considered in the study) is their division according to the essential characteristic into the following types:

a)errors manifested in incompleteness, one-sidedness and biased investigation of the criminal case circumstances;

b)errors expressed in non-observance, during criminal proceedings, of constitutional rights and freedoms of the man and the citizen, as well as international standards of criminal proceedings (the fair trial);

c)errors expressed in significant violations of the criminal procedural law;

g ) error expressed in wrong application of the criminal law.

Undoubtedly, the ‘price’ for certain errors due to the significance for the state, society and the individual of the negative effects which they cause and what values protected by the Constitution of the Russian Federation they affect varies. Therefore, the research specifies a new kind of investigative and judicial errors –fundamental errors; this type of errors is given its own classification in accordance with the severity of consequences of the error for the state, society

and the individual:

1.non-fundamental errors;

2.fundamental errors.

Fundamental errors are non-criminal acts or omissions of subjects conducting preliminary investigation and trial of a criminal case involving a substantive violation of legitimate rights and interests of people, society and the state in criminal proceedings:

a) failure, by subjects conducting preliminary investigation and trial of a criminal case, to detect application by officials of criminal justice agencies of unlawful violence to obtain the testimony regarding the crime from ‘suspicious’ persons, suspects, the accused;

b) failure, by subjects conducting preliminary investigation and trial of a criminal case, to detect application by officials of criminal justice agencies of provocations for criminal acts in relation to ‘suspected’ persons;

c) errors by subjects conducting preliminary investigation and trial of a criminal case in collection, verification and evaluation of evidence in a criminal case, in application of the criminal law when as a result the suspect, the accused have been illegally detained (not detained), is illegally kept (not kept) in custody; the defendant has been unlawfully convicted, especially with an overly harsh sentence associated with imprisonmetn, unlawfully acquitted or received an excessively lenient sentence.

Structural (qualitatively and quantitatively) investigative errors have been found during the research with the following ranking: a) errors expressed in incompleteness, one-sidedness and