RIGHTS OF THE PROSECUTOR
The legislator has not established the conditions under which the prosecutor would be obliged to enter into a pre-trial cooperation agreement. In all cases, the prosecutor makes a decision at his own discretion, which is based on a personal assessment of the possible assistance of the suspect (accused) to the investigative authorities and its usefulness for the investigation. No one can force the prosecutor to enter into such an agreement9.
The resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 1610 clarifies that, within the meaning of the provisions of Art. 317.7 and art. 316 of the Code of Criminal Procedure of the Russian Federation, one of the conditions for a guilty verdict against a defendant with whom a pre-trial agreement on cooperation has been concluded is his agreement with the charge. If he does not agree with the accusation, the court decides to terminate the special procedure for considering the case and schedules a trial in the general procedure.
Order of the Prosecutor General of the Russian Federation dated March 15, 2010 No. 10711 directs the prosecutor, when making a decision on concluding a pre-trial cooperation agreement, to pay attention to the possibility of actual fulfillment of the obligations specified in the stated petition. The prosecutor must also:
— request, if necessary, additional information from the initiators of the appeal;
— find out from the suspect (accused) what specific actions he will perform in order to fulfill the cooperation agreement;
— analyze the prospects for cooperation between law enforcement agencies and this person.
In accordance with Art. 317.5 of the Code of Criminal Procedure of the Russian Federation, the prosecutor, with the consent of the accused with the charge brought against him and in the case of approval of the indictment, makes a presentation on the special procedure for holding a court hearing and making a court decision in this criminal case.
In the submission, the prosecutor must indicate:
1) the nature and extent of the accused’s assistance to the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
2) the importance of cooperation with the accused for solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime;
3) crimes or criminal cases discovered or initiated as a result of cooperation with the accused;
4) the degree of threat to personal safety to which the accused, his close relatives, relatives and close persons were exposed as a result of cooperation with the prosecution.
Pre-trial agreement under Art. 131-135 of the Criminal Code of the Russian Federation
Every criminal lawyer, in his work, strives to ensure that the criminal case against his client, if he is not guilty, is dropped. If, however, there is enough evidence against his client, he admits his guilt and does not challenge the charge, the task of a criminal lawyer is to minimize the punishment, i.e. to ensure that his client remains in custody for a minimum short period of time or to protect him from this altogether.
The same situation exists in cases involving accusations of sexual crimes, with some exceptions, those convicted of crimes against sexual integrity cannot be given a suspended sentence (clause “a”, part 1, article 73 of the Criminal Code of the Russian Federation). Parole can be granted only after serving at least four-fifths of the term of imprisonment (clause “e”, part 3, article 79 of the Criminal Code of the Russian Federation).
All this forces the sex crimes lawyer to direct his efforts to ensure that the sentence that will be assigned to the accused is as minimal as possible, i.e. find circumstances that are grounds for mitigating the punishment (Articles 61, 64 of the Criminal Code of the Russian Federation).
One of these methods is the conclusion of a pre-trial cooperation agreement (Chapter 40-1 of the Code of Criminal Procedure of the Russian Federation). A pre-trial agreement is concluded in order to assist the investigation in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, and searching for property obtained as a result of a crime. Therefore, a person accused of a sex crime must “interest” the investigation in the fact that he will help solve and investigate this crime. Due to the fact that crimes against sexual integrity do not include property that was obtained as a result of the crime, the investigation may only be “interested” in exposing other participants in the sexual crime, but this is only possible if the crime was committed by a group of people.
Thus, the accused (suspect) understands that he has something to “interest” the investigation and he decides to enter into a pre-trial agreement.
What should he do and what should he do?
First of all, you need to discuss this with your lawyer who deals with cases of this category, because only a lawyer for sexual crimes, a lawyer under Articles 131-135 of the Criminal Code of the Russian Federation can analyze the situation and foresee all the “pitfalls” and here’s why.
Like any phenomenon, a pre-trial agreement has its advantages, but there are also disadvantages. In order to understand what are the pros and cons of a pre-trial agreement, it is necessary to consider in more detail what a pre-trial agreement is in general.
A pre-trial agreement, or as it is also called a “bargain with the investigation,” is an agreement concluded between the prosecution represented by the investigator and the prosecutor and the defense represented by the accused (suspect) and his lawyer. Based on this agreement, the accused (suspect) undertakes to give the investigation information that the investigation does not possess about new episodes of crime committed by the accused (suspect) himself and (or) accomplices. Provide information about new accomplices in the crime, etc. For this, the investigation undertakes to separate his case into separate proceedings, apply mitigating circumstances against him, and the case must be considered in a special manner. The agreement may also stipulate the maximum sentence that can be imposed on the accused upon sentencing.
The advantages of a pre-trial agreement, as can be seen from the above, is the penalty, which, by virtue of Art. 316 of the Code of Criminal Procedure of the Russian Federation, cannot exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for the crime committed. It is impossible to obtain such “privileges” without concluding a pre-trial agreement, because Cases for especially serious crimes are not considered in a special manner.
The disadvantages of a pre-trial agreement include the risk of termination of the pre-trial agreement. A pre-trial agreement can be terminated in cases where the accused (suspect) provided only information about his own participation in the committed act. He reported information already known to the preliminary investigation authorities. Also, the pre-trial agreement can be terminated if the person refuses to give evidence incriminating other accomplices in the crime. It may be terminated if other data is revealed indicating that the accused (suspect) has failed to comply with the conditions and has failed to fulfill the obligations stipulated by the pre-trial cooperation agreement.
If the pre-trial agreement is terminated, then all the “benefits” that the accused (suspect) could receive are canceled, and all the testimony that he gave earlier will be used as evidence.
All these circumstances indicate that before deciding to enter into a pre-trial cooperation agreement, you need to weigh everything very carefully and discuss it with your lawyer under Art. 131-135 of the Criminal Code of the Russian Federation.
Sexual Offenses Lawyer Art. 131-135 CC.
Constitutional Court: a person who has entered into a pre-trial agreement is not a witness during interrogation in the main case
The Constitutional Court published Determination No. 1893-O/2019 on the complaint of citizen Dmitry Ustimkin, who asked that a number of norms of the Criminal Procedure Code and the Law on Ensuring Access to Information about the Activities of Courts be declared inconsistent with the Constitution.
According to the applicant, parts 2 and 8 of Art. 56, part 2 art. 278 and Chapter 40 of the Code of Criminal Procedure contradict the Constitution, since in accordance with them, a sentence passed in a special manner that has entered into legal force does not prevent the re-initiation of a criminal case for the same crime, the conduct of an investigation and the passing of a sentence in this case based on other factual circumstances. In this case, a person previously convicted under a special procedure may be involved in this case as a witness to testify against an accomplice.
Dmitry Ustimkin also challenged the constitutionality of paragraph 8 of Part 3 of Art. 389.28 and part 2 of Art. 389.33 of the Code of Criminal Procedure in conjunction with Article 401.15 of this Code, since, as he believed, the issuance of an appeal ruling on the basis of invalid norms of the criminal procedure law does not relate to significant violations that influenced the outcome of the case and are subject to mandatory elimination.
The applicant also considered paragraph 2 of Art. 4 and Art. 15 of the Law on ensuring access to information about the activities of courts, since, in his opinion, they allow posting a judicial act containing unreliable information on the official website of the court on the Internet.
Refusing to accept the complaint for consideration, the Constitutional Court recalled its position contained in Resolution No. 17-P of July 20, 2016, according to which an accused and convicted person in a separate criminal case cannot, when the court considers the main criminal case in relation to his accomplice, be awarded the procedural status of the accused (defendant) in the specified main case. Accordingly, the accused and convicted person in a separate case cannot be interrogated as a defendant. It follows from the resolution that such a person gives evidence according to the rules governing the questioning of a witness.
Pre-trial cooperation agreement: what is it and why is it needed?
A pre-trial cooperation agreement can be defined as a mutually beneficial agreement between the prosecution and the defense, which regulates the conditions of liability of the suspect or accused depending on the assistance they provide to law enforcement agencies.
The final decision on signing such a deal is made by the prosecutor. The main goals of the rules governing this institution are to increase the efficiency of solving multi-episode crimes and acts committed by organized groups, to protect the rights of the accused in criminal court, and to simplify and speed up the investigation of criminal cases. As statistics show, the introduction of this institution led not only to facilitating the investigation process, but also to the identification of crimes about which the investigation previously had no information.
For persons who decide to confess, tell about the location of hiding accomplices or wanted property, indicate an impending crime, or otherwise help the investigation, a pre-trial agreement is considered an undoubted blessing. Firstly, the case against such a citizen is separated into separate proceedings, secondly, the punishment for the crime will not exceed 1/2 of the maximum term (size), and thirdly, if there are appropriate grounds, these persons, as well as their relatives people are provided with state protection, which is provided for by Federal Law No. 119 of August 20, 2004.
Status of a subject cooperating with the investigation: what will change?
Now the status of persons who signed a pre-trial agreement is no different from the status of persons who did not do so. However, in practice, a dispute often arises: who such an accused actually is in relation to the main criminal trial. This individual does not act as an accused in the main case, but is also not recognized as a witness, since he is interested in the outcome of the trial.
Protecting the rights of the accused and eliminating a gap in the legislation are the two main reasons why, at the beginning of January 2021, the Ministry of Justice introduced a high-profile bill to the State Duma. According to the Ministry of Justice, the Code of Criminal Procedure of the Russian Federation should be supplemented with two articles: one of them establishes the legal status of the person who signed the agreement, and the second establishes the procedure for interrogation and reading out evidence in the courtroom.
The creators of the bill propose to give the accused the same rights as a witness, except for the right to refuse to testify against themselves and their close relatives. In addition, the accused will be assigned new responsibilities - immediate appearance when summoned by the investigator or the court, as well as non-disclosure of information that became known to him at the stage of the preliminary investigation.
