Lawyer Spiridonov M.V.
02/17/2021 0 Comments Law practice Spiridonov M.V., Criminal cases
lawyer in Novosibirsk, lawyer in cases of fraud, lawyer under Art. 159 of the Criminal Code of the Russian Federation, criminal lawyer, inadmissible evidence, charges of fraud, challenging a confession, Art. 159 of the Criminal Code of the Russian Federation, confession
Confession is an interesting type of evidence in criminal proceedings. Using the example of defense on charges of multi-episode fraud, I will analyze one of the ways to challenge this evidence.
A confession is often written “in hot pursuit,” when a person has just been detained and taken to the department. In the vast majority of cases, without the participation of a lawyer.
The question arises: if the client does not agree with this appearance, how can he challenge it?
There are several methods, I will tell you about the simplest one, which was recently implemented in one criminal case, accusing my client of 15 counts of fraud (4 counts under Part 4 of Article 159 of the Criminal Code of the Russian Federation, the rest - 3 counts).
This method is based on the Resolution of the European Court of Human Rights in case No. 40852/05 “Shlychkov v. Russian Federation” (Review of the judicial practice of the Supreme Court of the Russian Federation No. 4 (2016). This resolution expresses the legal position on the issue of assessing the content of a confession, which given without a lawyer and the content of which was not subsequently confirmed by the accused.Such a confession cannot be considered admissible evidence, since the person was not provided with legal assistance when testifying against himself.
On this basis the appearances in the said case were challenged. The court declared the confession without a lawyer inadmissible and excluded from evidence.
At the same time, the court concluded that excluding confessions from evidence does not deprive the court of the opportunity to recognize them as mitigating circumstances.
This is the double effect. On the one hand, confessions were recognized as unacceptable evidence, on the other hand, they played a role in mitigating the punishment.
Peculiarities of registration and judicial assessment of confession
The criminal legal significance of a confession is that it is both evidence of guilt and a circumstance mitigating punishment.
When assessing an application to surrender in court, the greatest difficulties arise in determining the voluntariness of a person’s appeal (it is necessary to exclude the fact of self-incrimination) and the possibility of reducing the punishment.
Confession and self-incrimination. In practice, there are rarely cases when the defense manages to convince the court that the accused needlessly incriminated himself under pressure from the investigation. Courts, as a rule, do not accept the change in the testimony of the defendant and the refusal of the confession given during the investigation, when all procedural procedures were observed during the confession (participation of a lawyer, investigative experiment), and the confession was repeated several times.
FROM PRACTICE. By the verdict of the Samara Regional Court dated February 6, 2009, N. and G. were found guilty of robbery committed by a group of persons by prior conspiracy, using an object used as a weapon, with illegal entry into a home (Parts 2, 3 of Article 162 of the Criminal Code of the Russian Federation ), and N. - also with causing grievous harm to the health of the victim (clause “c”, part 4 of article 162). N., in addition, was found guilty of intentionally causing the death of K., associated with robbery (clause “h”, part 2, article 105 of the Criminal Code of the Russian Federation). In cassation appeals, the convicts and their defenders asked to cancel or change the sentence, citing, in particular, that N. and G. gave their confessions and incriminating testimonies under the threat of physical violence. Having checked the case materials, the Judicial Panel found the verdict legal and justified. In the cassation ruling, the court gave the following arguments. The guilt of N. and G. in the crime was confirmed not only by the incriminating testimony of the convicts themselves, given by them during the preliminary investigation, but also by the testimony of witnesses, the victim, the report of the inspection of the scene of the incident, expert opinions, other evidence examined in court and given in the verdict, to which the court gave correct assessment. The arguments of the convicts that they were not involved in the crimes committed, but incriminated themselves during the investigation, were carefully checked in court and were rightfully declared unfounded. The verdict provides convincing reasons why the court came to this conclusion. Both N. and G. gave incriminating evidence repeatedly and under conditions that precluded the use of any unauthorized investigative methods. As can be seen from the case materials, their defenders, as well as legal representatives, were present at all investigative actions with the participation of N. and G., while no statements or complaints were received from these persons. According to the testimony of the legal representatives of the convicts, all investigative actions with the participation of N. and G. took place in the presence of lawyers. Both spoke about the circumstances of the crime, there were no complaints on their part, and no bodily injuries were recorded. When checking the incriminating testimony of the convicted, the court found that this testimony was reliable, consistent, logical and did not contradict the entire body of evidence collected in the case, including the testimony of the victim T. When assigning punishment, G. and N. were fully taken into account by the court as their character and the degree of public danger, the severity of the act committed, as well as information about the identity of the convicted, all mitigating circumstances, including confession, the minor age of the convicted. The imposed punishment is fair and there are no grounds for reducing it.
Even if we assume that operational officers, in pursuit of indicators, could force a person to confess to committing a number of crimes that he did not commit, it will be extremely difficult to procedurally consolidate such a confession. During an identification parade, checking testimony on the spot and other investigative actions involving this person, it will be revealed his innocence in committing crimes. If contradictions are established and, as a result, a person is not involved in criminal activity, he is subject to release from criminal liability. If a person gives consistent testimony that objectively reflects the circumstances of the commission of these crimes, the preliminary investigation body and the court will have no reason to consider the confession and subsequent confession of the person as self-incrimination.
Possibility of reducing punishment. According to paragraph “i” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, surrender is a circumstance mitigating punishment. According to the rules of Article 62 of the Code, in the presence of a mitigating circumstance and the absence of aggravating circumstances, the term or amount of punishment cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation. The Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 states that when mitigating circumstances are established, provided for in clauses “and” and (or) “k”, Part 1 of Article 61 of the Criminal Code of the Russian Federation, and the presence of the grounds specified in Article 64 of the Criminal Code of the Russian Federation, the court has the right, taking into account the specific circumstances of the case and information about the identity of the perpetrator, to assign a more lenient punishment than provided for a specific crime. If the person gave a confession after his arrest, or during the investigation aggravating circumstances were established, such active post-criminal behavior will be classified as other mitigating circumstances, which, however, do not fundamentally affect the assignment of punishment. The possibility of reducing the punishment established by Article 62 of the Criminal Code of the Russian Federation, in the opinion of the legislator, should encourage the person who committed the crime to contact law enforcement agencies with a statement of surrender. However, this possibility is limited by the presence of aggravating circumstances in the case. Even active assistance in solving the crime, truthful consistent testimony and other positive post-criminal steps taken by the criminal cannot “outweigh” the presence of any aggravating circumstance. It is difficult to say to what extent this situation corresponds to the criminal policy pursued by the state. It seems that the stimulation of positive post-criminal behavior should be somewhat broader and have fewer barriers, such as the impossibility pre-established in the law to “meet halfway” to a repentant criminal. The confession and other active actions of the criminal must have an unambiguous legislative opportunity to positively influence the assignment of punishment to him. An analysis of the practice of imposing punishment in the form of imprisonment allows us to state: in the vast majority of criminal cases considered by the courts, the punishment does not exceed two-thirds of its maximum limit, regardless of the presence or absence of mitigating circumstances in the case. At the same time, a person who has committed a crime does not have the possibility of reducing the punishment strictly defined by law. It may turn out that a confessed criminal will surrender himself to justice and receive a punishment close to the maximum. An example of this is the harsh sentence against Zarema Muzhakhoeva, who voluntarily refused to commit a terrorist act. Cooperation with the investigation, expressed in a detailed statement of the circumstances of the case, should influence the imposition of punishment and be taken into account as a confession, even if the will of the guilty persons to such cooperation took place after work carried out with them in the police department. You can choose a procedural stage, before which a person’s confession will be regarded as a confession. For example, before being detained as a suspect, or even better - before interrogation begins (after all, a person can be detained until the circumstances are clarified for various reasons). Clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 states: a report of a crime made by a person after his arrest on suspicion of committing a crime does not exclude the recognition of this report as a mitigating circumstance. Such wording, in our opinion, expands the boundaries of judicial discretion and creates great opportunities for refusing to recognize such statements as a confession, with the ensuing rules for sentencing. Another recommendation of the Plenum of the Armed Forces of the Russian Federation is important for practice: if a person’s report about a crime committed with his participation, together with other evidence, is used by the court as the basis for a conviction, then this report can be considered as a confession even in the case when the person during the preliminary investigation or at a court hearing changed his testimony.
FROM PRACTICE. The Presidium of the Moscow Regional Court reduced (from 9 years to 8.5 years) the sentence of imprisonment for convicted S., who was found guilty of intentionally causing grievous bodily harm dangerous to human life, which negligently resulted in the death of the victim (Part 4 of Art. .111 of the Criminal Code of the Russian Federation). As follows from the decision of the supervisory court, the Khimki City Court of the Moscow Region, when imposing punishment on S., did not recognize the confession as a mitigating circumstance due to the fact that the accused changed his testimony at the court hearing (tried to disavow the confession, downplaying his role and his actions in in general). By the ruling of the judicial panel for criminal cases of the Moscow Regional Court dated October 21, 2003, the verdict against S. was left unchanged. The Presidium of the Moscow Regional Court, referring to the Resolution of the Plenum of the All-Russian Socialist Republic of the Russian Federation No. 2, did not agree with this assessment of the confession of the convicted person and changed the sentence.
At the same time, the wording “may” in the analyzed explanation of the Plenum of the Armed Forces of the Russian Federation is not a mandatory instruction for the courts. As practice shows, courts may not take into account a statement of a committed crime as a confession not only when a person changes his testimony in court, but even when it supplements it.
FROM PRACTICE. S. was accused of murder. Law enforcement officers took S. from the hospital to the local police station, where he wrote a corresponding statement. Subsequently, being interrogated as a suspect and accused, S. confessed. Also, with his participation, an on-site verification of the testimony was carried out, during which S. explained in detail the circumstances of the incident.
When passing the verdict, the Izmailovsky District Court of Moscow did not recognize S.’s statement as a confession on the grounds that it was written by him after being taken to the police station, and his identity had already been established by law enforcement agencies. The court ignored a number of significant circumstances of fundamental importance for the case. The confession statement was written by S. not only before the protocol on his arrest was drawn up, but also before the decision was made to initiate a criminal case. Despite the violations committed during the proceedings, the position of the court of first instance was supported by the cassation and supervisory authorities.
Excerpts from the verdict.
Summary
According to Art. 61 of the Criminal Code of the Russian Federation, a confession is considered as a mitigating circumstance if it was formalized voluntarily and before the actual detention of the citizen. The report can be submitted orally or in writing, and a procedural protocol is drawn up to record the applicant’s testimony. When filling out a sample confession, you must take into account the provisions of Art. 141-142 Code of Criminal Procedure of the Russian Federation.
An adult citizen has the right to refuse the services of a lawyer if such a decision is made voluntarily and without pressure. When dealing with the appearance of a minor child, this rule does not apply, and the participation of a lawyer will be mandatory.
Is it possible to report a crime verbally?
Current legislation allows citizens to report the commission of a crime orally. In this case, the police officer must issue a confession report. This document indicates the full name and position of the person drawing up the document, and lists the circumstances of its writing. Next, the details of the criminal and information about the crime committed are indicated.
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The drawn up protocol is signed by a police officer or an employee of the investigative committee. The document is also signed by the citizen who confessed.
In most cases, a protocol is drawn up even if there is a written appearance. Both documents are filed in the criminal case and used as evidence.
Feeding features
In accordance with the norms of the Code of Criminal Procedure of the Russian Federation, the criminal must submit a red-handed appearance in person. Some experts insist that this document should be written in the presence of police officers. And in most cases, this is what happens - a citizen verbally reports a crime, his rights are explained to him, and then he writes a statement.
In rare cases, the appearance will be sent by mail. In addition, convicted and serving sentences citizens quite often write confessions, wanting to achieve a mitigation of their sentences. By confessing to committing other crimes, prisoners can provide significant assistance to the investigation, as a result of which the chosen preventive measure is revised.
Persons held in pre-trial detention centers submit applications through the administration of the institution. Such letters are sent to the police department, where they can be filed with the case. The main thing is that the confession be written on behalf of the person who committed the crime.
Consequences of self-incrimination
Citizens often commit self-incrimination. That is, a person writes a confession, but as a result of verification it turns out that he could not have been involved in the commission of a crime. People in pre-trial detention centers and colonies often engage in self-incrimination. Moreover, the reason for a false appearance may be a banal desire to break out of isolation and participate in investigative actions. Also, the need to take on someone else's crime could be a matter of dispute.
As mentioned above, when registering a confession, a citizen is usually not warned of liability for knowingly false denunciation. However, this does not exempt him from liability if self-incrimination entails serious consequences. For example, the investigation reached a dead end, and the real criminal went abroad. In such situations, the perpetrator may be prosecuted for perjury.
Case No. 58-O13-5
The lawyer believes that the case was examined in violation of the norms of criminal procedure law. At the court hearing, he filed a motion to recognize a confession as inadmissible evidence; the court rejected this motion, pointing out that it was filed prematurely. However, the court did not subsequently return to discuss the petition, and it was not resolved.
Mordonov Sh. D. with a request to allow his relative, who was temporarily prohibited from entering Russia, to enter Russia, and offered to resolve this issue for money.
He explained to Mordonov Sh.D. that a pass to the territory of Russia [hidden] would be a violation
Having heard the report of judge L. I. Glazunova, the explanations of Sh. D. Mordonov, and M. Dolgodvorov’s defender. Grounds for recognizing a confession as inadmissible evidence? V., who supported the arguments of the cassation appeals and asked either to cancel the sentence on the grounds set out in them, or to change it by reducing the punishment to one unrelated to imprisonment, the objections of the prosecutor Kuznetsov S.V., who believed that the sentence was the territory of Russia of his fellow countryman, whose entry into Russia was banned until June 2013, while offering money to resolve this issue. At the same time, he stated that the money amounted to [hidden] rubles. he suggested that Russian officials in the [hidden] region and [hidden] autonomous region be allowed to
Is appearance evidence of guilt?
Appearance is the primary evidence of the commission of a criminal offense. However, the judge cannot rely on the confession alone when sentencing. Other evidence is also required to prove that the citizen committed a crime. We are talking about examinations, testimony, confrontations, etc. If they are absent, then the citizen cannot be brought to criminal liability.
During the consideration of the case, the judge must pay attention to the circumstances under which the appearance was written. For example, the confession was drawn up without a lawyer. At the same time, the accused did not know that he could use the services of a defense lawyer. In such a situation, attendance may be considered inadmissible evidence by the court. Accordingly, it will not be taken into account.
After the corresponding Resolution of the Plenum of the Supreme Court was adopted, investigators were required to register appearances on special forms. The rights of the citizen must be printed on them in advance, and he must put his signature under this text. Thus, he confirms the fact that the rights are clear and understandable to him.
