In murder cases, the courts in most cases side with the victims, sympathizing with them and relying on their opinions. Particularly sensitive judges even find aggravating circumstances where, according to the law, they should not exist.
Fable of the case
A similar situation occurred in Omsk. There the court sentenced the man under Part 1 of Art. 318 of the Criminal Code of the Russian Federation to 1 year of imprisonment, under Part 4 of Art. 111 of the Criminal Code of the Russian Federation to 7 years 6 months in prison. In general - 8 years of imprisonment, serving the sentence in a maximum security penal colony.
The Presidium of the Omsk Regional Court changed the sentence, excluding the instruction to take into account as an aggravating circumstance for a crime qualified under Part 1 of Art. 318 of the Criminal Code of the Russian Federation, committing a crime while intoxicated due to alcohol consumption. Punishment under Part 1 of Art. 318 of the Criminal Code of the Russian Federation reduced to 9 months of imprisonment. The final sentence was 7 years and 9 months in prison.
The convicted person considered such a reduction in the term insufficient, and therefore appealed to the Supreme Court with a cassation appeal.
The man indicated that not all circumstances that are essential for the correct resolution of the case were investigated by the court, the verdict is based on conflicting testimony of witnesses, and there is no evidence that it was his actions that caused the death of the victim.
He believes that the court unreasonably did not take into account the unlawful behavior of the victim, which was the reason for the conflict. He claims that he did not intend to cause grievous bodily harm to the victim, but was in a state of necessary self-defense. He believes that the case was examined with an accusatory bias, the court did not actually evaluate the evidence of the defense, and it was also not indicated in the verdict why the court found some evidence reliable and rejected others. According to the convicted person, the court unreasonably rejected the defense's motions.
The Supreme Court (SC) demanded that lower authorities carefully check confessions
July 20, 2021
The Supreme Court (SC) has demanded that lower authorities scrutinize confessions. Judges are obliged to make sure whether the accused’s repentance was voluntary, and why it happened, say, not initially, but during the course of the investigation of the crime. That is, you need to make sure that this is not a self-incrimination obtained under pressure. But experts doubt that the plenum's advisory clarifications will help solve this long-standing problem. Meanwhile, the Supreme Court has not yet put forward a corresponding legislative initiative, although previously this was normal practice for it.
The plenum of the Supreme Court once again drew attention to the veracity of “candid confessions”, which can be obtained under the pressure of the investigation. Lower authorities should find out whether the suspect has incriminated himself or someone else. For example, if “the defendant has previously disputed the charge or exercised the right to refuse to testify, then the court should clarify his position and make sure that the defendant really agrees with the charge.”
And in general, the Supreme Court explained, it is necessary to check the entire so-called accelerated procedure. For example, a citizen’s request for a special procedure of justice must be submitted in the presence of a defense lawyer and after consultation with him. As lawyers remind, the problem of the reliability of confessions is a long-standing one and, perhaps, the most “subtle” one in criminal proceedings. Thus, over the past year, criminal cases against 373.2 thousand people, that is, approximately 47%, were examined in a special manner. By the way, the courts still must check the case materials: certificates, statements of confession, protocols of investigative actions, materials of operational investigative activities - and in case of inconsistencies, question the words of the defendant. But in practice this usually never happens.
As noted by the managing partner of the St. Petersburg office of Pen & Paper, Alexey Dobrynin
, recently the usual picture is this: a man first desperately fought for freedom and sought evidence of his innocence, and then abruptly stopped his lawyers and agreed to admit guilt. According to him, this is due to the fact that it is not investigators who visit the accused in the pre-trial detention center, who are supposed to establish the truth, but operatives who, at the instigation of the investigators, persuade the prisoner to confess.
“The suspect in the pre-trial detention center is in an extremely serious and unstable psychophysical condition. And he is ready to do a lot just to get some guarantees of reducing the period of detention in captivity, including incriminating himself or another person
", Alexey Gavrishev, managing partner of the law firm AVG Legal, explained to NG
.
A pre-trial agreement, he recalled, is considered an ideal outcome for the investigator, the prosecutor and the court, because then, in essence, there is nothing left to prove, but this practice greatly reduces the quality of the investigation. Most lawyers note that the recommendations of the Supreme Court are demonstrative in nature, but for use on the ground they are almost useless, where they will most likely simply be ignored.
Gavrishev, for example, recalled that the Supreme Court drew attention to the too wide distribution of pre-trial agreements a couple of years ago, but “no significant changes followed.”
“Only a full-fledged judicial reform will help to achieve any changes in this area, which will make it possible to separate the branches of power in the areas of investigation, supervision and trial. Unfortunately, at present there are no prospects for its implementation,”
– Gavrishev told NG.
“The recommendation to the courts to carefully check whether a person has incriminated himself may turn out to be a farce with some kind of imitation of the process and proceedings,” says Asiya Mukhamedshina, a member of the Russian Lawyers Association (RLA).
According to her, today “a person is not protected either before the court or before the security forces if he refuses a false accusation against himself.” Lawyer Sergei Savchenko reminded NG that previously many plenums of the Supreme Court were accompanied by the development of legislative initiatives that could radically affect the situation if adopted. But in this case, the Supreme Court de facto recognizes an obvious problem, and for some reason prefers to solve it in words.
Explanations of the Supreme Court, confirmed by the Chairman of the Inconsult ICA Alexey Kirsanov
, are applied quite arbitrarily by courts of general jurisdiction. In his opinion, one of the key reasons for self-incrimination is “total distrust in the judicial system,” which has a strictly accusatory bias. Meanwhile, there is no effective independent mechanism for overturning court sentences handed down in a special manner in the legislation: “When the accused enters into a contractual relationship with the investigation and the prosecutor, the function of judges is reduced to a formal check. At the stage of concluding an agreement and accepting the citizen’s obligations to admit guilt and expose accomplices in the crime, they are not assigned any role at all.” Kirsanov believes that legislative changes are needed on behalf of the Supreme Court so that lower authorities are given the function of approving a pre-trial cooperation agreement with subsequent verification of the progress of its implementation by all parties.
And then “such judicial control could significantly reduce cases of vicious agreements between the accused and the investigation, when in exchange for the “necessary” confession, the accused has the opportunity to receive a more lenient punishment.”
Head of criminal practice at BMS Law Firm Alexander Inoyadov
stressed that a radical change in the trend towards convicting accomplices against whom incriminating evidence was given should not be expected either.
True, he believes that the question of the quality and validity of the accusation should be addressed not so much to the courts, but to prosecutors and investigators. “ The unspoken ban on acquittals, which judges often hesitate to pass, only plays into the hands of such “crime fighters.”
This problem cannot be solved in any way by clarifications on improving the procedure for judicial proceedings,” Inoyadov noted.
That is, the validity of incriminating testimony must be qualitatively and fully verified at the stage preceding the conclusion of a pre-trial cooperation agreement, and “if it is established that the testimony of such a person is unreliable, the decision to terminate the agreement must be made as soon as possible in order to avoid irreparable consequences.” ALA member Olga Ettler
told NG that
“judges are not so incompetent as to ignore the Supreme Court,” that they “value both their places and their professional reputation
,” and therefore will most likely listen to the explanations of a higher court.
In the form of additional guarantees, the expert pointed out, it would be worth writing in Art. 77 of the Criminal Procedure Code that “confession statements at the pre-trial stages of proceedings can be recognized as evidence only if they are personally confirmed by the defendant in court during the trial.”
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Position of the Supreme Court
The court noted that the actions of the convicted person under Part 1 of Art. 318, part 4 art. 111 of the Criminal Code of the Russian Federation are qualified correctly, but there are still violations.
Aggravating circumstances
In accordance with Part 11 of Article 63 of the Criminal Code of the Russian Federation, the judge imposing punishment, depending on the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, may recognize as an aggravating circumstance the commission of a crime while intoxicated caused by drinking alcohol , the Supreme Court notes. This is exactly what happened in the case of the convicted person.
Meanwhile, having recognized the state of intoxication caused by alcohol consumption as an aggravating circumstance, the court, however, did not motivate its conclusion, and also did not indicate the circumstances and did not provide evidence on the basis of which this conclusion was made.
At the same time, the mere presence of a person at the time of committing a crime in a state of intoxication caused by alcohol consumption is not the only and sufficient basis for recognizing such a state as an aggravating circumstance.
The court in this case did not explain how it came to the conclusion that it was the state of intoxication caused by the consumption of alcohol that contributed to the crime, which is a violation.
What are the consequences of absence from administrative work?
The judge postpones the hearing on the administrative case in situations where the following does not appear in the courtroom:
- any of the citizens who participate in the proceeding, and it must be unknown whether they received notice of the day and place of the proceeding;
- a duly notified offender who does not have state or other public powers and must be present at the proceedings in the courtroom;
- an authorized representative of a citizen who participates in legal proceedings.
Attention! If citizens who must necessarily participate in the hearing do not appear in the courtroom, the judge imposes a fine on them. If the offender fails to appear again, the offender may be subject to arrest.
If all participants in the proceedings who were duly notified of the date and place of the hearing did not appear at the court hearing, the judge shall consider the administrative case in a simplified manner.
The maximum fines for failure to appear in court in an administrative case are as follows:
- individual – 5000 rub.;
- official – 30,000;
- civil servant, municipal employee – 10,000;
- legal entity – 50,000;
- local government body, other bodies and organizations with state or other public powers – 80,000;
- government agency, other government agency – 100,000.
What is the job of a criminal defense lawyer?
First of all, let's figure out what a lawyer does in defense of a criminal case:
- analyzes case materials, legislation, judicial practice and explains to the defendant the possible consequences and risks of various actions;
- taking into account specific circumstances and evidence, develops a defense strategy: acquittal, termination of the criminal case, changing the charge to a more lenient one, reducing the punishment, etc.;
- collects information in favor of the client, including sending attorney requests, obtaining expert opinions, looking for possible defense witnesses, etc.;
- draws up petitions and complaints;
- if the client is in custody, he visits him in the pre-trial detention center (SIZO), monitors the absence of torture and other pressure;
- assists the client during investigative actions and in court;
- if there is such a task, it prepares a criminal case for subsequent consideration of the complaint in the European Court of Human Rights.
The actions of a lawyer in a particular case depend, firstly, on how ready the client is to fight for his fate, secondly, on the professionalism of the defense lawyer, thirdly, on what kind of criminal case it is (bribery or murder, on drugs or robbery, etc.), fourthly, on what the situation is in the case, what and how the investigator does (for example, sometimes it is important to remain silent about a discovered procedural error in order to use it in the future).
In short, a good lawyer knows what needs to be done, how it needs to be done, when it needs to be done and what result can be obtained. It is this knowledge that distinguishes a professional from a person who is trying to defend himself - “with the help of the Internet,” “friends from the pre-trial detention center,” etc. - and as a result, he randomly and chaotically “presses all the buttons at once,” sometimes obtaining a result that further worsens his situation.
You can read about some signs that allow you to decide on the choice of a lawyer at the very beginning here.
In addition, the work of a defense lawyer depends on what stage the criminal case is at.
Work of a lawyer after the trial court
After a criminal case has been considered in the court of first instance, the assistance of a lawyer may be required when appealing a sentence, filing complaints to the ECHR, as well as when resolving issues related to the execution of a sentence (parole, commuting a sentence to a more lenient type of punishment, installment plan and deferment of punishment, etc.).
If you need the help of a lawyer in criminal, family, or civil law, you can call 8-910-188-73-21 or write by email or telegram.
8-910-188-73-21 all methods of communication
Work of a lawyer during a pre-investigation check
The criminal case goes through several stages. The first is a pre-investigation check. Based on its results, a decision is made whether to initiate a criminal case or not. In many ways, the prospects of the business are determined at this stage.
This is where those who go to the operatives “just to talk” make a big mistake, bring them documents or even write a confession. This mistake is not using the help of a lawyer you trust. In practice, there are many cases where the participation of a lawyer in a pre-investigation investigation saved a person from negative consequences and, on the contrary, arrogance (“I have nothing to hide, I will tell everything as it is”) and the desire to save on legal assistance led to a serious deterioration of an initially favorable situation. Understand a simple thing: a good lawyer is your legal security. And sometimes also physical (but more on that later).
A common technique used by law enforcement officials is to first get an explanation without a lawyer, then interrogate the person as a witness (again without a lawyer), and only then, when everything is recorded in the protocols as they need, transfer the witness to the status of a suspect or accused, who is entitled to a lawyer .
Remember: by agreement, a lawyer has the right to participate at any stage of the process, regardless of your legal status (detainee, interrogated, witness, victim, suspect, accused, convicted) and regardless of the desire/unwillingness of the operative, investigator or judge. Therefore, the sooner you have a good lawyer in your case, the better.
General recommendations on how to behave if you are called to the police or detained can be read here.
Another comment on Art. 249 of the Criminal Procedure Code of the Russian Federation
1. The victim, being a party to criminal proceedings, is at the same time the bearer of the most important evidentiary information, whose interrogation at the trial plays a huge role. In cases of public and private-public prosecution, the issue of the possibility of continuing the trial in the absence of a given participant in the process or of postponing it is decided. This issue is resolved taking into account the position of other participants in the process in relation to these most important circumstances, as well as whether the public prosecutor takes part in the trial. The consideration of a criminal case by the court of first instance in the absence of the victim, who is not properly notified of the day of the hearing, is regarded as a violation of the legal right to participate in the trial and to appeal the court verdict in cassation. The Supreme Court of the Russian Federation even earlier, during the 1960 Code of Criminal Procedure of the Russian Federation of the RSFSR, in relation to such cases, spoke in favor of the cancellation of the sentence (based on the results of its review in the manner of judicial supervision) and the return of the criminal case for a new trial by the court of first instance <1>. ——————————— <1> See: BVS RF. 2001. N 9. S. 12 - 13.
2. The failure of a victim to appear in a private prosecution case, as follows from the commented article, entails the termination of the criminal case if the court is convinced that the victim did not appear at the court hearing without a good reason. Of course this is correct. However, the indication that the basis for termination is the absence of a crime, I think, is fundamentally erroneous. The failure of the victim to appear and the innocence of the defendant are phenomena that have nothing in common.
