Elimination of investigative errors in the course of a trial

The specificity of adjudication in criminal cases can be explained by the fact that all evidence, proposals and conclusions are presented by investigators and prosecutors. Thus, any investigative error can result in some difficulties in the activity of courts and wrongful sentencing. The Criminal Procedural Code of the Russian Federation has created a special mechanism to prevent investigative errors and eliminate them in case they were made. However, legal regulation of the above mechanism is not a complete one e.g. the activity of courts in eliminating investigative errors has not been regulated to the full extent. In order to eliminate the investigative violations of criminal procedural and criminal law, a court is empowered either to correct errors itself or to refer them to a prosecutor for correcting. However, the court does not have enough possibilities to eliminate the factual investigative errors: it cannot obtain new evidence. Moreover, the Constitutional Court of the Russian Federation prohibits referring the case to a prosecutor to fill the shortage of evidence. The activity of court under the shortage of evidence can result in wrong sentencing (acquittal of a guilty person and, hence, the violation of the right of an injured party to judicial protection). Since, it is up to the court to sentence and it is the court that is liable for the quality of a sentence, it must have all necessary remedies for correcting mistakes in the criminal case including the factual ones. However, taking into account the specificity of the court as a judicial body, it won't be right for it to collect missing evidence by its own, since doing that, it will inevitably support one of the parties to a trial and, consequently, won't be impartial. It is preferable to grant the court with the right to appoint the parties (more often a prosecutor) to collect evidence and submit the missing evidence to it. Doing that, the court should not point out the ways for obtaining new evidence; it should only stress the unascertained circumstance. It is an investigator who determines the means for a complete ascertainment of a circumstance. Thus, the court remains impartial and is able to try criminal cases.

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