nazarov-a-d_disser

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In the context of elimination of errors the dissertation study has developed a ‘model of

comprehensive appeal’.

In this model:

–all witnesses presented to the court by the parties of criminal proceedings are to be questioned during the court hearing;

–all the motions of the parties are to be reasonably, lawfully and justly adjudicated.

The author of the study has rationalized his proposal to transform the second instance in accordance with the developed ‘model of comprehensive appeal’ granting the interested parties the right to the comprehensive (on all grounds) second revision of the criminal case with ‘the second judicial investigation’ where there is no ‘cassation syndrome’ (the judicial investigation proceeds without haste, fully and comprehensively).

The author has developed ‘a model of comprehensive appeal and supervision’ which includes the following essential elements:

–the possibility of the supervisory-cassation proceedings to be initiated not only by the parties to a criminal trial, but by the presiding judges (deputy presiding judges) of the courts of the Federation subjects and the courts corresponding to their level and the Supreme Court, with respect to the specificity of supervision and control proceedings, designed to consider not ‘questions of fact’ but ‘questions of law’, moreover, questions of fundamental violations of the law;

–the duty of officials involved in the orbit of the supervisory-cassation activities (experts, assistant judges, the judges of the Federation subject courts and the Supreme Court of the Russian Federation) to study not only the cassation and supervisory complaints and petitions from the parties and materials attached to these petitions, but criminal cases too, including the audio-video recordings of the hearings of the case.

–the duty of judges to make their final ‘exemption’ decisions reasonably: for every

argument of the complaint submitted by the participants of the trial to give detailed arguments based on the materials of criminal cases studied.

The study proposes to implement all the elements of their ‘comprehensive model’ in the existing cassation and supervision.

In the study there has been developed ‘a comprehensive investigation model of

proceedings for new and newly discovered circumstances’ implying a broad definition of ‘new circumstances’ (any judicial errors which led to an unjust judicial decision, including ignoring of the evidence collected in the case, an erroneous assessment thereof, incorrect application of the criminal law) and allowing the investigation procedure of checking the new circumstances in the case.

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It is proposed to reform the existing procedure for new and newly discovered circumstances in accordance with its ‘comprehensive investigative model’.

In recent decades, the legislator has been improving the procedural mechanisms of judicial review and revision. The appeal, introduced after the creation of the global justice, in the light of the recent legislative developments has undergone significant modernization and become applicable in the consideration of all criminal cases. Accordingly, the procedural structures of cassation, supervision and proceedings for new and newly discovered circumstances have recently received new features in their strategical meaning. The strategic objectives of modifying the control and revision judicial structures include improving the efficiency of court procedures to achieve the purpose of criminal proceedings, including, for the improvement of the institutional and procedural mechanism to identify, correct and prevent errors occurring in the administration of justice in criminal cases.

The main subject conducting criminal proceedings in court instances is the court. It is the court that, primarily, detects, corrects and prevents errors in the criminal case. Yet another significant role of the court instances is the detection, prevention and correction of errors of other participants in criminal proceedings, especially, of professional participants – the prosecutor, the defense lawyer. In the modern model of adversarial criminal trial, the prosecutor, as the public procurator, when detecting errors, may offer the court to change the qualification of the act to a more lenient one; completely or partially abandon the charges. And the court may not reject these prosecutor’s proposals – it is obliged to accept them and to make a decision on the case in accordance with them, even if internally it does not agree with these proposals of the prosecutor. In all other issues professional participants of the proceedings are guided by the powers of the parties; errors identified by them are eliminated through the court performing necessary procedural actions.

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

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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.

To conclude, the proposed herein concept of elimination of investigative and judicial errors promotes the study of the phenomenon of these errors, the mechanisms of their elimination, and strengthening of the legal regime in the Russian Federation.

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REFERENCES

The Regulatory Legal Acts, The Drafts Of Statutory And Regulatory Enactments And