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biased approach to investigation of the criminal case circumstances amounted to 57.0% of the total number of errors; b) errors expressed in non-observance in the criminal trial of the constitutional human and civil rights and freedoms, as well as international standards of criminal justice (fair trial) amounted to 8.0%; c) errors, expressed in significant violations of the criminal procedural law amounted to 16.0%; g) errors expressed in wrong application of the criminal law amounted to 19.0%.

The research identified the structure of miscarriages of justice in the following ranking: a) incorrect application of the criminal law (70.92%); b) sentence injustice (3.22%); d) violation of the criminal procedural law (20.86%); e) inconsistency of the court conclusions outlined in the judgment with the factual circumstances of the case established by the court of the first instance, of the appeal, cassation instances (5.0%).

The study of the structure of investigative and judicial errors has given the author an opportunity to trace the dynamics of errors and build effective mechanisms for their forecast and elimination.

In the study of the phenomenon of investigative and judicial errors, the causes of these errors (largely determining the criminal procedural mechanism to eliminate them) were ranked at three levels:

–immediate causes characterizing the shortcomings in the investigation and trial of specific criminal cases (the first level causes);

–causes of investigative and judicial errors related to the activity of the investigator and the judge, the personality of the investigator and the judge, i.e. subjective reasons, and the conditions in which the activity takes place, i.e. objective reasons (the second level causes, or ‘the causes of the first level causes’);

–factors determining the first and second level causes and related to conditions for the activities of the preliminary investigation and the judicial system as a whole in Russia (the third level causes).

Moreover, the causes of investigative and judicial errors are classified according to the

scheme ‘the case – the investigator, the judge – investigating apparatus, the judicial system’ allowing them to be explored deeply and to scientifically substantiate the recommendations for neutralizing the effect of these causes.

The phenomenon of the error in criminal proceedings is closely connected with the criminal policy processes in the state. Errors in the criminal procedural activity of state officials, like, actually, the crimes committed by them in the service and other crimes, have a negative impact on the implementation of the state policy in the criminal justice. Accordingly, among the public and political activities there are many which are aimed at eliminating errors and crimes of subjects

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conducting criminal proceedings to ensure the proper legitimacy in the administration of justice in criminal cases.

The criminal policy has a direct influence on achieving the purpose of criminal proceedings (Article 6 of the Code of Criminal Procedure of the RF) and adhering to the principles of criminal proceedings, first of all, the principle of legitimacy (Article 7 of the Code of criminal Procedure of the RF). The study finds that the direction of the modern criminal policy is to the liberalization thereof.

However, despite the liberal-democratic tendencies in the development of the modern criminal and criminal procedure policy, criminal recent events have put strengthening of the crime control and fight with terrorism and corruption; crimes related to drug trafficking; sexual abuse of children; etc. into the priorities of this policy.

The study applied a strategic approach to the concept of eliminating errors. In the context of the problem of errors in criminal proceeding the following two general strategies have appeared to be of particular interest: the strategy of criminal prosecution and the strategy of protection of the rights and freedoms of the accused. These criminal and political strategies are important elements of a coherent criminal policy. The characteristic of general criminal policy strategies is permanently explained through the goal and the principles of criminal proceedings, as well as through the current political and ideological objectives which are stipulated by authoritative organs of the state. Common criminal policy strategies for ensuring the legitimacy regime in the administration of justice in criminal cases involve, for criminal justice agencies for the purpose of eliminating investigative and judicial errors, functioning of certain institutional legal mechanisms, including criminal procedural mechanisms. The study shows that the concerted action of criminal procedural mechanisms (pre-trial control and supervision – judicial review, prosecutor's supervision, institutional control, judicial verification and inspection – the referral of a criminal case to the prosecutor for the removal of obstacles to hearing it in court, declaring the evidence inadmissible, acquittal sentence, etc.) may effectively predict, detect, correct and prevent investigative and judicial errors in criminal procedural activity.

The study emphasizes that the strategy of protection is a priority and involves various levels of the implementation of human rights in criminal proceedings. These are:

–protection on the part of subjects conducting criminal proceedings (the prosecutor, the investigator, the head of the investigative body, the inquiry agency, the chief of the inquiry unit, the inquirer);

–the protection on the part of persons who do not conduct criminal proceedings (lawyers and other persons);

–self-representation.

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b) The mechanism of facilitation to error elimination on the part of the defense lawyer and other subjects.

The mechanism of control and supervisory activities for error elimination at the pre-trial stages of criminal proceedings includes judicial review, the prosecutor's supervision and institutional control.

The judicial mechanism of error elimination consists of judicial review of the criminal case and judicial supervision.

The judicial review of the criminal case comprises adjudicating the case and its resolution on the merits in the court of the first instance and appeal instance. Moreover, judicial examination in the trial court does not have a specifically defined (assigned) goal of eliminating errors meaningfully defining and co-organizing all activities at this stage of proceedings (although objectively supposing identifying, correcting and preventing errors).

Judicial supervision is a review by higher courts of judgments of lower courts under cassation procedure, supervisory procedure (judicial inspection), with the higher court providing clarifying directives to lower courts and other law enforcers on the issues of criminal proceedings. Reopening cases due to new and newly discovered circumstances is also connected with judicial review.

Accessorial mechanisms (though they are essential) are sort of ‘embedded’ in the criminal procedural activity in general and may therefore only be considered as conditions facilitating the normal conduct of criminal proceedings through inner self-scrutiny (self-test) or external participation (assistance), including in the framework of the main mechanisms.

The mechanism of controlling and supervisory activity of elimination of investigative errors in Russian pre-trial proceedings in criminal cases is notably different from similar mechanisms in other states.

The specificity of this mechanism is determined by the technical features of the organization (which is continental according to its historical form) of Russian pre-trial proceedings as a whole. In contrast to the German type of such organization, Russian pre-trial proceedings do not have the prosecutorial sovereignty over the investigation and is characterized by the separation of functions between the inquiry and the preliminary investigation, the prosecutor's supervision over the whole investigation and the prosecutor's sovereign guidance only of the inquiry. In contrast to the French type, they do not have judicial preliminary investigation, which is structured on the principle of instances (with no prosecutorial control and almost complete absence of external judicial control).

If the current institution of judicial review is studied from the point of view of its social importance, it is worth noting that it corresponds to the world practice of judicial authorization of

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activities related to the restriction of constitutional rights and freedoms of an individual in criminal proceedings, and the judicial procedure for such authorization, to a greater extent than the prosecution and institutional procedures, is democratic and transparent (the procedure of the court session with the participation of the parties, court hearing records, etc.).

Consequently, the institute of judicial review should be maintained, developed, at the same time strengthening the institute of the prosecutor’s supervision.

The notion of judicial review only applies to the verification activities of the court at pretrial stages of criminal proceedings and listing of the court hearing. Judicial review applies to a relatively limited number of investigative and other procedural actions and reduced to the judicial review of the legality and validity of these actions affecting the constitutional rights of an individual.

Based upon the provisions of the Constitution of the RF, the study has identified three main types of judicial review at the pre-trial stages of criminal proceedings and names them (with a certain degree of conditionality) ‘arrest control’, ‘procedural control’ and ‘complaints control’.

The judicial review in the criminal trial (in the context of the error elimination) is developed in the study as ‘a model of dynamic judicial review’ of the pre-trial proceedings, i.e. a model that is constantly being improved and is procedurally significant to ensure observance of the constitutional human and civil rights and freedoms in criminal proceedings. This model will:

– expand the jurisdiction of judicial review by introducing new types thereof: ‘evidence deposit’, i.e. legalization of a limited, and in clearly defined cases, number of certain evidence at pre-trial stages, and ‘pre-trial supervision’, i.e., especially significant for proof and hearing of a criminal case on the merits, control activities at the stage of listing of the court session (determining at the preliminary hearing decisions with regard to a preventive restrictive measure for the defendant, admissibility of evidence collected in the case, jury trial, a panel of three judges, a single judge, under a special procedure, etc.);

– toughen the requirements for ‘arrest’ control (collecting, checking and evaluation of specifically evidence with regard to the reasonableness of the suspicion of the suspect and the accused in the acts incriminated and his conduct in the course of criminal proceedings);

– reform the ‘procedural’ control and ‘complaints control’: transfer from the court to the prosecutor some review and supervisory powers, thus reinforcing the existing control – the original

‘public prosecutor's approval’ of investigative and other procedural actions provided for in Art.

165 of the Code of Criminal Procedure of the RF, with the possibility of further appeal the prosecutor’s decisions with regard to these matters to the court in compliance with Article 125 of the Criminal Procedure Code of the Russian Federation;

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– not limit the effect of ‘complaints control’ (for example, will allow to appeal the decision to prosecute a defendant and so forth.).

The study proposes to reform the current judicial review in accordance with the developed

‘model of dynamic judicial review’ over pre-trial proceedings, as well as to improve the organizational structure of judicial activities in the preliminary investigation control (primarily, a certain separation of these judges from federal judges hearing criminal case on the merits, as well as under appeal procedure).

To minimize errors of the investigator, the inquirer, the prosecutor, the court when determining a preventive restrictive measure of detention, or the extension of their detention periods, for the suspect, the accused, the defendant, the study proposes to introduce amendments into the Code of Criminal Procedure of the RF, giving articles 97, 99 the following wording:

“Article 97. Grounds for determining a preventive restrictive measure.

2. The inquirer, the investigator, and the court within the bounds of the powers granted, are entitled to determine one of the preventive restrictive measures provided for in this Code for the accused, the suspect, if there is sufficient evidence giving grounds to reasonably suspect the person in the act incriminated and believe that the accused, the suspect:

1)abscond from the inquiry, investigation or trial;

2)may continue to engage in criminal activity;

3)may threaten a witness or other parties to the criminal proceedings, destroy evidence or

otherwise obstruct criminal proceedings.”

“Article 99. Circumstances to be considered when determining a preventive restrictive

measure.

The court within the powers granted thereto may study the materials of the criminal case

when determining a preventive restrictive measure.

When deciding on the need to determine a preventive restrictive measure for the suspected or accused of committing a crime and determining the type thereof subject to the grounds provided for in Article 97 of this Code, legitimate and reasonable qualification of the act incriminated

to the alleged suspect or the accused acts and, accordingly, the severity of this crime, information about the identity of the suspect or the accused, his age, health, marital status, occupation and other circumstances.”

It is proposed to amend and alter Article 108 of the Code of Criminal Procedure of the RF

‘Detention’ as follows:

To supplement Part 1 after the first sentence (from the words – ‘measures of preventive restriction’) with a new sentence: “The detention to a person prosecuted for the first time is

applied only in the case of proven violations of the conditions of house arrest, bail or other

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less stringent measure of preventive restriction, except cases of criminal responsibility for grave and especially grave crimes against the person, as well as the crimes set forth in article 100 of this Code where it is necessary to take into account the nature of the act incriminated to him and the personal data”.

In Part 1 the words ‘factual circumstances’ to be replaced with the word ‘evidence’.

In Part 3, instead of the word ‘materials’ to use the phrase ‘criminal case materials’.

Article 63 of the Criminal Procedure Code of the Russian Federation ‘Prohibition of re-

engagement of the judge in the criminal case’ to be supplemented with part 4 as follows:

4. ‘The judge who made a decision on the detention of the suspect or the accused, the house arrest, an extension of detention and house arrest at the pre-trial stage, considered the appeal, cassation or supervisory complaints or motions for the detention, house arrest, an extension of the detention and the house arrest at the pre-trial stage, may not participate in consideration on the merits of the case in the court of the first and second instance or under the cassation and supervision.”

In the context of eradicating prosecutorial bias in the activities of the court the following norms enshrined in the law are already effective:

– changing of the qualification of act of the defendant by the prosecutor for a less serious one entails a mandatory application of this ‘lenient’ qualification of the crime incriminated (Article

246 of the Code of Criminal Procedure of the RF) by the court which is considering a criminal case;

–the prosecutor's refusal to press charges entails the compulsory acquittal or termination of criminal prosecution (Articles 239, 246 of the Code of Criminal Procedure of the RF) by the court which is considering a criminal case.

In the further struggle with the prosecutorial bias it is proposed to set forth two more rules:

–if the prosecutor offers the court a specific type and amount of penalty, the court may not determine more stringent type and amount of penalty;

–if the prosecutor offers the court not to detain the accused or not to extend the term of his detention, the court may not detain the accused or not to extend the term of his detention. Accordingly, in paragraph 7 Article 108 of the Criminal Procedure Code of the Russian Federation it is proposed to add the second part:

“If the prosecutor participating in the hearing offers the court not to detain the suspect, the accused or not to extend the period of detention, the judge may not detain the suspect, the accused or extend the period of detention and further adjudicate in compliance with the provisions of Article 7-1 of the Code of Criminal Procedure of the RF.”

In the context of international legal standards for fair trial it is proposed to keep within the court’s authority the ‘classical’ decisions with regard to the inspection of dwelling without the consent of

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the residents thereof, the search and (or) withdrawal warrant, the monitoring and recording of telephone and other conversations. The approval for the performance of other investigative and procedural actions referred to in Article 165 in the context of Article 29 of the Code of Criminal Procedure of the RF is to be granted by the prosecutor. And this is not just the replacement of judicial review for the prosecutor supervision: it is strengthening of both judicial review and the prosecutor's supervision, as in this case the decision of the prosecutor may be appealed by the parties involved in criminal proceedings to a senior prosecutor (in compliance with article 124 of the Criminal Procedure Code of the Russian Federation) or the court (in compliance with article 125 of the Criminal Procedure Code of the Russian Federation). Moreover, there is every reason to believe that these proposed novelties in the criminal procedure legislation will allow more effectively identify, correct and prevent errors in criminal cases.

In the context of eliminating errors the author has developed a ‘model of permanent prosecutorial supervision’ over initiation of criminal cases and their preliminary investigation: the permanence involves continuous (constant) procedural control of the implementation of the criminal prosecution by the prosecutor.

This model includes a number of features: an objective necessity and historical conditionality of the prosecutor's supervision; non-departmental and comprehensive prosecutor's supervision; permanence of prosecutorial supervision granting the prosecutor the powers of the head of criminal prosecution; ‘pretrial’ nature of prosecutorial supervision and restrictions for the prosecutor in a limited range of final decisions.

‘The model of permanent prosecutor's supervision’ has a priority in control and supervisory activities during pre-trial proceedings in a criminal case. It effectively allows one to implement strategies of criminal prosecution and protection of human rights. As the leader of the prosecution, the prosecutor should have, in addition to the ones already granted to him, power and authority to initiate such prosecution, to overrule all illegal decisions of the investigator, to prolong the preliminary investigation, to approve (as a guarantee of legitimacy) the implementation of procedural actions, encroaching on constitutional rights and freedoms of the man and the citizen, to press final charges to a person, to terminate the criminal prosecution, and so forth.

Under this model of the prosecutor's supervision, it is possible to legislatively transfer some powers of the court at the pretrial stages of criminal proceedings to the prosecutor. Under this model, for example, without the consent of the prosecutor, the investigator would not file with the court petitions relating to such preventive restrictive measures as the detention, house arrest, etc.

The definition ‘institutional control’ is presented as two important components thereof: procedure control regulated by the provisions of the Code of Criminal Procedure of the RF and

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other institutional control regulated by departmental regulations and established practice, including the organizational and administrative management of the investigator activity.

The institutional control over initiating criminal cases and preliminary investigation (in the context of error elimination) is shown through the ‘model of heteropolar institutional control’ as specific control and surveillance activities with various formats of such control at the low (city, district and settlements equivalent thereto) and high (Federation subject and the ones equivalent thereto) levels of investigative activity.

Heteropolar nature of such institutional control implies including elements of mentoring and personnel training with them being implemented under the supervision of the prosecutor's office and expressed in the procedural and administrative activity of the head of the investigative agency.

Institutional control (along with the prosecutorial supervision) operates permanently throughout pre-trial proceedings. At the low level of investigative units it allows the seniors of investigative agencies to totally control criminal procedural activities of investigators (especially of those who are just beginning their investigatory careers). At other (higher) levels of investigative agencies it allows to reasonably combine (without ‘total control regime’) institutional control with the procedural independence of the investigator. Moreover, institutional control interacts with judicial supervision and the prosecutor's supervision and depends on them to a certain extent.

It is only under such conditions that institutional control may:

-successfully identify, correct and prevent errors in the pre-trial investigation;

-minimize the risk of their own errors (errors of the heads of investigative agencies);

-to achieve the strategic objectives of criminal prosecution and protection of the human

rights.

The study presents 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);

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–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;

–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’.

This thesis research focuses on the fact that the court of the first instance administrating justice in criminal cases in the usual ‘regular’ regime with adherence to the procedural norms and principles of criminal proceedings has all procedural possibilities under the current legislation to strictly fulfill the purpose of criminal proceedings, including at the same time, if necessary, to achieve the special purpose of criminal proceedings – to identify, correct and prevent investigative errors.

The administration of justice in criminal cases is presented in the study (in the context of the elimination of errors) by ‘the model of active court’ where both the court itself and the prosecutor are active in the complete, comprehensive and objective establishment of the material truth in a criminal case using the provided by the criminal procedural law powers for declaring evidence inadmissible, determining acquittals, referring a criminal case to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure of the RF, etc. This model is focused on the priority of the collegial hearing of the criminal case by a jury court or a panel of professional judges (in the first place – for particularly complex, with many elements, high-volume cases), hearing under the ordinary, not special, procedure with audio-video recording of the trial. It is this

‘model of the active court’ that will allow, firstly, to minimize the number of judicial errors and, secondly, to efficiently and effectively detect, correct and prevent investigative errors.