Will active assistance in the investigation be taken into account as a mitigating circumstance if the defendant does not confirm his confession in court?

Everything about criminal cases

- the question of how to qualify the actions of a guilty person who, before the search begins, admits guilt and voluntarily gives up items - has long been resolved in judicial practice, there are clarifications of the Supreme Court on this matter:

Confession upon arrest

- according to clause 29

Plenum No. 58,
confession
after arrest is not considered such.
This thesis of the Supreme Court is categorical and under the circumstances you described, there is no confession and there is no chance of convincing the court to admit it. (More details about the nuances of this mitigating circumstance can be read here: Confession
- three varieties (according to the possibilities of use)

Active assistance during arrest

- in paragraph 30

Plenum No. 58 (expanding the concept of active assistance) there is a fragment that coincides in meaning with the actions of voluntary surrender of objects, so it is indicated that if a person “
indicates the place of concealment of the stolen property, the location of the instruments of crime, other items that can serve as means of detecting a crime and establishing the circumstances of the criminal case).
- but I think it is impossible to apply this instruction of the Supreme Court to your circumstances, according to the general meaning of paragraph 30

Plenum No. 58 (which contains the most complete instructions on what should be interpreted as active assistance), the actions of the perpetrator must have some practical value for the investigation. At a minimum, this value can be expressed at least in actions that save time and organizational efforts of the investigative authorities. In practice, active assistance is most often expressed in testifying against accomplices. But in your case, there was no value in the actions.

Voluntary extradition upon arrest

- according to note 1

to 228 of the Criminal Code and
paragraph 19
of Plenum No. 14, voluntary delivery of narcotic drugs means the issuance by a person of such funds to government officials if this person has a real opportunity to dispose of them in another way.

- in the circumstances you described, it is impossible to assert the voluntary nature of extradition; its involuntary nature is too obvious.

Admission of guilt upon arrest

- in paragraph 29

Plenum No. 58 contains an indication that admission of guilt immediately after arrest can be taken into account as a mitigating circumstance.
In this case, it will belong to the group of so-called it belongs to the group of other mitigating
circumstances (which are mentioned in
Part 2 of 61 of the Criminal Code
).
This type of mitigating factors is characterized by the fact that they are not mandatory for the court, therefore, in cassation they cannot play the role of grounds for changing the sentence (More information about the use of mitigating factors in the cassation stage can be read here: Mitigating circumstances
in cassation, methods of application.

TOTAL

:

- the very direction of thought is correct, since confession and active assistance belong to the group of mandatory mitigating

circumstances and if these mitigating factors (not taken into account in previous instances) are recognized at the cassation stage, then this is a 100% mitigation of the sentence.

- but unfortunately, there is no confession, there is no voluntary extradition, that is, there are grounds for the cassation court to recognize a mitigating circumstance, paragraph 1, 61 of the Criminal Code

not seen.

- admission of guilt - there is (albeit a big question, as it was not confirmed in court), but for cassation the role of grounds for reversing the verdict ( Part 1 401.15 of the Code of Criminal Procedure

) can't play.

— I believe that none of the circumstances you cited are of value for the cassation appeal.

Contributing to solving a crime

Good morning, Vladislav Sergeevich!

At the end of 2013, the Russian legislator supplemented the Criminal Code of the Russian Federation with two new crimes establishing criminal liability for fictitious registration of citizens (Article 322.2) and fictitious registration of foreign citizens or stateless persons at the place of stay in residential premises in the Russian Federation (Article 322.2). 322.3). The need for such criminalization (and the impossibility of getting by with administrative liability only) was not substantiated by the developers of the bill themselves (draft Federal Law N 200753) in the explanatory note to it, but limited themselves to the phrase that “the provisions of the bill are aimed at ensuring compliance by citizens and officials with the rules of registration registration of citizens at the place of stay and place of residence within the Russian Federation, as well as to ensure compliance by foreign citizens and stateless persons and officials with the rules of migration registration of foreign citizens and stateless persons in the Russian Federation.”

The advisability of introducing criminal liability for such actions was immediately questioned by both scientists and society. Thus, the Public Chamber of Russia, in its conclusion based on the results of the public examination of the above-mentioned draft Federal Law N 200753, indicated that it “considers it inappropriate to make changes to the Criminal Code of the Russian Federation.” Many researchers point out that the nature and degree of public danger of the consequences of the acts in question do not indicate the need to establish criminal liability for them, and this means of combating these acts is redundant.

Apparently, understanding the controversial nature of such criminalization of a crime of minor gravity, the deputies provided in these articles notes with identical conditions for exemption from criminal liability: “A person who has committed a crime under this article is exempt from criminal liability if he contributed to the disclosure of this crime and if in his the actions do not contain any other corpus delicti.” This note generally complies with all the rules of legal technology and at first glance is quite understandable, but in practice it raises a lot of procedural, legal and substantive issues, which is why judges prefer not to once again exempt persons from criminal liability on the basis of the notes to Art. . Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation.

Let's consider the situation using the example of a note to Art. 322.3 of the Criminal Code of the Russian Federation, since this article is more often found in the work of law enforcement officers. One problem is related to the difficulties in interpreting the phrase “the person contributed to the discovery of this crime.” The other is with an ambiguous understanding of which specific norm of the Code of Criminal Procedure of the Russian Federation should be used to terminate the criminal case in the case we are considering. Let's start with the first problem. An analysis of practice has shown that magistrates, in the case of exemption from criminal liability on the basis of a note to Art. 322.3 of the Criminal Code of the Russian Federation, the following factors are recognized as actions described by the phrase “a person contributed to the detection of a crime”:

• a person (usually the owner of an apartment) gave truthful explanations (about when, where and in relation to whom exactly he carried out a fictitious registration at the place of residence in a residential premises in the Russian Federation) when conducting an inspection under Art. 144 Code of Criminal Procedure of the Russian Federation;
• the person consented to an inspection of his home, in which he carried out fictitious registration of foreign citizens, also during an inspection under Art. 144 Code of Criminal Procedure of the Russian Federation.

As an example, we can cite the following excerpt from the court decision: “At the court hearing, it was established that before the initiation of a criminal case, during the inspection, Kerimov R.K.O. gave the police officer detailed and appreciative explanations and did not interfere with the inspection of the apartment as the scene of the incident. These data were direct and sufficient to initiate a criminal case under Art. 322.3 of the Criminal Code of the Russian Federation. A report on the discovery of signs of a crime in Kerimov’s actions by the commander of the RP OVO in the Klinsky district was registered in the KUSP after receiving an explanation from Kerimov and inspecting the apartment. The foreign citizen was not found and not interviewed. When interrogated as a suspect, Kerimov R.K.O. also consistently and truthfully reported the time, place, and motives for committing the crime, thereby assisting in establishing all the circumstances of the case.

According to note 2 to Art. 322.3 of the Criminal Code of the Russian Federation as a basis for exemption from criminal liability under Art. 322.3 of the Criminal Code of the Russian Federation, is any contribution to the disclosure of this crime, which was the case in this case. This basis is a mandatory norm, that is, its application is mandatory and does not depend on the discretion of the inquirer, investigator, prosecutor or court. It also does not require taking into account information about the identity of the accused and other circumstances other than those expressly provided for therein. There is no other corpus delicti in Kerimov’s actions.”

However, in almost half of the cases, judges do not recognize these actions as contributing to the detection of a crime. Thus, in a similar case, another judge points out: “The magistrate does not agree with the defense attorney’s arguments that the defendant contributed to the detection of the crime, because when receiving explanations from him, he gave truthful testimony and voluntarily agreed to inspect his home, which, according to the note to Art. 322.3 of the Criminal Code of the Russian Federation is the basis for exemption from criminal liability. The justice of the peace regards these circumstances as the position of N.N. Sbitnev. in the case, who did not dispute the fact that he had committed a crime, who had previously been convicted of a similar crime, did not carry out the sentence. Grounds for releasing the defendant from criminal liability on the basis of the note to Art. The magistrate does not see Article 322.3 of the Criminal Code of the Russian Federation.”

The author’s experience as a defense attorney in this category of criminal cases shows that the question of whether to terminate a criminal case on the basis of a note to Art. 322.3 of the Criminal Code of the Russian Federation or not, the judge most often decides, based not so much on his own previous decisions in similar cases, but on the opinion of the state prosecutor: if the prosecutor objects to the release of a person from criminal liability, the judge will pronounce a sentence.

Of course, this is an abnormal situation that ideally requires clarification at the level of clarification from the Supreme Court of the Russian Federation (not necessarily even in the form of a resolution of the Plenum of the Supreme Court of the Russian Federation). However, while there are no such clarifications, one should proceed from a systematic and logical interpretation of the content of the note to Art. 322.3 of the Criminal Code of the Russian Federation. An analysis of the norms of the Criminal Code of the Russian Federation shows that the requirement to facilitate the detection of a crime as a condition for exemption from criminal liability in various versions is contained in 10 more articles of the Criminal Code of the Russian Federation.

The legislator clearly distinguishes between such concepts as “facilitating the detection” and “facilitating the investigation” of a crime.

It seems that “facilitating the detection” of a crime is the actions of a person committed before the initiation of a criminal case, including within the framework of operational investigative activities. As for the term “contributing to the investigation” of a crime, based on the content of the Code of Criminal Procedure of the Russian Federation, this is a procedural concept that means a certain behavior of a person after the initiation of a criminal case. A similar position has already been expressed on the pages of scientific publications.

Thus, in order to exempt a person from criminal liability on the basis of the notes to Art. Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation, it is necessary to take into account only his actions taken before the initiation of a criminal case.

What exactly should these actions be so that they can be recognized as contributing to the solution of a crime? As can be seen from the table, the Criminal Code of the Russian Federation distinguishes two types of assistance in solving a crime: active and simple. In the theory of criminal law, the position has long been developed that active assistance in solving a crime is post-criminal behavior, always expressed in the active, energetic assistance of the perpetrator in clarifying the circumstances of the crime, which cannot be expressed in the person’s failure to interfere with the solving or investigation of the crime, in other words, in his inaction. Accordingly, inactive (simple) assistance in solving a crime can be expressed in inaction, for example, in not interfering with the inspection of one’s home by operational officers, so that the latter can make sure that foreign citizens do not actually live in the apartment.

No confession or repentance when helping to solve crimes under Art. Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation, not required. This thesis follows from paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability,” which states that “exemption from criminal liability for a crime of minor or of moderate gravity in cases specifically provided for by the notes to the relevant articles of the Special Part of the Criminal Code of the Russian Federation, is carried out according to the rules established by such notes. In this case, fulfillment of the general conditions provided for in Part 1 of Article 75 of the Criminal Code of the Russian Federation is not required.”

Thus, providing reliable information when giving explanations to law enforcement officers and giving consent to inspect your home during an inspection under Art. 144 of the Code of Criminal Procedure of the Russian Federation are quite sufficient grounds for the mandatory release of persons from criminal liability under Art. Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation.

Unreasonable expansion of the list of actions that a person must perform so that his behavior can be seen as contributing to the detection of a crime under Art. Art. 322.2 or 322.3 of the Criminal Code of the Russian Federation, in our opinion, is due to the fact that judges consider the notes to these articles as a description of actions that constitute a type of active repentance. This is apparently due to the procedural uncertainty in which judges find themselves when a reason arises for applying a note to Art. Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation. Thus, it is impossible to exempt from criminal liability on the basis of a note to the article of the Special Part of the Criminal Code of the Russian Federation without reference to the norm of the Code of Criminal Procedure (i.e. without a procedural basis). In cases where judges nevertheless release persons from criminal liability under Art. 322.3 of the Criminal Code of the Russian Federation on the basis of the note to this article, they (the judges) refer to Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation in conjunction with Part 2 of Art. 75 of the Criminal Code of the Russian Federation. However, in Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation directly speaks of the active repentance of a person, which, as follows from the above Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”, is not required in the case under consideration us case.

The judge finds himself in a procedural trap:

• on the one hand, the Supreme Court of the Russian Federation explains that active repentance itself is not required when releasing from criminal liability for crimes of minor gravity on the basis of notes to the articles of the Special Part of the Criminal Code of the Russian Federation;
• on the other hand, the judge is obliged to refer to the norm of the Code of Criminal Procedure of the Russian Federation, the most acceptable of which for such a situation is Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation, which talks about active repentance and serious and especially serious crimes.

As you can see, the link to Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation in our case is forced and incorrect (Part 2 of Article 28 of the Code of Criminal Procedure of the Russian Federation applies only to grave and especially grave crimes), but there are no other more or less “suitable” norms in the procedural law. The Code of Criminal Procedure of the Russian Federation provides an exhaustive list of grounds for termination of a criminal case (criminal prosecution), and this list does not include notes to the articles of the Special Part of the Criminal Code of the Russian Federation. In fact, judges are forced to apply the Code of Criminal Procedure of the Russian Federation by analogy, which scientists have already paid attention to more than once.

From a procedural point of view, in such a situation it is easier for a judge to release a person from criminal liability with reference to Part 1 of Art. 75 of the Criminal Code of the Russian Federation and Part 1 of Art. 28 Code of Criminal Procedure of the Russian Federation. However, this option is acceptable only for cases of active repentance. Until the corresponding changes are made to the Code of Criminal Procedure of the Russian Federation (the inclusion in the Code of Criminal Procedure of the Russian Federation of another basis for terminating a criminal case - notes to the articles of the Special Part of the Criminal Procedure Code of the Russian Federation, the need for which has already been written many times by various researchers), all that remains is to continue to refer to Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation and the note to Art. Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation.

The current harmful practice of refusing to satisfy requests to terminate criminal cases on the basis of a note to Art. 322.3 of the Criminal Code of the Russian Federation, if there are truthful explanations from the person and he gives consent to inspect his home as part of the inspection under Art. 144 of the Code of Criminal Procedure of the Russian Federation needs to be changed. Lawyers, meanwhile, continue to fight for their clients, filing appropriate complaints in the courts of appeal and cassation.

Legal assistance, please contact us.

Thank you!

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Legislative framework of the Russian Federation

valid Editorial from 17.10.2012

detailed information

“REVIEW OF THE SUPERVISION PRACTICE OF THE JUDICIAL COLLEGE FOR CRIMINAL CASES OF THE SUPREME COURT OF THE RUSSIAN FEDERATION FOR THE FIRST HALF OF 2012” (Approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated October 17, 2012)

3.2.2. Actively contributing to the detection and investigation of a crime is a circumstance mitigating punishment (clause “and” part 1 of article 61 of the Criminal Code of the Russian Federation).

The judicial panel, having satisfied the supervisory appeal of convicted B., changed the verdict of the Voskresensky District Court of the Nizhny Novgorod Region dated April 29, 2008 and the resolution of the Presidium of the Nizhny Novgorod Regional Court dated November 2, 2011, indicating the following.

In accordance with paragraph “i” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation recognizes active assistance in the detection and investigation of a crime as one of the mitigating circumstances for punishment.

Within the meaning of the law, active assistance in the detection and investigation of a crime consists of the active actions of the perpetrator aimed at cooperation with the investigative authorities, and can be expressed in the fact that he provides the said authorities with information, including information previously unknown to them, including truthful and complete testimony , participates in investigative actions aimed at consolidating and confirming previously obtained data, indicates the place where the stolen property is stored.

According to the materials of the criminal case, on the day the body was discovered and the criminal case was initiated, B., during interrogation as a suspect, pointed out the circumstances of the crimes committed, and during the search he voluntarily gave up the cell phone and two chains stolen from the victim. During interrogation as an accused, B. fully admitted his guilt and confirmed his testimony when going to the crime scene.

Despite the fact that the court in its verdict referred to the above-mentioned testimony and protocols of investigative actions as reliable evidence, when imposing punishment in violation of paragraph “i” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, active assistance in the investigation of crimes was not taken into account by the court as a circumstance mitigating B’s punishment.

The Presidium of the Nizhny Novgorod Regional Court, referring in its ruling to B.’s assistance in solving the crime, did not indicate the presence of this mitigating circumstance.

With such data, taking into account the provisions of Art. 10 of the Criminal Code of the Russian Federation and Part 1 of Art. 62 (as amended by the Federal Law of June 29, 2009 N 141-FZ) in their unity, the punishment of B. under Part 1 of Art. 105 of the Criminal Code of the Russian Federation cannot be assigned more than 10 years of imprisonment.

The panel of judges recognized B.’s active contribution to the investigation of crimes as a mitigating circumstance and commuted the sentence imposed on him.

Determination dated May 22, 2012 N 9-D12-3