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the investigative body has the authority to initiate a criminal case, start the investigation and conduct the preliminary investigation in full, while possessing the powers of the investigator and the head of the investigation group under the CCP of the RF.
Usually heads of the investigating authorities and their deputies at the low level investigate up to a dozen criminal cases, the most complex cases for serious or very serious crimes.
On the one hand, the personal involvement of the head of the investigative unit in carrying out certain investigative actions, as well as the investigation of the criminal case, generally minimizes the number of errors in investigating but, on the other hand, the distraction of the head of the investigative body to conduct criminal investigations in full negatively impact the implementation of their institutional control.
The above allows to make a suggestion that the personal preliminary investigation by the head of the investigative body be carried out in exceptional circumstances, since the opposite immediately affect the quality of the institutional control and the number of investigative errors committed by subordinate investigators.
Due to Russian geographical factors, the structure of the investigative units of any investigative agency quite often creates a situation where for the head of the investigative body it is very difficult to exercise their powers geographically: the head is deployed in one village and subordinate investigators – in another, often very distant from each other. There are problems of mobility and efficiency in the implementation of institutional controls, which can be solved introducing modern communication technologies: conference calls, e–signature, etc.
Apart from above, the head of the investigative body in accordance with departmental orders is required to implement ‘purely’ administrative and management function of the organization of the subordinate investigator personnel.
The head of the investigative body shall perform the following responsibilities.
1.Planning the investigative unit workload, monitoring the implementation of the planned
actions.
All current issues: selection, placement, training of personnel, workload distribution, the holiday schedule, general planning meetings, operational meetings, meetings for specific detection and investigation of criminal cases, resolution of issues of disciplinary sanctions, promotions, sharing good practice, resolution of organizational and economic problems, social problems of subordinates, etc. is necessary to be solved every day by the head of the investigative body, as they indirectly but still impact on the results of investigative work in criminal cases.
2.Cooperation with other services of the Interior Ministry, FSS and MIA, etc.
In the system of MIA, for example, the head of the investigative body is the deputy head of the internal affairs authority leader. This allows him to effectively solve many organizational
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questions concerning the activities of the investigative unit: trips to the scene and visits to conduct other investigative actions, to ensure the appearance of witnesses for interrogation, detention of suspects, serving writs, other specific instructions of investigator to officers of the internal affairs, organization of effective work of the investigation group, effective operational-search actions (operational support of criminal cases investigation), etc.
Where there is constructive cooperation of investigative and other units of the Interior Ministry, FSS secured by the head of the investigative body, the quality of criminal investigation is appropriate.
3.Monitors the performance of decisions, orders and instructions of the higher authorities, the supervising prosecutor (including organizing the examination of submissions of the prosecutor and the adoption of measures to address the identified deficiencies in the investigation for criminal cases). A special area of institutional control is consideration of private decisions of judges and special rulings of the court, the implementation of measures to eliminate the errors identified by the court, violations of the law during the pretrial investigation in criminal cases.
4.Reports to the superiors on the status of investigation and criminal cases deserving special attention, drafting statistical reports and analyzing the performance of investigative work, a number of other management responsibilities.
Exercising the above administrative authority, the head of the investigative body thus routinely checks the legality and quality of the work of his subordinate investigators in criminal cases, applying to them, if necessary, procedural and administrative (disciplinary)measures.
The above conceptually and normatively justify the model of the heteropolar institutional control as specific control and supervisory activity during pre-trial proceedings in a criminal case.
Thus, Russian institutional control has heteropolar nature, supposes the inclusion of elements of personnel mentoring and training; is exercised through pretrial proceedings under the prosecutorial supervision and manifested in the procedural and administrative activity of the head of the investigative body.
Institutional control (along with the prosecutorial supervision) operates permanently throughout pretrial proceedings. At the low level activities of investigative units it enables the
heads of investigating authorities to almost totally control criminal procedural activities of investigators (especially those who are just beginning their investigation careers). On other (higher) levels of investigative agencies, it allows to reasonably combine (no ‘regime totality’) institutional (procedure) control with the procedural independence of the investigator. Moreover, institutional control is in a relationship of interaction with the judicial supervision and the prosecutor's supervision and in particular dependence on them.
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Only under such conditions may institutional control:
a)successfully identify, correct and prevent investigation errors in pretrial proceedings;
b)minimize the risk of their own mistakes (errors of the leaders of investigating authorities);
c)achieve the strategic objectives of the prosecution and the protection of human rights.
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CHAPTER 4. MAIN COMPONENTS OF THE JUDICIAL MECHANISM OF
ELIMINATING ERRORS AT PRETRIAL STAGES OF CRIMINAL PROCEEDINGD
In theory and practice, the main instruments in the detection, correction and prevention of errors at the trial stage are classically considered the proceedings in the court of the first instance, in the second instance (appeal), in cassation and supervising instances and the resumption of the proceeding of the criminal case in view of new and newly discovered circumstances423.
This activity is organizationally constructed in accordance with the division into judicial units and instances and procedurally accomplished through the proceedings on criminal cases by courts representing the relevant instances.
From the point of view of the general goal of eliminating errors, judicial proceedings, on the one hand, may be represented as a single procedural mechanism (procedural organization) to achieve it. On the other hand, divided into steps (stages), these proceedings may be represented as a set of procedural mechanisms to achieve the said purpose in the conditions of each individual stage.
The judicial mechanism of eliminating errors in Russian criminal proceedings at trial stages which has a number of general and special features:
–the judicial review in the trial court is distributed between professional courts and jury courts (with the general jurisdiction of the former and narrow of the latter);
–the functional homogeneity of the whole judicial review in all courts of the first instance (except for the judge-professional in the jury court not having the duty to take a decision on the fact of guilt of the defendant and the judge-professional in the hearing under a special procedure not having the duty to directly examine the evidence confirming the guilt of the defendant);
–the investigation activity of all judges-professionals when exercising the judicial review in the trial court (equal – under the general procedure of trial and in the jury trial, limited to the study of written materials of the case for all issues and the possibility of direct examination of evidence only for punishment issues – under the special procedure of judicial consideration);
–the possibility of full appeal under the procedure of judicial review in a court of the second instance;
–functional division of judicial review in the court of the second instance into cassation, supervision and renewal of cases due to new and newly discovered circumstances;
423 Some of the mistakes of the previous stages can be identified and corrected by the court at the stage of sentence execution, but this issue is beyond the scope of our study.
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–functional homogeneity of cassation and supervision;
–revision procedure for all types of review of the trial court decisions;
–the binding force of guiding explanations of the court of a higher instance.
The peculiarity of judicial review and judicial supervision in Russian criminal proceedings is determined by the characteristics of the technical organization (continental due to the historical form thereof) of Russian judicial proceedings. However, it mainly concerns the jury court and the role of guiding explanations of the highest court (if not to take into account, most likely temporary, coexistence of two homogeneous functions – cassation and supervision). Overall, therefore, the construction of Russian judicial proceedings has significant similarities to the classic continental model with its inherent mechanism of eliminating errors, the development of which should be carried out in the framework of the following models: ‘the model of the active first instance court’,
‘the model of comprehensive appeal’, ‘the model comprehensive cassation and supervision’, ‘a comprehensive investigation model of proceedings for new and newly discovered circumstances’.
§1. The elimination of errors through the court of the first instance proceedings
At the initial stage of the research of investigative errors, the author, as well as a number of other legal scholars, attached great importance to the role of the court in filling the gaps of the preliminary investigation of the criminal case without referring the case for further investigation424. In the Soviet and post-Soviet period pursuant to Art. 20 of the Code of Criminal Procedure of the RSFSR, on the one hand, it was easy to refer the case for further investigation due to incompleteness and one-sidedness of establishing the circumstances of the case, which in practice was done, sometimes, many times in the same criminal case, but, on the other hand, the prosecutor could always appeal against the court's decision to refer the case for further investigation on the grounds that the court itself did not take sufficient efforts to fill the gaps of the preliminary investigation.
According to the requirements of the Code of Criminal Procedure of the RSFSR, the court itself was to read the indictment at the beginning of the trial; it was the court, including in order to fill the gaps of the preliminary investigation, that was the first to interrogate the defendant, the victim, witnesses, not divided into prosecution and defense witnesses; could on its own initiative
424 Nazarov A.D. On rectifying preliminary investigation gaps during the court hearing // Issues of criminal procedure and criminology. Coll. of acad. papers. M., 1988. p.28–34; Nazarov A.D. Rectifying investigative errors in court in light of criminal procedural law reform // Issues of ensuring legitimacy and crime control. M-Kemerovo, 1997, p. 165–168; Nazarov A.D. Rectifying investigative errors in court // Current issues of law enforcement in light of the new Criminal Code of the Russian Federation adoption. Krasnoyarsk, 1997, p.96–99; Nazarov A.D. On rectifying preliminary investigation gaps during the court hearing // Issues of criminal procedure and criminology. Coll. of acad. papers. M., 1988. p.67–68.
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to undertake any legal action (call new witnesses, appoint forensic examinations, etc.), determine a conviction, even if the prosecutor dropped the charges, qualify the offense the defendant differently from the qualification that the court was offered by the prosecutor; could on its own initiative initiate criminal proceedings, to send the case back for further investigation, etc.
Certainly, there were given recommendations that the court clearly did not have to do what should have been done in a criminal case only in the preliminary investigation. Specifically, the court should not have been involved in the collection and examination of evidence, if he had to look for new evidence, that is, perform the unusual for it investigation function; if it was necessary to collect and analyze a large amount of new evidence; if it was necessary to make such investigations which are impossible or difficult to be carried out in a trial (search, seizure, etc.)425.
It should be noted that it is almost to the above scheme that the Investigative Committee of Russia offers to return in the proposed initiative on the draft law on the institution of objective truth.
Many scientists-processualists, although not offering to restore the former authority of the court in full scale, are in favor of its active mission in a public trial.
A.S. Barabash believes that the court is assigned the function of justice, therefore, the court must be active426. In the figurative expression by A.D. Boykov, an anemic court is anemic power where the greed and tyranny of the strong blooms not the rule of law427.
M.K. Sviridov is also in favour of the active court428.
According to V.I. Zazhitskiy, the adversarial principle does not leave room for many important landmarks that have traditionally been used in the criminal procedure legislation of Russia and have been used successfully in the mixed criminal proceedings of civilized countries – the public nature of criminal justice, comprehensiveness, completeness and objectivity of the investigation of the criminal case, the truth, the active role of the court in its detection, etc. Complete elimination or significant belittling of these major categories of the system designed to ensure the effectiveness of judicial and investigative practice is one of significant methodological mistakes, which can not be justified by any arguments429.
The supporter of the adversarial trial A.V. Smirnov believes that ‘the question of the court activity is not related to the type of criminal procedure – adversarial or investigative and
425Veretehin E.G. Preliminary investigation shortcomings and rectifying them… p.8; Petuhovsky A. Filling in the gaps of the investigation in court// the Soviet justice. 1973. № 15. p. 18.
426Barabash A.S. State bodies functions in Russian public criminal trial // Legal policy and legal life. 2009. №4. P.172–179; Barabash A.S. The nature of Russian criminal proceedings…
427Boykov A.D. The third power in Russia P. 66.
428Sviridov M.K. The court as the subject of establishing the truth in Russian criminal proceedings // Siberian legal notes: Annual book of the Law Schools Association ‘Siberia’. Issue 1, Krasnoyarsk, 2001. P.138–139.
429Zazhitsky V.I. Problems of increasing the efficiency of criminal justice // the State and Law. 2009. №7. P.38.
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inquisitorial – and belongs to the very essence of justice; ... adversarial construction of the criminal trial does not exclude the activity of the court in the examination of evidence’430.
A number of scientists-processualists (A.D. Boykov, Z.Z. Zinatullin et al.) defined, as a compromise, the position that the court should be active not at gathering but when checking evidence431. And it should use all possible means.
In this regard, the original position is proposed by V.V Vasin: the court must ‘make up for the absence of possibilities of the defense to form its evidence base, equal to or comparable with the possibilities of the prosecution, by developing its own activity aimed at gathering evidence in order to verify the position (reasons) of the defense ...; there should be the rule operating on the impossibility of the defendant's position worsening compared to the one deriving from the accusation against him, based on the evidence of guilt, with which he was familiarized at the end of the preliminary investigation ... – this implies the need to establish in the Code of Criminal Procedure of the RF the ban on both the court and the prosecution collecting in the trial new information that may degrade or worsen the position of the defendant’432.
I.Y. Foinitskiy at the beginning of the last century wrote that ‘the role of the criminal judge in the trial is not passive: it on its own initiative may summon witnesses and require other evidence; it will remind the defendant of the right to give his explanations and to present objections; being called upon once to adjudicate the case, it is to decide it fairly, on the basis of all the available material in the case’433.
Y.K. Orlov rightly notes that ‘... it is impossible to turn the court into an impartial arbitrator, defining the winner in the dispute. Still, the criminal trial is not wrestling where the task of the arbitrators is to determine the strongest. The aim of proof should be the truth and not awarding a prize to the winning side. Therefore, the court should keep the duty to take all possible measures to establish the truth’434.
V.A. Sementsov, I.I. Belohortov, referring to the position of L.A. Voskobitova, talk about the court activity giving the court an active role in the proving activity435.
The position of scientists who share the idea of the court activity during the verification of evidence seems convincing. It is shared by the Constitutional Court of the Russian Federation. Its conclusion on this issue is expressed in the ruling of November 20, 2003 №451–O, which states
430Smirnov A.V. Russian criminal trial: from dusk to dawn.
431Boykov A.D. The third power in Russia. Book Two. Continued reforms. M., 2002, p. 121; Zinatullin Z.Z., Egorova T.Z., Zinatullin Z.Z. Criminal Procedure Proof. Conceptual framework. Izhevsk, 2002. P. 56; Mikhailovskaya I.B. The Judge Handbook of proof in a criminal trial. Moscow, 2008; and etc.
432Vasin V.V. No right for error: criminal procedure study of circumstances of the criminal case by the trial court: a monograph. Magadan., 2007. P.133–134.
433Foinitsky I.Y. The course of the criminal proceedings. V 1. P.64.
434Orlov Y.K. Fundamentals of the theory of evidence in criminal proceedings. M., 2000, p. 19.
435Sementsov V.A. Evaluation of evidence by the trial court in a criminal case: a monograph. M., 2012.
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that the implementation of the court in the public by its nature criminal trial the function of justice assumes legal empowerment of the right to verify and assess in terms of relevance, admissibility and reliability the evidence presented by the prosecution and the defense in terms of establishing their sources and comparing with other evidence in the criminal case or represented by the parties in the hearing, and through the investigation within the charge against the defendant and other evidence supporting or refuting the evidence verifiable by the court. The Constitutional Court of the Russian Federation considers this right as a precondition for making the decision rightly436.
In the ruling of June 18, 2004 №204–O the Constitutional Court of the RF also pointed out that the court's decision on obtaining evidence designed to test the existing evidence in the case is not contrary to the principle of adversariality437.
In our view, it is an active court that has all the procedural ability to identify, correct and prevent errors in criminal proceedings (investigative, judicial).
At the same time, scientists talk about certain ‘limiters’ of this activity in the modern criminal judicial proceedings.
V.A. Lazarev noted that excessive activity of the court, as well as passive adversariality, bring dangerous consequences438.
The court must be active, as indicates N.I. Gazetdinov, in the examination of evidence, but in the framework of the evidence submitted by the parties both in pretrial proceedings and in court proceedings. He believes that the court should not take the initiative for the collection of evidence, and the powers of the court, which under the current law entitle the court with its own initiative to collect evidence, should be excluded from the Code of Criminal Procedure. And, moreover, the Criminal Procedure Law should, in his opinion, include the prohibition for the court to gather evidence independently439.
L.A. Voskobitova offers, in case of insufficiency of the evidence to solve the case on the merits, to introduce the legal procedure where the court has the right to establish the deadline for submission of additional evidence for the parties440.
436The ruling of the Constitutional Court of the RF on the refusal to accept for consideration complaints of Sergey Vladimirovich Vekker with regard to the violation of his constitutional rights under Articles 86, 87, 235, 252of the CCP of the RF № 451–O of November 20, 2003. [electronic source] // The Constitution Court of the RF site. access: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision30848.pdf (date of reference 06.03.2016).
437The ruling of the Constitutional Court of the RF on the refusal to accept for consideration complaints of Tsogta Ntsagdorzhevich Budaev with regard to the violation of his constitutional rights under p.2 Article 283 of the Criminal Procedure Court of the RF № 451–O of 18 June, 2004. [electronic source] // The Constitution Court of the RF site. access: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision33477.pdf (date of reference 06.03.2016).
438Lazareva V.A. The judiciary and the realization thereof in the criminal process. Samara, 2000, p. 125 – 127.
439Gazetdinov N.I. The role of the court in adversarial proceedings // Russian judge. 2007. №11. p. 40-42.
440Voskobitova L.A. The mechanism of realization of the judicial power through criminal proceedings: Abs. Dis. for Dr. Jurid. Sciences. Moscow, 2004, p. 48.
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The position above, each in its own way offers to restrict the activity of the court, which seems interesting but to certain extent are controversial and ambiguous. In our opinion, it is necessary to agree with the position of N.P. Kirillova, who believes that if the court activity in the request of evidence by means of judicial proceedings is intended to review and assess the evidence, these activities should be regarded as an appropriate adversarial principle. In the case where the activity of the court is to establish the evidence the base for the prosecution or the defense, and to strengthen their position, the activity is not consistent with the principle of adversariality441.
In response to the question of how to assess whether the actions of the court requesting the evidence, initiating a legal action are legitimate and what the purpose of the court is, N.P. Kirillova rightly points out that the assessment of the actions of the court in the process of proving is to be given by a higher court, considering complaints and petitions in the particular circumstances of the criminal case.
The body responsible for the legality of the decision may not be deprived of the opportunity to establish the factual basis for the decision. The judge must have the tools to establish qualitative factual basis. Two tools are given to the court to establish the facts of the case. The first one is the parties stating the factual circumstances of the case and presenting evidence to support their allegations. The evidence submitted by the parties, studied in the court proceedings, gives the court a lot of information about the actual circumstances of the case. The court does not substitute the parties and creates all necessary conditions so that they can present to the court all they consider necessary and meaningful.
However, evidentiary activities of the parties may not be enough for the court, so the court is given the second instrument – its own cognitive activity. The evidence submitted by the parties is necessary to be investigated, tested and evaluated. And if in the process of checking, the court doubts the authenticity of evidence, if it sees conflict, it is to be addressed to make the right, legal solution, of course, the court will independently collect the evidence necessary for its decision. And you can not limit its power to review in any way. In this sense, it should be recognized that in art. 15 of the Code of Criminal Procedure of the RF the function of adjudicating the case is not very well articulated. The actually cognitive powers of the court are not addressed, and this creates a false idea that the role of the court in the performance of this function is only in organizing and ensuring the rights of the parties. Without the cognitive activity of court, the case can not be adjudicated, but the text that enshrines the function in the law, does not disclose its substantive meaning.
441 Kirillova N.P. The role of the court in the process of proof in a criminal case // ‘Black Holes’ in the Russian legislation. 2008. №2. P. 217; a similar position is taken by V.L. Budnikov, see: Budnikov V.L. Participation of the court in criminal procedure proving // Russian judge. 2006. №11. P. 13-16.
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The Consitutional Court of the Russian Federation in 2003 in its ruling noted that
‘gathering of evidence is not only the prerogative of the parties but also among the powers of the court implemented in the order established by the criminal procedural legislation for the judicial investigation’442.
The analysis of the court authority in the course of the trial shows that the legislature gave the court the possibility to collect evidence. For example, the court has the right to question witnesses after their interrogation by the parties. With respect to some investigative actions, the legislator expressly stated that they could be carried out on the initiative of the court. Law enforcement nature of the activities of the court implies that the court should have the right to request the parties to eliminate or resolve the question or on its own initiative to carry out judicial investigations independently and eliminate the doubts it might have.
The effective use by the court of the ‘active’ authority allows timely identification, correction and prevention of errors in criminal cases made by the investigator, the prosecutor and by the court.
Another approach is required if there is a question about the incomplete and one-sided examination on the merits. What should be done if the court does not have enough evidence, and the parties are passive; if the parties argue about the facts, but do not confirm their arguments with evidence; if the parties do not pay attention to the individual facts of legal significance for the proper resolution of the case? These issues require legislative regulation, because now in the Code of Criminal Procedure there are no responses to them. It is possible that the power of the court should be expanded in the court proceedings and possible to grant it the right to, not substituting the party, encourage them to take active steps. For example, permit the court to require the parties to provide additional evidence if the evidence presented is not sufficient for the recognition of the facts established. The court could adjourn the hearing and give the parties a certain time for the preparation and application of appropriate requests, writs to additional witnesses, experts or submission of additional documents. Such actions could be recommended to judges now in order to purposefully form such practice. Such court activity could, for example, paid attention to by the Plenum of the Supreme Court of the RF in the directive Ordinance. Such practice is not contrary to the Criminal Procedure Code of the Russian Federation and does not even require special additions or amendments to the law. It is only necessary to correctly understand the content of
442 The ruling of the Constitutional Court of the RF on the refusal to accept for consideration the request of the Boksitogorsky court of the Leningrad Region to review the constitutionality of part 1 Article 86 of the Russian Federation Code of Criminal Procedure.’ №104 of March 6, 2003, [electronic source] // The Constitution Court of the RF site. access: Adobe Acrobat Reader. URL: http://doc.ksrf.ru/decision/KSRFDecision33477.pdf (date of reference 06.02.2017).