Falsification of evidence theory and practice
It is worth noting that the written form of the application has a significant drawback: a participant in the process will not be able to quickly respond to false evidence presented to the court, since the oral form of the application is not allowed, and its written execution will require not only time, but also the presence of legal knowledge on the part of the party. However, a participant in the process has the right to declare his intention to challenge the falsified evidence. The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 36 of Information Letter No. 82 dated August 13, 2004 “On some issues of application of the Arbitration Procedural Code of the Russian Federation” explained that “in the case of an oral statement about falsification of evidence, the court must reflect this statement in the protocol and explain it to the person participating in the case who made an oral statement about falsification of evidence, the right to submit a written statement about this.”
Criminal case
In Art. 303 of the Criminal Code of the Russian Federation establishes the following sanctions for providing false information when considering a crime:
- Restriction of freedom up to 3 years.
- Forced labor for the same period. In addition, there may be a ban on carrying out activities/holding positions specified by the court for 3 years.
- Up to 5 years in prison. In addition, the prohibition stated above may apply.
An investigator, defense attorney, inquiry officer or prosecutor may be held accountable under the second part. The above sentences of Art. 303 of the Criminal Code of the Russian Federation are toughened if the above acts were committed as part of a criminal case for a serious/especially serious act, and also entailed serious consequences. In these cases, the perpetrator is sentenced to up to 7 years in prison with or without a ban on conducting activities/holding positions established by the court for up to 3 years.
Part 4
Federal Law No. 144 defines the concept of operational investigative work and activities and designates the circle of entities authorized to carry them out. Through operational intelligence, crimes are identified, prevented, suppressed and solved, and the persons preparing, committing or committing them are identified. This activity is also aimed at searching for citizens hiding from justice or missing. Within the framework of operational intelligence, information is obtained about actions/inactions and events that pose a threat to the military, economic, state, and environmental security of the country. The results of activities, for the falsification of which a penalty is established under the norm in question, may be, among other things, information about the implementation/non-fulfillment of a specific event, its participants, the procedure, and the timing of implementation. The subjects conducting operational operations are authorized employees of the relevant departments of the Department of Internal Affairs. Consequently, only they can be held accountable under the fourth part of the rule. It is necessary to take into account that Part 4 does not identify qualified types of crime within the framework of operational intelligence activities. Accordingly, if the action of an operative employee entailed grave consequences, the actions fall only under the fourth part, if they do not contain signs of other crimes.
Commentary on Article 303 of the Criminal Code of the Russian Federation
1. Falsification of evidence as an independent crime was not provided for in the previous Criminal Code of the Russian Federation. The consolidation of this composition in the new Criminal Code of the Russian Federation is based on the following provision, elevated to the rank of constitutional: “In the administration of justice, the use of evidence obtained in violation of federal law is not allowed” (Article 50 of the Constitution).
2. In the comments. The article provides for two independent main elements of crime: Part 1 deals with falsification of evidence in a civil case, and Part 2 deals with falsification of evidence in a criminal case. The object of a criminal attack is social relations that develop in the sphere of procedural evidence.
3. The range of actions that form the objective side is approximately the same in both compositions. The term “falsification” itself (from the Latin falsificare - to counterfeit) means the counterfeiting of something, distortion, substitution of the genuine with a false, imaginary one. Use of this term in comments. The article suggests that the Criminal Code of the Russian Federation provides for criminal penalties for forgery of evidence and substitution of evidence.
4. Falsification of evidence will be both falsification of factual data that is significant in the case, and falsification of sources of evidence, a list of which is given in Part 2 of Art. 74 Code of Criminal Procedure.
5. The legislator’s indication of the knowledge of the unfairness of a judicial act excludes the conclusion about the possibility of committing this crime through negligence. In this crime, guilt is characterized by direct intent. The subject not only realizes that he is taking part in the adoption of an unjust act, but also desires its resolution.
6. Falsification of evidence - a crime with a special subject. The law names the person participating in the case and his representative as subjects of falsification of evidence in a civil case. Persons participating in the case include the parties (plaintiff, defendant), prosecutor, third parties, as well as persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or entering into the process in order to give an opinion, applicants and others interested persons in cases of special proceedings and in cases arising from public legal relations (see Article 34 of the Code of Civil Procedure of the Russian Federation).
6.1. On the representation of a person participating in the case - see Art. 48 - 54 Civil Procedure Code.
6.2. As subjects provided for in Part 1 of the comment. Articles by citizens who have reached the age of 16 and occupy the position of plaintiff, defendant, third party, representative, applicant, or prosecutor in civil proceedings.
6.3. The subject of falsification of evidence according to UD is the person conducting the inquiry, investigator, prosecutor or defense attorney.
7. The subjective side of falsification of evidence is characterized by guilt in the form of intent, and direct one. The perpetrator is aware that he is changing, through substitution or modification, the content or volume of evidentiary information, and wants to commit similar actions.
8. In part 3 comments. Article provides for criminal penalties for falsifying evidence according to the Criminal Code of a serious or especially serious crime, as well as for falsifying evidence that entailed grave consequences. For the concepts of grave and especially grave crimes, see parts 4 and 5 of Art. 15.
The content of the second qualifying feature should be determined in the same way as in other crimes against justice (see, for example, commentary to Part 3 of Article 301), taking into account the nature of the crime.
9. The act provided for in Part 1 is classified by the legislator as a crime of minor gravity, Part 2 - of medium gravity, and Part 3 - as a category of serious crime.
SENTENCE
IN THE NAME OF THE RUSSIAN FEDERATION
May 15, 2022 r.p. Chern, Tula region
Chernsky District Court of the Tula Region, consisting of:
presiding judge Vaskov E.I.,
when keeping the minutes of the court session by secretary Bulavintseva I.V.,
with
State Prosecutor Assistant Prosecutor of the Chernsky District of the Tula Region Chumarin I.A.,
defendant Egorov V.E.,
defense lawyer Sklyarov S.I., who presented certificate No. dated DD.MM.YYYY and warrant No. dated DD.MM.YYYY,
having considered in an open court session on the premises of the court in a special procedure the criminal case against the defendant
Egorova V.E., <data taken>, unconvicted,
accused of committing a crime under Part 1 of Art. 303 of the Criminal Code of the Russian Federation,
installed:
Egorov V.E., being an official authorized to draw up protocols on administrative offenses, committed falsification of evidence in a case of an administrative offense, under the following circumstances.
In accordance with the order of the acting head of the Ministry of Internal Affairs of the Russian Federation for the Tula region <data taken> and the contract for service in the internal affairs bodies of the Russian Federation dated DD.MM.YYYY (as amended from DD.MM.YYYY), Egorov V.E. was recruited to serve in the internal affairs bodies of the Russian Federation as an inspector of the road patrol service <data taken>, and held the specified position from DD.MM.YYYY to DD.MM.YYYY.
In accordance with clause 2, part 1, art. 12, paragraph 1, 8, 20 hours 1 art. 13 of Federal Law No. 3-FZ “On the Police”, Part 1 of Art. 28.3, part 1 art. 28.6 of the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) and the official regulations, <data taken> (hereinafter referred to as IDPS) Egorov V.E. exercised powers to ensure compliance by road users with traffic rules, suppress administrative offenses, document the circumstances of their commission and carry out proceedings in cases of administrative offenses, draw up protocols on administrative offenses, make decisions in cases of administrative offenses, apply measures to ensure proceedings in cases about administrative offenses.
In accordance with paragraphs. 1,2,3,4,7,12 part 1 tbsp. 12, pp. 1,2,3,7 part 1 art. 13 of Federal Law No. 342-FZ of November 30, 2011 (as amended on July 3, 2016) “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” IDPS Egorov V.E. was obliged to: know and comply with the Constitution of the Russian Federation, legislative and other regulatory legal acts of the Russian Federation in the field of internal affairs, and ensure their implementation; take place in accordance with the procedure established by the federal government. executive authority in the field of internal affairs, regular checks of knowledge of the Constitution of the Russian Federation, legislative and other regulatory legal acts of the Russian Federation in this area; know and comply with job regulations (job descriptions) and the provisions of other documents defining his rights and official responsibilities; carry out orders and instructions from direct managers (supervisors), as well as be guided by the legislation of the Russian Federation when receiving an order or instruction from a direct or immediate manager (supervisor) that is obviously contrary to the legislation of the Russian Federation; observe the rights and legitimate interests of citizens, public associations and organizations when performing official duties; prevent abuse of official powers; comply with the restrictions and prohibitions established by federal laws related to service in internal affairs bodies, comply with the requirements for official behavior of an employee; when carrying out official activities, must proceed from the fact that the recognition, observance and protection of human and civil rights and freedoms determine the content of their professional official activities; do not allow decisions to be made based on reasons of personal interest; not to commit acts during the performance of official duties that raise doubts about the objectivity, fairness and impartiality of the employee, damaging his reputation, the authority of the federal executive body in the field of internal affairs, as well as state power; within the limits of official authority, provide assistance to citizens in the exercise of their rights and freedoms; perform official duties conscientiously and at a high professional level.
Thus, in the period from DD.MM.YYYY to DD.MM.YYYY IDPS Egorov V.E. was a representative of the government, that is, an official vested in the manner prescribed by law with administrative powers in relation to a wide range of persons who are not officially dependent on him, as well as the right to make decisions binding on citizens and organizations regardless of their departmental subordination.
In accordance with clause 109 of the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation for the execution of the state function of control and supervision of compliance by road users with requirements in the field of ensuring road safety, approved by Order of the Ministry of Internal Affairs of the Russian Federation dated March 2, 2009 No. 185 (as amended No. 5 dated December 22. 2014) (hereinafter referred to as the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation), the basis for drawing up a protocol on an administrative offense is the identification of an administrative offense if the consideration of the case of this administrative offense is not within the competence of the employee.
According to Part 1 of Art. 12.26 of the Code of Administrative Offenses of the Russian Federation, failure by the driver of a vehicle to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication, if such actions (inaction) do not contain a criminal offense, entails the imposition of an administrative fine in the amount of thirty thousand rubles with deprivation of the right to drive vehicles for a period of one and a half to two years.
According to Art. 26.2 of the Code of Administrative Offenses of the Russian Federation, evidence in a case of an administrative offense is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an administrative offense event, the guilt of the person brought to administrative responsibility, as well as other circumstances relevant for the correct resolution of the case. These data are established, among other things, by the protocol on an administrative offense and other protocols provided for by the Code of Administrative Offenses of the Russian Federation. It is not allowed to use evidence in a case of an administrative offense if the said evidence was obtained in violation of the law.
According to Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, the protocol on an administrative offense indicates the date and place of its preparation, the position, surname and initials of the person who compiled the protocol, information about the person against whom the case of an administrative offense was initiated, surnames, first names, patronymics, addresses of the place of residence of witnesses and victims , if there are witnesses and victims, the place, time of commission and event of the administrative offense, an article of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation providing for administrative liability for this administrative offense, an explanation of the individual or legal representative of the legal entity against whom the case was initiated, other information necessary to resolve the case.
According to Art. 28.3 of the Code of Administrative Offenses of the Russian Federation, protocols on administrative offenses, provided for in Art. 12.26 of the Code of Administrative Offenses of the Russian Federation, are compiled by officials of internal affairs bodies (police).
In the period from 20 hours 00 minutes on December 17, 2016 to 08 hours 00 minutes on December 18, 2016, in accordance with the schedule for the deployment of personnel of the 2nd platoon of the traffic police of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia in the Tula region, IDPS Egorov V.E., being an official, performing the functions of a representative of the authorities, he was on duty together with the inspector of the road patrol service 2 OB DPS of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia for the Tula Region B and carried out the duties assigned to him in accordance with clause 2 of part 1 of Art. 12 of Federal Law No. Z-FZ “On the Police” and the official regulations of the obligation to ensure that road users comply with traffic rules, suppress administrative offenses, document the circumstances of their commission and carry out proceedings on cases of administrative offenses on the section of the M 2 “Crimea” highway . In the period from 22 hours 50 minutes to 23 hours 10 minutes on December 17, 2016 IDPS Egorov V.E. together with IDPS B, while performing their official duties in the village of Medvezhka, Chernsky district, Tula region, they noticed a car <data taken> driven by driver M leaving the parking lot of the Tula 50 cafe and decided to stop this car. Driving in a service vehicle with flashing lights and IDPS siren turned on, Egorov V.E. and B, over the loudspeaker, demanded that M stop the car. However, M, in violation of the requirements of Art. 12.25 of the Code of Administrative Offenses of the Russian Federation did not comply with the requirements of the IDPS to stop the vehicle, and proceeded to his house, located at the address: <address>.
In the period from 23 hours 10 minutes on December 17, 2016 to 08 hours 00 minutes on December 18, 2016, being at a distance of approximately 100 meters from M’s house, based on another personal interest, namely the falsely understood interests of the service, obliging him to identify and administrative offenses, motivated by careerism, the desire to embellish the actual state of affairs and personal performance indicators in identifying and suppressing administrative offenses in the field of traffic in the territory served by him, as well as the desire to hide his incompetence and unprofessionalism, the desire to avoid possible disciplinary liability for shortcomings in work, related to the lack of detection of administrative offenses under Part 1 of Art. 12.26 Code of Administrative Offenses of the Russian Federation, Egorov V.E. decided to falsify evidence in the case of an administrative offense, and bring M to administrative responsibility for an administrative offense under Part 1 of Art. 12.26 of the Code of Administrative Offenses of the Russian Federation, which M did not commit. During the same period of time, in the specified place, realizing his criminal intent aimed at falsifying evidence in a case of an administrative offense, realizing the social danger of his actions in the form of an encroachment on legal relations in the sphere of justice, V.E. Egorov, being a person authorized to draw up protocols on administrative offenses, realizing that in accordance with Art. 26.2 of the Code of Administrative Offenses of the Russian Federation, evidence in a case of an administrative offense is a protocol on an administrative offense and other protocols, out of personal interest he falsified evidence in a case of an administrative offense, namely, without the participation of two witnesses G and K, he drew up a protocol on removal from driving a vehicle against M means <data withdrawn>, and a protocol on referral for a medical examination for intoxication <data withdrawn>, adding in them untrue information about the content, fact, place and date of their preparation, as well as about the persons who took part in the preparation protocol, while signing the said protocols for the witness G. After drawing up, the said protocols were signed by IDPS Egorov V.E.
The indicated falsified IDPS protocols by Egorov V.E. were added to the materials of the administrative violation case. As a result of the consideration of the case of an administrative offense, by the decision of the magistrate <data taken> from DD.MM.YYYY M was found guilty of committing an administrative offense under Part 1 of Art. 12.26 of the Code of Administrative Offenses of the Russian Federation and he was sentenced to an administrative fine in the amount of 30 thousand rubles with deprivation of the right to drive a vehicle for a period of 1 year 6 months, which was subsequently canceled with the termination of the proceedings.
During the court hearing, defendant Egorov V.E. explained that it was he who committed the actions specified in the indictment, and filed a petition for consideration of the criminal case in a special court procedure.
Petition of the defendant Egorov V.E. his defender S.I. Sklyarov supported him.
State prosecutor Chumarin I.A. did not object to the granting of this request of the defendant.
Victim M did not appear at the court hearing, asked to consider the case in his absence, and did not object to the consideration of the case in a special manner.
Defendant Egorov V.E. agreed with the charge brought against him, fully admitted his guilt in committing the crime specified in the indictment announced by the state prosecutor, supported the petition for a special procedure for the trial, stated by him in the presence of a defense lawyer and within the period established by Art. 315 of the Code of Criminal Procedure of the Russian Federation, explaining to the court that the petition was submitted voluntarily and after consultations with the defense lawyer, and that he was fully aware of the nature and consequences of passing a sentence without a trial.
The court, taking into account the above, as well as the validity of the accusation, which the defendant agreed with, and its confirmation by the evidence collected in the case, the absence of grounds for terminating the criminal case, taking into account that the maximum punishment for the crime committed cannot exceed 10 years in prison, at the request the defendant considered the criminal case in a special procedure for making a judicial decision.
The court comes to the conclusion that the guilt of the defendant V.E. Egorova is confirmed. in the charge brought against him and qualifies his actions under Part 1 of Article 303 of the Criminal Code of the Russian Federation as falsification of evidence in a case of an administrative offense by an official authorized to draw up protocols on administrative offenses.
When assigning punishment to the defendant Egorov V.E. the court takes into account the nature and degree of public danger of the act, information about the identity of the perpetrator: he was characterized positively at his place of previous work, the absence of aggravating circumstances, mitigating circumstances: admission of guilt and repentance for the crime (Part 2 of Article 61 of the Criminal Code of the Russian Federation), < “data withdrawn>), as well as the impact of the imposed punishment on the correction of the convicted person and the living conditions of his family.
Taking into account all the information about the personality of the defendant V.E. Egorov, the court comes to the conclusion that it is possible to correct him in conditions not related to isolation from society, and imposes on him a non-custodial sentence in the form of a fine.
When determining the amount of the fine, the court takes into account the severity of the crime committed, the property status of V.E. Egorov. and his family, as well as the possibility of him receiving wages or other income. Grounds for application to Egorov V.E. provisions of Art. 64 of the Criminal Code of the Russian Federation, the court does not see it.
The court believes that the preventive measure in the form of a written undertaking not to leave the place and proper behavior, chosen by Egorova V.E., must be left unchanged until the court verdict enters into legal force.
Guided by Art. Art. 303, 304, 307-309, 316, 317 Code of Criminal Procedure of the Russian Federation court
sentenced:
admit Egorova V.E. guilty of committing a crime under Part 1 of Article 303 of the Criminal Code of the Russian Federation, and sentence him to a fine in the amount of 150,000 (one hundred and fifty thousand) rubles.
Before the court verdict entered into legal force, the preventive measure for Egorov V.E. leave unchanged - in the form of a written undertaking not to leave the place and proper behavior.
Physical evidence <data seized> - send to court and store in the criminal case.
The court's verdict can be appealed within 10 days from the date of its decision to the judicial panel for criminal cases of the Tula Regional Court, in compliance with the requirements of Art. 317 of the Code of Criminal Procedure of the Russian Federation, with the exception of the grounds provided for in paragraph 1 of Art. 389.15 of the Code of Criminal Procedure of the Russian Federation, by filing an appeal or submission through the Chernsky District Court of the Tula Region.
Chairman E.I. Vaskov
Item
It can be material evidence, documents, records of judicial or investigative actions. They can be planted at a crime scene to replace items actually related to the incident. Falsification may consist of indicating false information in the investigative protocol both about the fact being studied (for example, about an object allegedly discovered during a search) and about the circumstances of the procedural action (time of implementation, composition of participants, etc.). The crime is considered completed from the moment when inappropriate information is presented for inclusion in the production materials. The subsequent recognition of such information as inadmissible does not affect the qualification of the act. Responsibility under Art. 303 of the Criminal Code of the Russian Federation (as amended) varies depending on the circumstances in which the crime was committed. In particular, in the first part, penalties are provided for in case of substitution that took place within the framework of civil proceedings, in part 2 - in criminal proceedings. Within the meaning of Article 118 of the Constitution, the first is carried out both within the framework of the Civil Procedure Code and the Arbitration Procedure Code. Accordingly, the liability established by the first part of Art. 303 of the Criminal Code of the Russian Federation, also applies to arbitration proceedings.
