Lawyers achieved an acquittal in a case where the victim was an Investigative Committee employee

On October 5, the magistrate of court district No. 4 of the Leninsky judicial district of Yekaterinburg issued an acquittal to Anton Istomin, who was accused of threatening to kill an investigator.

Investigation version

On September 8, 2021, at about 1 p.m., at a gas station, a conflict occurred between Anton Istomin and Artem Khalilov over a place in line at the compressor for inflating tires. When the first one's turn came, the second one wedged in front of him, because he believed that now it was his turn to use the device. There was a verbal altercation and a fight between the men, after which Khalilov, an employee of the Investigative Committee, reported the attack to law enforcement agencies.

According to investigators, after Artem Khalilov grabbed the compressor hose from Istomin’s hands and began pumping up the tire of his car, the second man took a folding knife from his car. Returning to his opponent, who at that moment was leaning towards the rear wheel of the car with a hose, Anton Istomin put a blade to his neck and threatened to stick a knife. Khalilov, realistically perceiving the threat of murder, returned the hose and began to persuade Istomin not to kill him because of a minor quarrel.

Further, according to investigators, Istomin, being in close proximity to Khalilov with a knife in his hand, made death threats against him several more times and stopped his actions only after he said that they were being filmed by a video camera. Next, Anton Istomin pumped up the tires of his car and drove away.

The actions of Anton Istomin were qualified under Part 1 of Art. 119 of the Criminal Code - a threat to kill or cause grievous bodily harm, if there were grounds to fear that this threat would be carried out.

Consideration of the case in court

Disagreeing with the accusation, Anton Istomin pointed out that when it was his turn to pump up the tires, Artem Khalilov approached the machine and tried to snatch the hose, and a verbal altercation ensued between the men. Then Khalilov grabbed him by the throat and began to squeeze, and after he finally took the hose away, he said: “I’m not finished with you, don’t leave.” After that, according to Anton Istomin, he took a knife from the car for the purpose of defense, but he did not open the blade.

The altercation resumed, and during the course of it, Artem Khalilov pushed him away, took out a phone from the car, and used it to record the license plates of the car and Istomin himself. And he, in turn, photographed Khalilov himself. Further, according to Istomin, Khalilov became less aggressive and he was able to use the compressor without hindrance, after which he left.

Prosecution witness S. testified that the drivers did not inflict any blows on each other, and she did not see any foreign objects in their hands. Witness Kh. indicated that he did not see Khalilov grabbing Istomin by the neck, but he also did not see the latter’s knife.

The defense noted that the defendant recorded injuries on his neck, the duration of which was established by the expert, and it coincides with the day of the conflict.

At the request of the defense, video footage from surveillance cameras was examined in court. Throughout its entire length, it is clear that all the cars approached the wheel inflation apparatus from the side of the pumps; not a single car, except for Khalilov’s Lexus, approached from the opposite side. In addition, the protocol for the inspection of the scene of the incident recorded that the cars, which at the time of inspection were in line for tire inflation, were standing exactly on the side of the pumps, just as Anton Istomin was standing. The photo shows markings, namely arrows on the asphalt, indicating that you need to approach the tire inflation device in the exact direction in which the defendant arrived. Also, prosecution witnesses S. and Kh. testified that the queue is always from the side of the pumps. “Thus, it is obvious to everyone except the victim that he stood out of turn, and not like everyone else, but in the opposite direction,” the defense emphasized.

In addition, it was clear that Khalilov was at the rear wheel of his car and was not looking towards Istomin, who was getting out of his car. “Accordingly, contrary to his testimony, Khalilov could not notice that Istomin opened the door of his car, climbed into it and took a knife,” the defense pointed out.

Further, the recording shows that Artem Khalilov bent over the wheel and saw Istomin, who was heading towards him, but continued to unscrew the nipple at the rear right wheel. At the same time, according to him, at this time the defendant comes towards him with an open knife. The defense noted that, according to the victim's testimony, after this the tip of the five-centimeter blade of the knife touched his neck. However, according to the video, at this moment Anton Istomin’s hand was lowered down.

At the request of the defense, a martial arts specialist and Olympic boxing champion Yegor Mekhontsev was invited, who testified that the video footage showed that Khalilov initiated the conflict, and Istomin defended himself. He also pointed out that the knife in the defendant’s hand was not visible, and the victim’s actions did not indicate that he was afraid of being hit with a cold weapon.

The court agreed with the defense's arguments

After hearing the participants in the trial and examining the evidence, the court noted that the investigating authorities and the state prosecutor did not present indisputable and objective evidence that the defendant committed a crime under Part 1 of Art. 119 of the Criminal Code.

The court came to the conclusion that the initiator of the conflict was the victim - it was he who made incorrect statements about Istomin and provoked the latter to continue the quarrel. As a result of this, the defendant, for the purpose of self-defense, took a knife, the blade of which did not open.

The court noted that Part 1 of Art. 119 of the Criminal Code provides for criminal liability for threats to kill or cause grievous bodily harm if there were grounds to fear that this threat would be carried out. The subjective side of this act is characterized exclusively by direct intent. To qualify a crime under Part 1 of Art. 119 of the Criminal Code, it is necessary to establish that the perpetrator also committed actions that gave the victim reason to fear his implementation, and that the behavior of the perpetrator and his relationship with the victim objectively testified to the reality of the threat. When assessing the reality of a threat, it is necessary to take into account all the circumstances of a particular case: the situation of the crime, the relationship between the perpetrator and the victim, etc. A verbal threat cannot always be perceived as real.

At the trial, from the evidence presented by the prosecution, it follows that, apart from the defendant and the victim, there were no direct eyewitnesses to the events that took place, the accusation was based only on the testimony of the victim. The court indicated that the only eyewitness from the gas station employees interrogated was Kh., from whose read-out testimony it follows that he saw the entire conflict and confidently explained that Istomin did not have a knife in his hands. In the video that was watched, the unfolded knife in the defendant’s hands is also not visible.

The court was critical of the testimony of the victim, who said that he saw Anton Istomin take a knife and move towards him, while the video recording shows that Artem Khalilov was inflating the tire and was not looking in Istomin’s direction. In addition, the victim's subsequent behavior does not indicate that he fears the defendant will carry out the death threat.

“Arguments of Istomin A.D. that he did not commit this crime was not refuted by the evidence collected in the case,” the verdict summarizes. Thus, the court acquitted Anton Istomin and recognized his right to rehabilitation and compensation for harm.

There is no evidence in the case to support the victim's testimony

In a commentary to “AG”, one of the defenders of the acquitted man, lawyer of AK No. 22 “Magnat” Maria Kirilova, considered that the defendant’s innocence became obvious to the court after examining the video recording of the conflict. “The video recorded that it was Khalilov who initiated the conflict, his behavior was aggressive. It is clear that he was not afraid at any point. The video also refutes that Anton Istomin brought a knife to the victim’s throat,” she explained. Maria Kirilova added that the materials of the criminal case do not contain any evidence confirming Artem Khalilov’s testimony that Anton Istomin threatened him.

Another defender, lawyer of the Sverdlovsk Region Administration Elena Afanasyeva, noted that the acquittals were helped by the untruthful testimony of the victim, which does not agree with the video recording, as well as the lack of other evidence. “The prosecution has already submitted an appeal, the date of the hearing has not yet been set - the case is in the first instance,” she said.

Criminal liability

Threats of physical violence are punishable under Article 119 of the Criminal Code of the Russian Federation. Thus, in accordance with Part 1 of the criminal article, for this crime the court may order:

compulsory work for up to 480 years;
forced labor for up to 2 years;
arrest for up to 6 months;
restriction of freedom for up to 2 years;
imprisonment for up to 2 years.

In the presence of aggravating circumstances, a more severe penalty is provided for threat to life. Thus, in accordance with Part 2 of Article 119 of the Criminal Code of the Russian Federation, liability is imposed for threats of physical violence based on national, ideological, interracial, religious, political enmity and hatred:

forced labor for up to 5 years;
imprisonment for up to 5 years.

Also, if the crime was classified under Part 2 of the article for threat to life and intimidation, in addition to the listed measures, a court verdict may deprive the offender of the right to work in certain positions and/or engage in certain activities for up to 3 years.

Please note that there is no separate provision in the legislation on threats to the life and health of a minor child. Therefore, if the life of a child is threatened, the crime is assessed in accordance with Part 1 of Article 119 of the Criminal Code of the Russian Federation (in the presence of aggravating circumstances in accordance with Part 2).

Nuances of a criminal act

The commission of the crime in question is almost always preceded by the emergence of a conflict. Often such a quarrel happens between relatives, close people, neighbors, and everyday acquaintances.

In most cases, the actions of the perpetrator are caused by prior consumption of alcohol. The main feature of the act is its verbal form, expressed orally or by sending a letter or any other message to the victim.

Reason for initiating a criminal case under Art. 119 of the Criminal Code of the Russian Federation is a message from the victim or witnesses and eyewitnesses of unlawful actions against the victim about a crime, registered with the police.

Moreover, how this message will be transmitted to the police - verbally by telephone, in writing by mail, by e-mail, in person - does not matter.

The basis for initiating a criminal case based on a report of threats may be data sufficient to conclude that the actions of the person making the threat constitute a crime.

The most important signs of this crime are those that characterize the actions of the offender:

How realistically the victim perceived the threat addressed to him.
What specific aggressive actions aimed at realizing the threat were carried out by the attacker (attacked, struck, demonstrated weapons, other objects with which he could implement his aggressive statements, etc.), what threats he expressed.
What were the circumstances and environment in which the events reflected in the statement of the crime took place, did they give the victim reason to fear that the threats expressed or demonstrated could be realized.

Based on the results of the criminal procedural audit, a decision can be made to either initiate or refuse to initiate a case. The decision is made taking into account all the information about the circumstances of the incident, which should be sufficient to conclude whether the offender’s actions constitute a crime or not.

Threat by action

This method of committing an offense is slightly less common. After all, people are accustomed to accompanying their aggressive actions with words. But there are also exceptions. For example, a criminal doused a victim with industrial glue, took out a gas lighter and began to strike it, demonstrating that he was going to set the person on fire. A verbal altercation then ensued and the subject inflicted a minor knife wound on the victim. Subsequently, the judge professionally isolated the episode with the lighter from the list of the criminal’s actions and absolutely correctly qualified it as a threat to kill (sentence of the Leninsky District Court of Vladimir in case No. 1-99/2018 dated June 14, 2018).

conclusions

So, crimes arising from the threat of murder or harm to health are quite common in judicial practice. However, in most cases they are carried out in conjunction with other offenses - actual harm to health, destruction and damage to property, and so on. In these conditions, one of the tasks of the investigative bodies, judges and lawyers is the correct qualification of all actions of the suspect or defendant, which is necessary for a lawful verdict and respect for the rights of the participants in the process.

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Internet threat

In recent years, the Internet has also become frequently used to commit such crimes. And it would be nice if the criminals acted anonymously. But no. They write threats to the victim on their own behalf on her VKontakte page (the verdict of the Khabarovsk Garrison Military Court in case No. 1-65/2018 dated May 11, 2018) or even record and post a video message with a promise to deal with the victim on their page (the appeal ruling of the Moscow Regional court in the case (number anonymized) dated 08/03/2017). Offenders do not understand that in this way they seem to be telling law enforcement agencies: “I committed a crime. Come and arrest me." As a result, collecting evidence takes little time. And the criminal’s attempts to prove that someone “hacked” the page and published a message on his behalf do not impress the police.