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suffering. In turn, if their activities in solving crimes and exposure of those guilty will not be successful in court, it will lead to demoralization of the criminal prosecution bodies”257.

Currently, the strategy of criminal prosecution in Russia is related to, as already mentioned above, the following periodically announced ‘campaigns’: the fight against terrorism and extremism, drug trafficking; corruption; torture in police (in addition to this, the fight against ‘dirty cops’); the fight against pedophiles and maniacs; drunk drivers; air-travelers-hooligans, etc.

Under the shelter of these ‘campaigns’, as have also been mentioned above, some provisions in the law have got more stringent.

In recent years, the strategy of the criminal prosecution (accusation) have prevailed when high-profile crimes are committed and law enforcement agencies (most often – the Investigative Committee of Russia) announce in the media that they have arrested suspects, filed with the court motions to detain persons who committed criminal negligence, which resulted in the explosions occurring at the mine with human toll, children dying in uncovered manholes, an accident with the aircraft, etc. The normal scope of classical reasons for determining strict measures of procedural coercion does not usually include these situations (‘may hide from the investigation and trial’, ‘may commit new crimes’, ‘may affect the prosecution witnesses, etc.’), but the state should show the public the severity of its ‘criminal reaction’, ‘power of the repressive machinery of the state’ ready to stand up for human protection, society and the state in extraordinary situations with serious consequences, etc. Basically, everything is done within the framework of the European standard of detention to maintain the public order and to prevent mass disorders in the community. Yet it clearly looks like a typical content (manifestation) of the model (strategy) of criminal prosecution (accusation).

During the research, we have adhered to the hypothesis that the implementation of criminal prosecution strategy (accusation) raises the threshold of investigative and judicial errors relating to the protection of the rights and legitimate interests the accused and at the same time lowers the threshold for errors related to the protection of, in particular, the victim of crime (the wronged person).

The strategies of criminal prosecution and protection of the rights and freedoms of the accused (prosecution and defense) are implemented by participants in criminal proceedings. The legislator even joined these participants in groups (parties): ‘participants in criminal proceedings for the prosecution’ (Chapter 6 of the Criminal Procedure Code of the Russian Federation: the prosecutor, the investigator, the head of the investigative agency, the inquiry agency, the head of the inquiry unit, the inquirer, the victim, the private prosecutor, the plaintiff, representatives of the

257 Stoyko N.G. Ibid. P. 72.

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victim, the plaintiff and the private prosecutor); ‘participants in criminal proceedings for the defense’ (Chapter 7 of the Criminal Procedure Code of the Russian Federation: the suspect, the accused, legal representatives of a minor suspect or the accused, the defense lawyer, the defendant, the legal representative of the defendant).

However, the above given division of participants in criminal proceedings into participants of both sides of adversarial proceedings (the prosecution and the defense) is clearly conditional. Participants who fulfill the mission of subjects conducting criminal proceedings (the prosecutor, the investigator, the head of the investigative agency, the investigation agency, the chief of the inquiry agency, the inquirer) pursue the public interest which is linked to achieving the purpose of criminal proceedings, its principles and mission prerequisite for the implementation of the criminal policy. This is the reason why we are talking about these two strategies: prosecution and protection of the rights and freedoms of the accused (prosecution and defense) in their intercorrelation.

The interconnection of these strategies may be looked in the light of the procedural status of the prosecutor.

The procedural position of the prosecutor in criminal proceedings is unique. At pre-trial stages the name of the procedural status is defined exactly like this –‘the prosecutor’, ‘the supervising prosecutor’ (chapter 19–32.1 of the Code of Criminal Procedure of the RF). In preparation for the trial, including during the preliminary hearing, the procedural status of the prosecutor is indicates as ‘the party’ and ‘the prosecutor’ (chapters 33–34 of the Code of Criminal Procedure of the RF). At the hearing of the criminal case on the merits in the trial court, at the appeal hearing the procedural status of the prosecutor is only referred to as ‘the procurator,’ ‘the public procurator’ (Art. 246 of the Code of Criminal Procedure of the RF, and other articles of the Criminal Procedure Code of the Russian Federation in Chapters 35–45.1). For the appeal and supervisory consideration of the criminal case, the review proceedings and resolution of issues related to the sentence execution, the proceeding for the application of compulsory medical measures, for educational correction, etc. (Chapter 46, 47.1, 48.1, 49, 50, 51, 52, 53 54 of the Code of Criminal Procedure of the RF) the procedural status of the prosecutor is again defined as ‘the public prosecutor’.

‘The public procurator is an official of the prosecutor's office representing on behalf of the state the prosecution in a criminal case being heard in court (p.6 p.1 Art. 5 of the Code of Criminal Procedure of the RF).

“The prosecution is represented by the prosecutor and the investigator, the head of the investigation body, the inquirer, the private prosecutor, the victim, his legal representative and the representative, the civil plaintiff and his representative” (Sec. 47 Part 1 Article 5 of the Code of Criminal Procedure of the RF).

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“In judicial proceedings for a criminal case the prosecutor presents the state prosecution ensuring its legality and validity” (part 3 Article 37 of the Code of Criminal Procedure of the RF).

In view of the foregoing, especially taking into account the detailed regulation of the powers of the prosecutor in court set forth in Article 246 of the Code of Criminal Procedure of the RF, the procedural mission the prosecutor in the proceedings of the criminal case on the merits in the trial court and in the appeal proceedings of the case may be defined as participation of the prosecutor for the prosecution with the status of ‘the public procurator’ for the public accusation brought by the bodies of the preliminary investigation and approved by the supervising prosecutor, for a full or partial waiver of the said accusation, for the alteration thereof through mitigating in court under certain circumstances provided for by the law.

Such definition of the prosecutor’s procedural mission in court seems to be artificial, since, in our opinion, the investigator, the head of the investigation agency (the head of the investigation unit), the inquirer, the head of the inquiry agency, the prosecutor may not be qualified as parties for the prosecution. These are state officials, along with the court, endowed with powers and authority to perform proof in a criminal case, the preliminary investigation thereof and adjudication in court to achieve the purpose of criminal proceedings.

These subjects conducting criminal proceedings, providing complete, comprehensive and objective investigation of all the circumstances of the criminal case can be neither on the side of defense, nor on the side of the prosecution, since they, unlike the parties to a criminal trial divided between these two sides, do not have any personal interest while the public interest requires the authority subjects to establish both incriminating and exculpative, aggravating and mitigating circumstances, with this being guided by considerations of legality, humanity and fairness.

Therefore, in the Code of Criminal Procedure of the RF, it would be reasonable to name the above mentioned subjects, throughout whole criminal proceedings, not a party of prosecutors but exactly the inquirer, the head of the inquiry agency (the head of the inquiry unit), the investigator, the head of the investigation agency, the prosecutor, along with the court, securing the public nature of criminal judicial proceedings.

We support the position of A.S. Barabash claiming that ‘it is impossible to talk about the functions of prosecution, defense, resolution of the case securing them for certain subjects’, conducting the proceedings. “The prosecutor, before articulating his closing argument, is to be involved in the court proceedings, examine the evidence directly, and only if basing on the material studied he gets an inner conviction, he presents the court his accusatory or acquittal closing argument supporting it properly. The acquittal closing argument is also to be presented when he has the inner conviction that further investigation is impossible. If the mind of the prosecutor sticks to the idea that he is a procurator, we may no longer hope for his balanced approach to the case;

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the principle of comprehensiveness, completeness and objectivity of the investigation of the case will not be an order to him”258.

With regard to the strategy of protection of rights and freedoms of the accused (defense strategy) it is essential to show the level of observance of human rights in criminal proceedings, namely:

–protection on the part of persons conducting the criminal proceedings (taking into account the arguments provided above, they are the prosecutor, the investigator, the head of the investigation agency , the inquiry agency, the head of the inquiry division, the inquirer);

–the protection carried out by persons who do not conduct criminal proceedings (defense lawyer, federal and regional ombudsperson (including for children), human rights activists, council and Duma members and other persons);

–self representation.

According to the strategic (model) approach proposed by N.G. Stoyko, the strategy of protection of rights and freedoms of the accused is expressed in the model of proper justice and the models, close to it, of alignment of interests of the state and the accused. Accordingly, the goal expressed in this strategy is justice (procedural and material); the function that it prescribes to the criminal justice authorities is to protect the rights and freedoms of the accused.

In implementing this strategy in criminal proceedings, the dominant importance is given to resolving a criminal case impartiality, respectfully of the human and civil rights and freedoms, to the rightness with respect to the prosecution and defense parties.

This strategy gives preference to procedural fairness, the interests of the accused at the expense of state power control and reducing its effectiveness. Arbitrary, not subordinate to control exercise of power in criminal proceedings is a worse evil than failure to ensure the inevitability of conviction and punishing every criminal. That is why every accused has the right to and can count here on honest (fair) trial of his case, and in case of establishing the guilt, on a fair punishment reflecting the seriousness of the crime committed, the condemnation being deserved, as well as the harm caused to the victim259.

In our opinion, this strategy allows us to formulate a scientific hypothesis of minimizing the amount of errors on the part of subjects conducting criminal proceedings regarding the protection of rights and legitimate interests of the accused; however, in terms of the protection of the victim of the crime (wronged person) the error threshold may be higher than in the considered strategy (model) of criminal prosecution.

258Barabash A.S. Subjects of criminal proceedings and subjects of criminal – procedural proof // Siberian legal notes: Association of Law Universities ‘Siberia’ Annals. Vol. 1. Krasnoyarsk, 2001, p. 133.

259Stoyko N.G. Ibid. P. 68–69.

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The examination of the two polar, seeking to convergence, diametrically opposite models (strategies) of criminal prosecution and protection of the rights and freedoms of the accused (prosecution and defense) is related to the organizational legal mechanism of ensuring efficient and qualitative (error-free) criminal proceedings. For many years the problems of the effectiveness of the administration of justice in criminal cases, the quality of the preliminary investigation and the judicial proceedings have been objects of scientific research.

Many factors still influence the successful implementation of the strategies of prosecution and protection of the rights and freedoms of the accused (prosecution and defense) in the criminal (first of all – criminal procedural) policy. We have already considered some of these factors while speaking about the causes of errors in criminal proceedings. But one of the most urgent problems in the context of the proper implementation of the strategies considered is the question of responsibility of subjects conducting criminal proceedings for errors in their criminal procedure activities.

The state has consistently maintained the important thesis that for all deviations from the principle of legality (including, errors) by subjects conducting criminal proceedings it is the state that is responsible, both morally and materially, in the context of the procedures associated with the rehabilitation. But the desire of the state to punish subjects conducting the criminal proceedings for the violations, errors and other mistakes committed in the work, disciplinary, morally, materially, and even in accordance with criminal procedure, has always been present.

Indeed, if in the criminal procedural activities of subjects conducting criminal proceedings, there is a bias to some of the strategies – the prosecution or protection of the rights and freedoms of the accused (prosecution and defense), the notorious prosecutorial or defensive biases, this should cause the corresponding criminal procedural and organizational responses of authoritative subjects.

Thus, only a reasonable balance between the strategies of criminal prosecution and protection of the rights and freedoms of the accused (prosecution and defense) will make it possible to achieve all the goals and objectives which are determined by the demands of the modern criminal policy for the criminal judicial proceedings, not defying the principle of legality in criminal proceedings and avoiding errors on the part of subjects conducting the proceedings.

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§2. The concept and the basic components of the criminal procedural error mechanism of

eliminating errors

The term ‘mechanism’ is used in legal science to refer to various legal phenomena. Specifically, in the theory of state and law, the concept of the state mechanism is well

established as a coherent hierarchical system of internally structured (having apparatus) state bodies and institution, virtually exercising public power through solving their tasks in accordance with functions specified for them260. Moreover, it is emphasized that there can be no state without mechanism261. The signs attributed to the state mechanism usually include: an integrated structure (the division of the whole into parts); a hierarchy (formation on the principles of coordination and subordination); a special subject structure (internally structured bodies and institutions); a special purpose (exercise of power)262.

In other words, the state mechanism is seen, basically, as its (state) specific technical structure, technical organization or co-organization of its individual parts, elements out of the context (although in view of) of their implementation in government activities, which means that the main focus is on institutional (not procedural) parts and components as well as institutional means of their integration into the whole (hierarchical relationships, the goal integrating parts into the whole or purposes uniting them into a structural element).

Another important concept in the theory of law and state is a ‘mechanism of statutory regulation’. Usually this concept is interpreted through defining the legal regulation mechanism stages (phases), elements and methods corresponding to these stages (phases).

The main stages are:

–the stage of law-making and overall positive (moral imperative) impact of legal norms on public relations;

–the stage of law enforcement and/or emergence of rights and duties (as a result of application of law or in connection with a legal fact) of specific subjects of law – legal relations as individualized way of behavior;

–the stage of exercising rights and obligations in the activities of the subjects of law, including in their actual behavior.

260On this see e.g.: The Theory of State and Law: Textbook for Universities / Ch. Ed. Alekseev S.S., Arkhipov S.I. M.: Norma, 2005. – 496 p.

261The Theory of State and Law. Lecture course. / Ch. Ed. Matuzov N.I., Malko A.V. 3–e ed., revised and ad.. M.: Norma: R&D INFRA–M, 2012. – 640 p.

262Alekseyev S.S., Arkhipov S.I. Op.cit.; Perevalov V.D. Theory of State and Law: textbook for universities. M.: Juright, 2010. – 379 p.

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The elements of these stages are: legal norms (including acts of law enforcement); legal relationship; acts of exercising rights (through the use and application thereof) and responsibilities (through the performance thereof and compliance with prohibitions).

The main methods of legal regulation are:

–the method of subordination or authoritative-imperative imputation (typical for branches of public law);

–the method of coordination and harmonization, participation (typical for branches of private law)263.

In other words, the mechanism of legal regulation is seen (similar to the understanding of the state mechanism) as its (legal regulation) technical construction, technical organization or coorganization of its parts and elements in the context of legal activity, which means that the focus is on the procedural parts and their elements, as well as the procedural ways of their integration into the whole (subordination, coordination).

Given the fundamental nature of these concepts, it is not a coincidence that the science of procedural and criminal procedural law is based on them and in some cases reproduces them264. This applies to both the institutional characteristics of the bodies conducting criminal proceedings (the system of agencies, their internal structure, etc.), and procedural characteristics of these bodies and participants (division and co-organization of the state agencies in the exercise of their procedural authority, determination of their legal status, etc.).

Specifically, L.V. Golovko, speaking of ideal models of criminal proceedings in general, basically sees them as a technical structure (form) of the entire proceedings of the case and the organization of the individual (key) stages in compliance with the structure, while paying attention to the separation and the level of interdependence of procedural authorities265.

Similarly, N.G. Stoyko, giving his institutional and functional characteristic of criminal proceedings in different countries, puts an emphasis on the organization of relations within the government and non-state structures, between authorities and their representatives, as well as between the authorities and non-state participants of proceedings266.

It is obvious that the logic of applying the term ‘mechanism’ to the definition of the above terms (as well as the general meaning given to them) is generally quite applicable to our research too.

263General Theory of Law and State: Textbook / Ed. V.V. Lazarev. 2nd ed., rev. and ext. M.: Jurist, 1996. P. 394.

264Vide, e.g.: Lukyanova E.G. Theory of procedural law. M.: Publishing House NORMA, 2003. P. 156–228.

265For more detail see: Course of criminal proceedings / ed. prof., Doctor of Law L.V. Golovko. M., 2016. P. 184–

266Stoyko N.G. Criminal proceedings of Western states and Russia: Comparative Theoretical Legal Study of Anglo– American and Roman–Germanic legal systems. St. Petersburg, 2006, pp. 149–150.

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Therefore, the mechanism of eliminating investigative and judicial errors is considered herein primarily through the prism of its constituent interrelated components.

In our opinion, the following components can be identified.

1. Stages (and the corresponding algorithms of actions): detection, correction and prevention (in some cases – ‘forecasting’) of errors.

Each of the stages identified is a fairly stable structure (element) not only indicating a specific sequence but allowing to expose the content of the activities aimed at the elimination of investigative and judicial errors.

Detection of errors is the establishment of errors by the subjects conducting proceedings and other participants in criminal proceedings through criminal procedural activity.

Correction of errors is rectification of errors by subjects conducting proceedings through the processes of criminal procedural activity.

Prevention of errors is specific preventive (organizational and procedural) activity of subjects conducting criminal proceedings aimed at eliminating errors in the future, which is carried out within the framework of criminal procedure.

Forecasting of errors is mental and organizational (non-legal) activity of subjects conducting criminal proceedings and other participants in criminal proceedings aimed at the analysis of the criminal procedural situation in which errors may be committed for the purpose of early prevention, detection and correction267.

Moreover, detection, correction and prevention of errors in the criminal proceedings substantively present themselves as functionally interconnected complex of various instruments. These instruments act as subsystems ensuring the achievement of independent sub-goals without which it is impossible to attain the overall result – legitimate, reasonable and fair justice.

It seems to be important to include the following in the list of such subsystems: the subsystem of organizational instruments ensuring the identification, correction and prevention of errors in criminal proceedings; the subsystem of legal instruments ensuring the identification, correction and prevention of errors in criminal proceedings; the subsystem of informational and cognitive activity of detecting, correcting and preventing errors; the subsystem of material and technical (economic) instruments ensuring the identification, correction and prevention of errors in criminal proceedings; the subsystem of moral-ethical and professional-educational instruments ensuring the detection, correction and prevention of errors in criminal proceedings.

2. The main parts (separate mechanisms):

267 As I.M. Raghimov has aptly noted, judicial forecasting is largely built on using statistics and mathematics and is aimed at improving the judicial activity. See: Raghimov I.M. Theory of judicial forecasting. B. Azerneshr, 1987. – 127 p. Herein we only consider the most general aspects of forecasting for miscarriages of justice, as this sphere of activity remains outside the legal field and deserves a separate scientific study.

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–mechanisms of preliminary investigation;

–mechanisms of proceedings in the trial court;

–mechanisms of proceedings in courts of higher instances.

The mechanisms of eliminating errors at the stage of preliminary investigation are divided into mechanisms of judicial review, the prosecutor's supervision, institutional control and selfscrutiny mechanism, when the investigator or inquirer take interim and final procedural decisions.

The mechanisms of eliminating errors in the proceedings in the trial court are divided into the mechanism of referring the case to the prosecutor to eliminate obstacles insurmountable to justice, the mechanism of excluding inadmissible evidence from the evidence on the case, the mechanism of judicial review of the preliminary investigation results (hearing on the merits and self-scrutiny when determining a sentence).

The mechanism of eliminating errors in the proceedings in the courts of higher instances are divided into the mechanism of judicial review under the appeal, the mechanism of judicial review under the cassation, the mechanism of supervision and reopening cases in view of new and newly discovered circumstances.

Moreover, it is worth noting that the mechanism of self-scrutiny, when the investigator or the inquiry officer takes interim and final procedural decisions, is a part of the investigation, and the mechanism is self-scrutiny when determining a sentence is a part of the trial. In other words, it is not specific error elimination mechanisms. Similarly, the judicial review of preliminary investigation results is not a special mechanism of eliminating errors completely coinciding with the stage of judicial proceedings. On the other hand, the judicial review under the appeal and the judicial supervision, completely coinciding with the relevant stages of the criminal proceedings, are such mechanisms.

3. Special subjects, special legal status of these subjects and the special legal regulation of the procedure for their activity.

The subjects engaged in detection, correction and prevention of errors are the head of the inquiry unit, the head of the inquiry agency, the head of the investigative agency, the prosecutor, the judge, the court of first instance, courts of higher instances. Their legal status is clearly defined in the law. Their controlling and reviewing, judicial and supervisory activity is regulated at the level of relevant actions, decisions and procedures. This suggests the existence of separate institutes of law: judicial review, prosecutorial supervision, institutional control, judicial inspection and judicial supervision. Moreover, the institute of prosecutorial supervision is not limited to the preliminary investigation stage. By virtue of the powers granted to the prosecutor, he may and must ‘be involved’ in eliminating errors at all stages of criminal proceedings.