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‘The causes of the third level’, generalized factors, a kind of ‘the causes of the causes’
characterizing the conditions of activity of the investigative apparatus, and the judiciary as a whole, are the follows factors.
Deficiencies of legal and moral consciousness of investigators and judges determining their wrong attitude to work.
Unfortunately, the legal and moral consciousness of investigators and judges has deficiencies caused by lack of understanding of their role and responsibility as an arbiter of fate, which affects the results of criminal investigation and trial negatively.
Adherence to the requirements of professional ethics of lawyers (judges, prosecutors, investigators, etc.) is one of the most important components in the criminal procedural activity.
“The ethics of criminal procedure proving contributes to optimization, improving the efficiency and culture of criminal cases investigation; it allows us to focus the legal consciousness of officials in charge of criminal procedure proving on a system of moral values and ideals, to determine moral priorities. It also has a direct positive impact on the formation of professional qualities and attitudes of the inquirer, investigator, prosecutor and judge. These primarily include the sensitivity, respect for the people involved in the process of proof, a sense of professional duty, fairness and objectivity”205.
Serious attention should be given to discussing the following question: “What kind of legal career is to be undertaken by the applicant for the post of the judge”, “Is it normal that a significant part of judges are former court clerks and assistants to judges?”, “Isn’t it essential, as a condition for appointment to the position of the judge (especially the federal judge), to demand the applicants to have compulsory work experience in investigation agencies, the prosecutor's office, the advocacy?”, etc.206 The most appropriate ways of effectively forming the judiciary, which have already been found, will make it, above all, highly professional and authoritative in public perception.
Shortages in professional training of investigative personnel and the judiciary, in the organization of their furhter professional development (primarily of investigators).
The results of scientific research carried out by well–known legal scholars and practitioners (specifically, by the scientists-processualists of the All-Soviet Union Research Institute of the General Prosecutor's Office of the USSR) indicate that one of the most significant factors influencing the allowance of errors in criminal proceedings is deficiencies in the training of legal
205Moskalkova T.N. The ethics of Criminal Procedure Proof (preliminary investigation stage). M.: ‘Spark’ Publishing House, 1996. P.9-10.
206See Appendix №44.
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personnel. The problems of the educational process of lawyers have been analyzed by the author in detail in his scientific writings207.
Improving the training of lawyers continues to be an urgent problem. Its successful resolution requires radical improvements in a number of inter-related areas, from early professional selection of future investigators, prosecutors, judges and training them in university law schools to improving the system of further development of these lawyers during their professional activity.
There are effective proposals on the system for selecting students of law schools (especially, the ones sponsored by government agencies), training personnel for law enforcement agencies on the basis of compliance with a specific list of qualities and abilities for a particular profile professional. There are effective methods of professional psychological selection of entrants to the legal profession, as well as candidates applying for a job (service) in law enforcement.
Early professional selection of prospective investigators, prosecutors, judges supposes active participation of human resource departments of judicial and law enforcement agencies in this process.
They have a certain experience of creating a reserve for promoting the workers of their structures for administrative, senior positions. Similarly, it is necessary to form a reserve among schoolchildren, young people for admission to law schools and their subsequent work in law enforcement. To carry out such work human resources departments should skillfully apply scientifically developed programs and techniques to identify individuals who aspire to work in law enforcement and are prone to it according to certain criteria for such occupation.
As a result of work with the identified people, human resource services of law enforcement agencies could exploit their various partnerships links with law universities (cooperation agreements, agreement-based training for future specialists, establishment of specialized departments, support for specialized master's programs, etc.).
Earlier, Y.K. Yakimovich offered the agreement-based training of legal staff for state structures to be organized as follows: only those students who agree to work in the state structures within a certain period (e.g. 5 years) should be enrolled in educational programs sponsored by the state, i.e. publicly funded. “As before, applicants will be enrolled on the basis of entrance examinations. However, if the applicant chooses the publicly funded form of higher education, there should be a tripartite agreement with the mutual rights and obligations concluded with
207 See: Nazarov A.D. Investigative errors at pre-trial stages of criminal proceedings. P.185-197; Nazarov A.D. The effect of investigative errors on judicial errors. P. 253-270; Nazarov A.D. The causes of investigative errors. P.61-71.
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him/her. The parties to this agreement will be: the Law School, the applicant and that state structure in which, after graduation, the applicant is to work in accordance with such agreement”.208
Agreement based system, according to Y.K. Yakimovich, will make it possible for law enforcement agencies to employ qualified personnel, not to waste public money on training specialists for commercial structures, increase the commitment to and effectiveness in developing professional personnel of senior staff and human resource departments of law enforcement agencies.
We support the proposal of Y.K. Yakimovich on the restoration of planning in law enforcement agencies personnel development, primarily – investigators.
The question of improving the education system for future investigators, prosecutors and judges in university law schools is still of utmost importance.
Future lawyers in Russia graduate from public funded, institution sponsored and commercial vocational training colleges and higher education establishments.
Undoubtedly, among all these legal educational institutions, state (university law schools, institutes) and departmental (sponsored by the General Prosecutor's Office of the Russian Federation, the IC of the RF, the Interior Affairs Ministry of the RF, the FSS of the RF) colleges and university schools are the most appealing from the point of view of the quality of training of prospective investigators.
However, shortcomings in the organization of study in law schools are obvious and the gap between the education curriculum and the practical application is the first and foremost among them.
The educational process at the criminal law (forensic-investigative, judicial-prosecutorial) departments is to be addressed and adjusted.
The young specialist is ultimately formed in the course of work in law enforcement. Immersed from the first days in significant volumes of work, a graduate primarily perceives the methods and style of operation prevailing in the team, takes over the experience of colleagues, especially his mentor, senior.
This process is complex because the young specialist undergoes an intensive accumulation of skills. There arise psychological issues associated with entering into a new environment, with the need to make independent decisions and be personally responsible for them.
This situation becomes even more complicated in cases where the graduate faces practical phenomena, of which, when being a university student, he was not aware, but in the struggle of the new with the old, the legal and the illegal, the humane and the inhumane, not everyone is able
208 Yakimovich Y.K. Selected articles. P. 51-52.
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to withstand the prevailing stereotypes of relations, to show integrity in defending his position, dare to conflict for the triumph of legitimacy and justice. That is what sometimes leads to the fact that the young professional perceives not only positive but negative practices as well, becomes the successor of bad traditions.
Moreover, some young professionals lack self-criticism evaluating their work, the desire to understand the case thoroughly, and the ability to realize and timely correct their mistakes, which are, objectively, not excluded at the early stages of work. In this regard, the institute further training of young legal professionals under the guidance of their experienced colleagues is of particular importance for professional development (more precisely, achieving the proper qualification).
Along with further training of young professionals, a broad involvement of them into investigation of criminal cases as part of investigation teams and units with experienced investigators, professionals, etc., it is necessary to further improve such forms of training, proved by time, as self-education, individual learning activities, conferences, seminars, sharing experience, etc.
Further professional development is an official duty of judges, prosecutors, investigators. Attitude to work and professional growth should be seriously taken into account when addressing issues of job competence of the judge, the prosecutor or the investigator, their reward and promotion.
The sources of knowledge concerning the new legislation and directives of the Plenums of the Supreme Court of the Russian Federation, best practices of solving and investigating crimes, investigative-prosecutorial and judicial practice are periodic and special press, electronic systems and information media.
It is very important to have properly equipped codification offices, libraries of scientific and specialized legal literature in law enforcement agencies too.
Further professional development schools also have an important role in the professional development of lawyers.
Thus, innovation of technologies in training and further professional development of lawyers, employed in the criminal justice, is capable to significantly decrease the number of errors made in the criminal judicial proceedings.
Addressing the issue of neutralizing the above causes, it is necessary to review many questions associated with selection, training, placement, and educating the prosecutorial and investigative personnel and judges, timely identification those corrupt and morally unstable among them in order to remove them from office.
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The job of the judge, prosecutor and investigator sets high requirements for their personal psychological and moral qualities. The judiciary and law enforcement agencies employing people prone to corrupt behavior, with egoistic needs satisfaction priorities, mentally unbalanced and violent, with uncontrolled behavior, abusing alcohol, drugs, etc. can have a negative impact on the state of morale in investigative, prosecutorial and judicial teams, on professional discipline and the results of work, contribute to the commission of defamatory acts incompatible with service in the investigation and prosecutorial authorities and the court, even lead to a crime. Complicated procedures for selecting candidates and work with existing investigators, prosecutors and judges (including vocational and psychological testing, a polygraph test, the study of references, etc.), of course, reduce the above risks, but they still may not reduce to nothing.
Unfortunately, people, who do not meet the requirements to their personal qualities necessary for this occupation, are sometimes appointed as judges, prosecutors and investigators.
In this regard, the concept of selection, placement, consolidation and training the personnel of the investigative and prosecution authorities and the court makes a special emphasis on the need for staffing with honest, unselfish people, to the greatest extent suitable due to their inner conviction for the work the judiciary and law enforcement.
The system developed for psychological assessment, in addition to the use for psychological assessment of candidates for positions of judges, prosecutors and investigators can be applied for the following tasks:
– psychological selection of applicants to specialized departments of university law schools (with subsequent enrollment of graduates to work in investigation agencies, prosecutor’s office, the court);
– psychological selection of candidates for work in investigation agencies, prosecutor’s office, the court (in addition to graduates of specialized schools and faculties);
–psychological assessment of personnel reserve for promotion;
–psychological assessment of investigation staff, prosecutor’s office staff and judges when
evaluating or appraising personnel.
In addition to general and professiogram and psychogram of prosecutor-investigative and judicial activities it is necessary to have modern professiograms for specific specialties taking into account specific professional activities for each specialization (e.g., the military judge, the military prosecutor, the major crimes investigator, etc.).
The psychological evaluation of employees can be effectively used to solve a wide range of tasks with regard to the improvement of personnel policy in the prosecutor's office, investigation agencies and in courts.
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It is acceptable to assume that when being considered for a position prosecuting authorities, investigation agencies, the court, a candidate would be given written (one or two) references by practitioners or his teachers at the university. The moral responsibility and recognized authority of these persons, providing such references, would contribute to the impeccability of prosecutors, investigators and judges.
In the FSS, the Interior Affairs Ministry, and a number of other structures, there are appropriate internal security units, conferred by the RF Law On Operational-Investigative Activities with the power to conduct operational-search actions to ensure the security of these agencies.
Since 1999 the Prosecutor's Office of the Russian Federation has basically established a system to ensure the security thereof; the need for it has repeatedly been substantiated209. Similar structures have been increasingly applied in the system of the Investigative Committee of the Russian Federation.
Shortages in investigative and prosecutorial apparatuses superiors’ and the judiciary’ respond to investigative and judicial errors and other violations of the law.
The mechanism of how the investigative agencies and the judiciary deal with errors suggests several steps of responding to them:
a)‘error analysis sessions’: regular professional training, seminars and scientific conferences, etc., for investigators, interrogators, prosecutors, judges;
b)development of guidelines and recommendations, reviews, investigative, prosecutorial and judicial case-law issues and summaries of positive experience, etc.
c)disciplinary actions, various monetary sanctions for substantive violations among them.
For example, the Moscow city court holds inter-regional research and practice conferences concerning various aspects of judicial activities. In 2014 they held the fifth conference on the theme: ‘The judicial error and its consequences: some theoretical and practical aspects’. The topical issues discussed were the effects of a miscarriage of justice, the judge’s personal qualities and a miscarriage of justice, rectifying the judicial error, etc. The results of the conference were the materials published as a scientific and practical guide for law practitioners, first and foremost for judges210.
The issue of developing an effective mechanism of personal responsibility for making decisions crucial for the person and responding to substantive and systematic errors of judges is particularly relevant for the judicial system.
209 Pashkov A.N. Prosecution agencies as the object of internal security and the subject of provision thereof (problematic-administrative aspect) // Issues of management theory in prosecution agencies. M., 1997. P. 40.
210 Judicial error and consequences thereof: Some theoretical and practical aspects: proceedings of the Fifth interregional research and practice conference / Ch. Ed. O.A. Egorova, Y.F. Bespalov. Moscow: Prospect, 2014. - 168 p.
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Shortages in the appraisal and motivation of investigators, prosecutors and judges.
It is worth being noted that in recent years the level of remuneration of judges and investigators has in general increased significantly and can be considered decent.
However, the stimulation system for judges, prosecutors and investigators is still to be improved: it should be in correspondence with the responsibility and specific character of their work.
Shortcomings, difficulties and legal uncertainty in the modern criminal, criminal procedural and operational-search legislation; imperfections in the system organization of the work of investigative, operational-search bodies and the court, in the legal (departmental) regulation of operational-search and criminal procedural activity.
Shortcomings in legal regulation are a classic cause of a significant amount of investigative and judicial errors. These shortcomings are rectifies by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation through the decisions, directives, reviews of judicial practice, etc.
50% of prosecutors, 35.9% of investigators, 27.8% of judges have commented on the gaps and shortcomings in the legislative regulation of criminal and criminal procedural issues as the reason for investigative errors211.
In this regard, V.V. Luneeva’s comment seems to be of particular relevance: “The four criminal codes of Russia have seen over 300 new types of offenses criminalized and about 100 decriminalized. The legislative activity is not supported by significant scientific research; ...
continuous and controversial amendments to the law ... have no well-thought-through conceptual approach”212.
We have mentioned above the extensive approach in the context of improving the work of investigative, operational-search bodies and the court.
The intensive (associated with the quality indicators of changes) approach to improving the judiciary and law enforcement activities is more up-to-date and has been increasingly more popular; it involves professionalism developing in the operational-search, investigative, prosecutorial and judicial activity, modernization of material and technical facilities and scientific support for the activity of operational-search, forensic expertise, investigative, prosecutorial and judicial staff, etc.
211Appendix №44.
212Luneyev V.V. The era of globalization and crime: Monograph / V.V. Luneyev. M.: Norma: INFRA-M, 2017. P.156-157. - 272 p.
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The influence of factors (‘the causes of the third level') on investigative and judicial errors occur indirectly – through the ‘causes of the second and first levels’. This allows us to identify among them those that affect investigative and judicial errors crucially.
Thus, it is a complex multi-level approach makes it possible to consider the causes of investigative and judicial errors, as well as the conditions, factors accompanying these causes.
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CHAPTER 2. THE CRIMINAL PROCEDURE MECHANISM OF ELIMINATING
ERRORS: CONCEPT AND STRUCTURE
§1. The criminal procedure mechanism in the system of state legal instruments for the organizational legal mechanism of ensuring the legitimacy
It is obvious that the criminal procedural mechanism of error elimination is only one of the state-legal means of maintaining the regime of legality and the rule of law in the state and society and is part of a wider organizational and legal mechanism of error elimination including not only procedural, but other, basically, institutional components. It is also clear that the state-legal means of maintaining the regime of legality and the rule of law are generally defined and therefore presented in the legal policy of the state with the organizational-legal mechanism (including the criminal procedural one) defined and presented in the criminal policy. That is why the criminal procedural mechanism of error elimination should be considered in the context of the criminal policy with respect to the availability of other (non-procedural) organizational-legal components (or mechanisms).
In other words, the phenomenon of the error in criminal proceedings is closely related to the criminal legal policy of the state. Errors in the criminal procedural activity of public officials responsible for criminal proceedings, like, actually, the crimes committed by them in the service and other crimes, have a negative impact on the realization thereof in the sphere of criminal justice. Accordingly, among the government actions in the field of criminal policy there are many actions aiming at eliminating errors in criminal proceedings and at the fight against crimes committed by subjects conducting criminal proceedings to ensure the proper regime of legitimacy and human and civil rights and freedoms.
The criminal policy has direct influence on achieving the purpose of criminal judicial proceedings (Article 6 of the Code of Criminal Procedure of the RF) and compliance with the principles of criminal proceedings, first of all, the principle of legitimacy (Article 7 of the Code of Criminal Procedure of the RF).
It is commonly known that the criminal policy expresses the attitude of the authorities to the crime. The State has certain ways to communicate the policy at the level of ideas, concepts, legislation, functioning of respective repressive institutions, law enforcement, typical legal behavior of subjects conducting criminal proceedings, and so forth.
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The state policy in the field of criminal justice is based on the fundamental provisions of the Constitution of the RF213. According to the provisions of Article 15 of the Constitution of the RF, the latest trends of international and, in particular, European, law also affect the criminal policy direction in our country.
Aspects of the criminal policy related to criminal proceedings continue to be relevant in the context of implementing the Concept of judicial reform in the Russian Federation214.
Criminal policy, being an element of public policy, of legal policy, contributes to ‘the effective provision of public security, national security’215, is a unity of six components: criminal legal, criminal preventive, criminal investigative, criminal procedural, penal and criminal administrative. The modern criminal policy is characterized by the following features: humanization of the criminal process, increasing the legal security for the individual; finding the optimal balance between the interests of preserving the inviolability of private life of citizens and the fight against crime; strict compliance with legitimacy in the criminal procedure law enforcement; democratization of criminal procedural measures to combat crime; differentiation of criminal procedural forms; improving the organization of the law enforcement system, the optimal distribution of procedural rights and obligations between them; improving the rules of evidence law; applying universal values in criminal proceedings, achievements of world civilization216.
N.I. Kapinus figuratively says that modern times see ‘liberalization of criminal and criminal procedural policy aimed at limiting the repressive functions and tightening control over the application of measures restricting the rights of individuals’217.
As early as in Soviet times, researchers thought that the criminal procedural policy was to be aimed at the strictest observance of legitimacy; clear definition of law enforcement agencies and their competencies; broad involvement of the public; strict limitation of the coercive procedural actions to the utmost necessary; overall protection of the rights and legitimate interests of all participants in procedural activities; identifying and eliminating the causes and conditions conducive to crime218.
213See: Bosholov S.S. The constitutional foundations of the criminal policy: the reality and the focus of scientific research / Issues of criminal policy. Interuniversity collection of academic papers. Krasnoyarsk. Krasn. State. University Publishing house, 1991. P. 7
214The concept of the judicial reform in the Russian Federation / Comp. S.A. Pashin. M.: Republic, 1992. – 111 p.
215Aleksandrov A.I. Criminal policy and criminal proceedings in the Russian statehood: History, Modern Times, Prospects, Issues. St. Petersburg, 2003. – P. 374.
216Aleksandrov A.I. The philosophy of evil and the philosophy of crime (issues of philosophy of law, criminal policy and criminal proceedings). St.Petersburg.: St. Petersburg State University Publishing House, 2013. – p. 278, 415–421.
217Kapinus N.I. Procedural safeguards of individual rights in the application of pre–trial restrictions in criminal proceedings. Ab. diss for Doctor. Jurid. Sciences. M., 2001. P.14.
218Alekseyev N.S., Daev V.G. Criminal procedure policy of the Soviet state at the present stage // Jurisprudence.
1977. №5. P. 98.