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It is difficult to compare the quality of the court ‘product’ of the Russian magistrates and federal judges. These judges are considering a completely different category of criminal cases. And if for the magistrates the termination of cases in connection with the reconciliation of the parties is the utmost requirement of the legislator, the federal judge is not always endure the decision to terminate it: more often he would make a guilty verdict of sentence in the case. According to expert estimates, the threshold of ‘detection’ and the elimination of investigative errors, as well as the threshold of miscarriages of justice of the magistrates and federal (regional, city and equated to the level it) judges hearing criminal cases is about the same. Of course, the federal judge of the level of the Federation with high professional qualification tailor-considering criminal cases at the first instance, including considering them in a jury trial and by the panel of professional judges objectively have a threshold of ‘detection’ and the elimination of the investigative errors higher than their counterparts-magistrates and the courts of the district, city and equivalent levels; accordingly, the threshold of judicial errors made by the federal judges and equivalent is lower than that of their counterparts and the district and municipal courts and equivalent.
According to expert estimates, as well as data contained in the various scientific studies473, the risk of increasing the error threshold in criminal cases has increased slightly due to the widespread of criminal cases, especially those related to drugs, with special procedure, including in connection with the conclusion of the prosecutor pretrial agreement on cooperation with the defendant.
The survey of practitioners confirms the expert opinions mentioned above. Thus, 72.2% of judges, 77.8% of prosecutors, 76.8% investigators and 90.2% of lawyers believe that in criminal cases with a pretrial agreement on cooperation the number of errors is the same as in other cases. 55.6% of judges, 72.2% of prosecutors, 79.5% investigators and 70.8% of lawyers believe that in criminal proceedings in a special procedure the number of errors is the same as in other cases.
In our view, the statistics mentioned above, to a certain degree indicates a risk of not detecting errors at the specific procedure of the trial: only 55.6% of judges (just over half) as the legal profession directly related to a specific procedure of the trial expressed the opinion that in this manner the number of errors is the same as for other cases; 33.3% of all judges noted that in the special procedure of the trial probability assumptions various errors increases. It is interesting to note that only 12.8% of investigators, for which, in our opinion, in the first place it is beneficial to hide their mistakes from the court, noted that the probability for errors in a specific procedure
473 See, for example: Rybalov K.A. Special order of the trial in the Russian Federation and problems of its realization. M., 2004. p.100–107; Kalugin A.G. A special procedure for the adoption of the judgment when the defendant agrees with the charges against him. Krasnoyarsk, 2006. p.143–146.
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of the trial increases, but, as noted above, 79.9% investigators claimed that the number of errors in cases considered by the court in a special procedure is the same as for other cases474. Therefore, in our opinion, in the context of the elimination of errors in criminal cases heard in a special procedure, it requires the attention from the subjects leading the process, and the parties to the trial.
The institute ща judicial pretrial agreement, as well as a special procedure of proceeding without a judicial investigation is presented in criminal proceedings of other countries.
For example, the Institute is currently regulated in detail in the Code of criminal Procedure of Germany475. But in Germany, a cooperation agreement in its final form is concluded with the defendant by the court making the appropriate protocol. In Germany, the conclusion and signing of the protocol, which has plea and his assistance to justice, is considered as an important tool for reducing court proceedings and procedural economy, to which there is a tendency of judges not to load themselves with work. But at the same time, as highlighted by German judges during the expert discussions, Germany is not interested in false confessions of guilt: the signing of this protocol is preceded by a careful study by the judge of the criminal case, and if necessary –the judicial examination of police investigators who worked on the case and the accused. To sign such a protocol for the judge s a large personal responsibility: the judge must be inwardly convinced that the confession of the accused in the commission of the act incriminated is true. The judge can not influence in any way the confession of the defendant in the commission of a crime, therefore, more often, the initiative to sign such protocols with confessions of the accused comes from a lawyer. Further procedures in Germany are similar to Russian: judicial investigation in the case is not carried out, the case against the defendant signatory is dealt with in a separate proceeding, the sentence for the defendant in this case is substantially mitigated476.
Special mechanism of detection, correction and prevention of investigative and judicial errors is institution of criminal case returned to the prosecutor to remove obstacles of its consideration by the court (Art. 237 of the Code of Criminal Procedure). It is important to analyze the relationship of the institute for the return of the criminal case for additional investigation.
The institute of further investigation has a long and interesting history477.
474Appendix №44.
475Shredder F–K., T. Ferrell Ukaz.soch. P.148–149.
476Scientific research notes that in the course of such litigation transactions in Germany – ‘in the agreement between the court and the participants to the trial, a significant role is played by conflict resolution, and the truth has faded into the background. See: Schroeder F-C. Das strafprozessuale Vorverfaren in Zentralasienzwischeninquisitorischem und adversatorischem Modell. Band 71. Frankfurt am Main, 2012. P.122.
477Trisheva A. Additional investigation: emergence and establishment. LRS ‘Consultant’; Moiseeva M.A. Historical preconditions of the institute of referral the criminal case to the prosecutor. LRS ‘Consultant.’
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This Institute has always been considered and continues to be considered an important tool for the prevention and correction of errors in the criminal proceedings. After all, the problem of low quality investigation of criminal cases can not always be solved by institutions such as the inadmissibility of evidence and acquittal478.
After repeated corrections of Article 237 of the Criminal Procedure Code of the Russian Federation the Constitutional Court of the Russian Federation and the legislator in the current version of this article set sufficiently flexible procedural mechanism to return the criminal case to the prosecutor: the specific period during which the obstacle must be removed (Part 2), removed the ban on the production of investigation (Art. 4) and the rule on the inadmissibility of evidence obtained outside the time frame established before the legislator to remove obstacles (ch. 5), and have a duty to the court to extend the detention period if required by the rules of the pretrial proceedings.
The ruling of the Constitutional Court of the Russian Federation №16–P dated July 2, 2013 enacted the courts where necessary to send the criminal case to the prosecutor for further investigation for the accused charged under a more serious crime than the one that was initially incriminated for the accused. The legislator responded almost immediately and made the relevant amendments in art. 237 of the Code of Criminal Procedure.
In the cases we studied the body of inquiry was sent to the Court of Article 115 of the Criminal Code. The representative of the victim in the criminal case, using the help of the expert in forensic medicine, gave the court his opinion, in which the expert was seriously criticized the conclusion of the medical examiner, available in the case file and made a judgment that the victim had suffered no light injury, but serious damage and that the cause of death not to asphyxia, but a head injury and brain injury. In these circumstances, despite the protests of the defense and their links to the applicable at the time art. 237 of the Code of Criminal Procedure, the court approved the request of the representative of the victim and sent the criminal case to the prosecutor on the basis of p. 1 art. 237 of the Code of Criminal Procedure to remove obstacles to its examination in court. The prosecutor subsequently sent the criminal case to the investigator; the investigator considered the case within a month, recommissioned a forensic medical examination, the accused K. was charged under Part 2 of Article 111 of the Criminal Code, introduced all the participants in the process of the case file, made a new indictment, which the prosecutor confirmed and remitted the case to the court. The Court as a result of new judicial proceedings on p.4 art.111 of the
478 Golovko L.V. The origins and prospects of the institute further investigation … P.58.
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Criminal Code of the Russian Federation recognized K. guilty and sentenced him to 7 years of imprisonment. An appeal and supervisory court upheld the conviction479.
So, even in conditions of legal uncertainty in the application of art.237 of the Criminal Code in 2005, the courts and other participants in criminal proceedings with the risk of going to a fair resolution of the complex procedurally significant situations.
Before the adoption of the Criminal Procedure Code of the Russian Federation, the main criticism of the institute of further investigation was due to the fact that the criminal case could be repeatedly returned to bodies of investigation and inquiry and further investigation on this case lasted for years. In this case the accused for a long time in detention, contrary to the requirements of Art. 46 and 55 of the Russian Constitution, Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 14 of the International Covenant on Civil and Political Rights, which enshrines the right to a trial within a reasonable time without undue delays.
It was mentioned that the investigating authorities when returning the criminal case to the prosecutor could discontinue proceedings against the accused, the case which has already been heard in the court.
The criticism was also directed at judges, who, using the procedure of additional investigation, returned to the pretrial criminal proceedings, which did not want to make decisions, especially related to the acquittal, the termination of the criminal prosecution, etc. In science, we proposed and offered various options for the modernization of an additional investigation of the Institute: to preserve the institution, adding and specify the base further investigation, their differentiation; return the case for further investigation not at the initiative of the court, but on the initiative of the parties. There have been proposals to change the powers of the prosecutor in the proceedings, namely only on his request to return the case for further investigation or to allow him to carry out investigative actions (to give instructions to their bodies of inquiry and investigation, without referring the case for further investigation), etc.480.
In the modern scientific literature there are made, in our opinion, quite interesting and useful proposals, which, on the one hand, make it possible not to conduct tedious discussions about the restoration of criminal proceedings by a court to return the lost institute of returning a criminal case for additional investigation and, on the other hand, are trying to use the incumbent institution
479The criminal case №19–143 heard by Rybinsk District Court of Krasnoyarsk Territory in 2005. The defense lawyer dossier of the author, A.D. Nazarov.
480Zakhozhiy L. Improve the institute of further investigation // S.Z. – 1986. – №3. – P.61; Khalikov A. Further investigation – ‘for’ and ‘against’ // Legality. 1999. №11. P.33; Himicheva G. Referral of cases for further investigation // S.Z. 2000. №8. P.40–41; Trifonova K.A. The Legal Institute of referral the criminal case for additional investigation. M., 2014.
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under art.237 of the Code of Criminal Procedure, in the context of the position of the Constitutional Court and the Supreme Court.
Thus, according to T.V. Kuryahovoy481, undue delays could be avoided if a criminal case will be is attributed to the court and only the court is entitled to establish and extend the elimination of violations, depending on specific situations. T.V. Kuryahova believes that once directed to the court a criminal case should be resolved by the court. Even if the investigating authorities or the prosecutor, to remove the obstacles of the case violations, come to the conclusion about the need to stop production, the decision on this should be taken by the court through the procedure of refusal of the public prosecutor of the charges. This approach in an open trial will provide the publicity of acquittal in respect of illegally raised by an accused person, as well as provide an effective remedy to the victim of the unlawful termination of the case.
Moreover, if the judge making a decision on the return of the criminal case, will know that it is subsequently permitted only in the courts, then, according to T.V. Kuryahova, will decline the number of cases sent to the prosecutor due to the unwillingness make sentence.
M.E. Tokarev offers courts, using the experience of Germany, France, to suspend the proceedings with simultaneous authorities assignments, carrying out preliminary production, ‘to make the necessary investigations and other actions (not excluding the operational-search measures) to eliminate occurring gaps and violations of the law, if they can not be resolved during the trial’482.
Referring to what already noted, the institute of the criminal case by the court to return the case to the prosecutor is the problem of redistribution for the accused of a more serious charge than the original. And here are noteworthy the offers of scientists on the possibility to abandon the institution of being charged483, a minimum of interrogators and investigators, and keep only the institute of prosecution.
In many foreign countries, for example, in Germany, the charges formulated by prosecutors at the final stage of the investigation of the criminal case are sent to the court484.
If the modernization of the laying of charges leave the institute charges formulation mission to the prosecutor in the completion of the criminal investigation, then when the trial prosecutor can on a particular court procedure guarantee the defendant to ensure the right to defense, to change
481Kuryahova T.V. The referral of the criminal court case to the prosecutor // Society and law. 2009. №3ю P.218-
482Tokareva M.E. The problem of eliminating violations of the law committed by investigators in the direction by the court of criminal cases requires legislative authorization // Actual problems of criminal proceedings: questions of the theory, the legislation, the application of the practice (on the 5th anniversary of the Code of Criminal Procedure of the RF). International scientific-practical conference proceedings. M., 2007. P.466–469.
483Gavrilov B.Y. Institute of charge: current state and problems of perfection. // Russian justice. 2009. №5ю P.50-53.
484Shredder F-K., T. Ferrell. op.cit. p.118–121.
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the amount of the charges and the qualification of the act in the direction of their increase. Various options to resolve situations involving accusations turn for the worse in the trial court and return the case to the prosecutor, made by A.V. Smirnov: providing the defense time to prepare their defense to the new charge, formulated by the prosecution; an introduction to the process of following the example of the French Institute of proceedings the court orders to the bodies of the preliminary investigation, and others485.
Thus, the mechanism of correction of errors and warnings Institute returning the criminal case to the prosecutor by the court, yet as a backup tool must remain and continue to improve.
In course of our empirical research, we could not ignore the criminal case by the court to return the issue to the prosecutor for further investigation as incomplete, one-sided and bias investigation of the circumstances of the criminal case. A significant number of the judges surveyed were in favor of the revival of the institute of further investigation (88.9%); investigators (87.1%), lawyers (70.3%) and prosecutors (44.4%) stated in their replies that such an institution actually exists when the court returns the criminal case to the prosecutor for the removal of obstacles, and the prosecutor returned the case investigator for further investigation486.
Thus, based on the opinions of practitioners, from the standpoint of eliminating the investigative and judicial errors in the moment it is important to maximize the possibility of the trial, as well as to some extent settled today after many upgrades the institute of criminal cases returned prosecutor under art.237 of the Criminal Procedure Code of the RF.
Modern scientific and technological progress more insistently poses the problem of implementation of criminal justice in the criminal procedure technologies ‘e–justice’, ‘electronic criminal proceedings’, the audio-video recording of certain investigative actions on pretrial stages of the criminal process and full audio-video recording of proceedings in a criminal case, etc. At the initial stage ‘electronic criminal’ case and the audio recording could be introduced in criminal cases of grave and especially grave crimes, especially if elected as a preventive measure of detention.
Special attention is to be paid to the audio recording of proceedings of the criminal case, special in the first instance. The information base for the appeal, cassation, supervisory review of cases is the record of the hearing of the trial court. It is in the trial record as accurately as possible (given that this is not a transcript of the court hearing) should be reflected indications interrogated the defendant's trial, the victim, witnesses, experts, the results of research in the expert opinions
485Smirnov A.V. On the turn of the charges for the worse in the trial court and referral of the case to the prosecutor. [Electronic resource] // ConsultantPlus: Ref. legal system. Comments to the legislation. Electron. Data 2008. Access from the local network of the Law Institute of the Siberian Feder. Univ.
486Appendix №44.
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court documents, protocols of investigative actions, forensic evidence, action all participants in the trial.
However, the accuracy of the transcript of the hearing in many criminal cases in doubt. After all, it is the usual way (handwritten or computer) clerk of the court (judge's assistant sometimes act as secretary, adviser of the court, a trainee). Not having time to adequately record the testimony of participants in the proceedings, the court clerk records is that, in his opinion, is the most important. At the same time they are often admitted factual errors, distortions, many hours of questioning in court the trial record can fit on one or two pages. Unfortunately, the clerk of the court is often used in an invalid ‘rationalization’ approach: derived from investigators electronic version of the indictment, and take out of the hearing testimony texts protocol persons interrogated in court.
Certainly, conscientious clerk of the court record in the course of the process recorder or cell phone; then transcribe these records in making the trial transcript, which, of course, makes it the most reliable. Of course, both sides of the process, especially the defense, quite often make recordings, including, officially, sometimes even through a written request, notifying the court on your recorder course of the trial, which could then be used by them in a dispute for reliable data court session protocol (not the fact that in the event of it incomplete and unreliable data, even if a non-procedural record, it is possible to achieve correction of the trial record). Suffice it rarely Court (primarily at the request of participants in the process), the decision on the production of parts of the trial record (usually after each court session). Within three days after the verdict of the court session protocol is also not always ready. Almost always, the judge goes to the jury room without a finished transcript of the hearing, having at the hands of their rough working notes or working dictaphone records. And often, unfortunately, not a sentence corresponds to the record of the hearing and the hearing record corresponds to the sentence of the court.
Therefore highly relevant today is the question of mandatory fixed on the level of the legislature, the conduct record (do not rule out the video) of all court proceedings. The audio recording of the arbitration process as a key way of fixing the course of the court session provided for in Article 155 of CCP of the RF agribusiness. And it has become a daily common practice of the courts. Protocol on paper in arbitration is now secondary to the record. It is the same path to go, and the criminal proceedings, especially since the funds for the purchase and installation of recording equipment on state courts of justice support program stand out. It is important that the bill on compulsory jurisdiction record trials in criminal cases was quickly taken up by our Parliament, so that the absence of a minimum record of the trial would have been the absolute grounds for cancellation of judicial decisions.
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Given the modern high technologies in the age of electronics and computerization, currently it is important to talk about ‘the technologized model’ of judicial proceedings, primarily, for serious and very serious categories of crimes that would make it possible:
– to essential discipline, in all aspects, the relevant participants in criminal proceedings (the accused , victims, etc.) who now quite often submit to a higher court of appeal, cassation, supervisory their petitions understanding that these courts, especially, in the cassation and supervision, will work only with written material in the case file which the parties involved do not trust and believe that it is only their details and emotional complaint that is able to ‘make’ the higher court to take a different decision, if such persons are aware that a higher court examines not only the materials of the case, but also the necessary pieces of audio-video recordings of the hearing of the case, the attitude to appealing what is objectively recorded on audio-video media may be different, more balanced than to records of what was happening in court during the trial, which today such persons are extremely skeptical about;
–significantly objectify the activity of revision instances as the personal visual perception of the whole trial or of necessary parts thereof would help the judges of appeal, cassation and supervisory instances develop a better and more reliable approach to assessing the evidence and with greater objectivity take a legitimate and well-reasoned decision in the case.
In the context of approaches to litigation in a court of first instance designated L.V. Golovko and studied them through the prism of different models of criminal proceedings, including the continental and Anglo-Saxon, the Russian model of the trial court seems to us a special, mostly constructed in the elimination of investigative errors and avoiding their own judicial errors. This is evident, for example, in the following aspects:
–the increased importance of the victim figure who has the right to participate fully in the proceedings, including the use of qualified legal assistance of a lawyer as a representative of the victim;
–in a jury trial the presiding judge, as in the conventional process, has the right to investigative activity;
–widely allowing the special procedure of the trial (including in the context of pre–trial agreement on cooperation between the prosecutor and the accused), the legislator builds enhanced safeguards system for decision rightly solutions: a meaningful preliminary investigation, obtaining consent of the accused with against him prosecution, the accused is guaranteed the right to protection (including by the state), the ability to go in cases stipulated by law to the general procedure on the initiative of the victim, the public prosecutor and the court; grounds for cancellation of a sentence imposed in a specific order, and can be shortage of evidence of the alleged accused corpus collected in the preliminary investigation of the criminal case; the absence
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of force prejudicial judgment rendered in a special manner, including at the conclusion of the pre– trial agreement between the accused and the prosecutor.
We believe that the Court of the First Instance, sending justice in criminal matters in the usual normal mode in compliance with all legal procedures and criminal justice principles, has all procedural possibilities under the current legislation strictly fulfill purpose of criminal proceedings, including at the same time to implement, if necessary, the special purpose of criminal proceedings – to identify, correct and prevent investigative errors.
Summarizing the above, as a model departure essentially of criminal justice in the court of first instance represent ‘a model of active vessels’, in which the court itself, and professional participants of the criminal process, representing the prosecution and defense, are active in the establishment of material truth in a criminal case, considering it fully, comprehensively and objectively – with a high standard of proof the circumstances of the incriminated person socially dangerous act, using the given criminal procedural law powers for the recognition of evidence inadmissible, the imposition of acquittals, return the criminal case to the prosecutor under Art. 237 Code of Criminal Procedure, and others. Our proposed ‘model of active courts is focused on the priority of the use possibilities of the collective of the criminal proceedings (by a jury panel of professional judges), the proceedings in the ‘normal mode’ in the ordinary, not special order, litigation using audio–video. This ‘model of active courts’ will allow, first, to minimize the amount of own miscarriages of justice and secondly, efficiently and effectively to detect, correct and prevent investigative errors.
Thus, it is through the production of the first instance court in most cases should operate effectively eliminate judicial mechanism investigative errors.
§2. Elimination of errors through the proceedings in the court of appeal, cassation and supervisory authorities, as well as through the resumption of the proceedings in view of new or newly discovered evidence
As earlier written by N.N. Polanski, ‘no matter how much effort have made the courts in order to avoid mistakes in their work, is still possible in some cases, production of erroneous and unjust sentences’487.
According to the fair opinion of V.K. Slichevskiy, ‘no matter how high the guarantee, established by law in the fence justice imposes a sentence by the court, the possibility of judicial errors in their formulation can never be eliminated. Any found in the court verdict, the error did
487 Polyansky N.N. Criminal trial. Criminal Court, its structure and activities: Lectures. M., 1911. p.181.
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not only violate the interests of justice, but also create a further hazard to public interests, weakening of the criminal law’488.
I.Y. Foinitskiy noticed that the essential interests of the individual and society would find the most complete satisfaction if these proceedings may have for ends by all court proceedings: the speed of the process would be achieved in the highest measure can be carried out directly by the judicial requirements analysis, its cheapness and the inviolability of judicial decisions. However, experience has shown that the analysis of the case in one instance, in spite of all the worries about the proper building it leaves the possibility of errors in the verdict, though the court places acting apart, losing the internal unity in the understanding and application of the law, because the interests of justice are unsecured and judicial sentences cease to be an expression of the truth489.
In criminal procedural mechanism detection, correction and prevention of errors judicial audit procedures490 are an integral part.
Classically, forensic audit is conducted in criminal cases in which a judicial decision (judgment, ruling) has not entered into force and for which it entered into force. L.V. Golovko represents three important postulates in the judicial revision:
1)each criminal procedure system should provide a mechanism for review of sentences, when a court (judge) examines decisions made by another court (judge);
2)the mechanism should be the only way to correct miscarriages of justice i.e. any judicial error can be corrected only in the criminal procedure in judicial verification of production;
3)penalty review mechanism must be strictly limited and precisely both in quantity and in the temporal sense.491‘
Thus, according to L.V. Golovko, fully shared by us, in the state must be logical instance system in the form of a pyramid on top of which – the highest judicial body of the country. L.V. Golovko indicates that way to review the sentence when the sentence is reviewing the judge who issued it and, in the Russian Federation does not apply (the judge can not re-consider one case) applies only way to reformation – a verdict revised by higher court. Hence the effect of revision: the transition of authority to revise the judgment of the lower court superior492.
488Sluchevsky V.K. Textbook of the Russian criminal trial. Introduction / ed. VA .Tomsinov. M., 2008. Part 2: Legal proceedings P. 404.
489Foynitskiy I.Y. The course of criminal proceedings. In 2 v. Ed. 3rd, rev. and ext. SPb., 1910. Volume 2, p. 486–
490Use of the term ‘revision’ is due to the fact that the approach of the theory called the beginning of the revision is
the principle of ultra petita: consideration of the case ‘over the complaint’ (the court is not bound by the arguments of complaints, submissions of the parties interested and reviews the case in its entirety). This is the approach adopted in Russian appeal, cassation and supervision. See also: Golovko L.V. The course of criminal proceedings. P.1069.
491Golovko L.V. The course of the criminal proceedings. P. 1057.
492Ibid. P.1060–1061.