Inadmissible evidence in criminal proceedings, reasons for inadmissibility

The basis of criminal proceedings is the principle of the presumption of innocence. No one can be found guilty of committing a crime until his guilt is proven and determined by a court verdict. This rule is enshrined in the Constitution, provisions and norms of the criminal procedural legislation of the Russian Federation.

In order for the court to find a citizen accused of committing a crime guilty, the investigative authorities must collect and present sufficiently strong evidence to the judges for consideration. Evidence that allows us to reveal all the circumstances of the case includes:

• testimony obtained during interrogations of suspects, interviews with victims, witnesses, confrontations of objects of investigation;
• various objects, documents that served as an instrument, means, or object of the crime and allow us to clarify the overall picture of what happened;
• conclusions of various types of forensic examinations, testimony of independent experts;
• official protocols of criminal procedural activities carried out.

Inadmissible evidence in criminal proceedings

All evidence provided to the court must be collected legally in accordance with the requirements and standards approved by the Code of Criminal Procedure of the Russian Federation. Inadmissible evidence collected in violation of the law will not have legal force, i.e. the court will not accept them as the basis for the accusation.

General definition of inadmissible evidence

Evidence provided by investigative authorities may be considered inadmissible by judicial authorities if the norms established by law were violated in relation to their source or during collection. The Constitution of the Russian Federation directly prohibits the use in legal proceedings of evidence that was obtained and collected in violation of the laws (Article 50). This constitutional norm is determined in more detail by the provisions of a number of articles of the Code of Criminal Procedure.

You cannot use evidence that was obtained in violation of the law.

According to criminal law, such groups of inadmissible evidence can be distinguished.

1. Testimony that was taken during pre-trial interrogations of persons suspected of committing crimes in the absence of a lawyer, including cases when the interrogated persons refuse a lawyer. Information that the accused refused to confirm during the trial is also considered inadmissible.
2. Information based on assumptions, conjectures, and rumors obtained from interviews with witnesses and victims in the case under investigation. Information in which the interviewed persons were unable to indicate reliable sources of their information is also unacceptable.
3. Other evidence collected in violation of established norms and requirements of the criminal procedure code.

Evidence cannot be based on assumptions, conjectures, etc.

As you can see, the legislation leaves open the list of evidence that may be considered inadmissible in court.

Important! When considering evidence, judicial authorities in each specific case must determine the legality of their receipt and compliance with the requirements of criminal law.

Categories of Inadmissible Evidence

Article 75 of the Code of Criminal Procedure of the Russian Federation allows any evidence obtained with any violation of the criminal procedure law to be classified as inadmissible. Thus, a violation of the Code of Criminal Procedure of the Russian Federation when obtaining testimony, material evidence listed in Art. 81 of the Code of Criminal Procedure of the Russian Federation, documents, information, expert opinions are the only basis for declaring evidence inadmissible.

Three categories of inadmissible evidence are specifically stipulated:

1. Unconfirmed testimony in court of a suspect and accused interrogated as part of a criminal investigation without the participation of a defense attorney, including in cases of voluntary refusal of a defense attorney. If, for example, the accused admitted his guilt during the investigation and did so without his lawyer, and then in court refused to confess, then such testimony will not have any significance.
2. Testimony of witnesses and victims, which are based on conjectures, rumors and (or) assumptions, as well as such testimony in which the witness is not able to name the source of information.
3. Documents, information, items that are part of a lawyer’s record-keeping and received as part of operational investigations or investigative actions. An exception is tools, means, equipment for committing a crime or with traces of a crime.

All other evidence regarding which the question of inadmissibility arises is assessed individually for compliance with the requirements of the Code of Criminal Procedure of the Russian Federation upon receipt (provision, seizure, etc.).

Recognition of evidence as inadmissible

Evidence is declared inadmissible in the manner provided for in criminal procedure legislation. First, the grounds must be established that allow the evidence to be declared inadmissible, then a decision is made on the inconsistency of the legality of the evidence provided to the court and on the recognition of such evidence as inadmissible.

The right to petition orally or in writing to have evidence declared inadmissible is vested in the parties participating in the trial, judges, investigators, interrogators, state prosecutors - prosecutors. The conditions, procedure for filing, and deadlines for making a decision on the merits of the petition are regulated by the general rules for considering applications to the bodies of inquiry and judicial proceedings. The adopted resolution must be motivated and contain the grounds for refusing or satisfying the petition.

Parties participating in the trial may petition to have evidence declared inadmissible.

Evidence collected during the pre-trial investigation that is declared inadmissible has no legal force. They cannot form the basis of an accusation or serve as a basis for proving individual circumstances of the case.

Important! However, during the trial, one of the parties has the right to petition for a review of the illegality of the excluded evidence and recognition of it as admissible.

On the procedural procedure for declaring evidence inadmissible

Sometimes courts want to create the appearance of compliance with criminal procedural laws. In this case, the court may partially grant the petition and exclude insignificant evidence that will not affect the resolution of the case on the merits. In judicial practice, the testimony of the suspect, the accused, confrontations not confirmed in court, given in the absence of a defense lawyer, including cases of refusal of a defense attorney, as well as explanations of these persons are most often excluded from evidence.

Testimony of the suspect, accused, defendant, if Art. 51 of the Constitution of the Russian Federation. Testimony of the victim, witness, based on conjecture and assumption. It is extremely rare for courts to exclude fundamental evidence, for example, a record of a search and seizure of drugs and weapons. The exclusion of one such evidence automatically entails the recognition of all evidence derived from it as inadmissible evidence according to the “fruit of the poisoned tree” rule and can lead to an acquittal.

I would like to touch upon one more problem concerning the procedural procedure for excluding evidence.

In accordance with Art. 235 of the Code of Criminal Procedure of the Russian Federation, the court may consider and resolve requests to exclude evidence at the preliminary hearing stage. The exclusion of evidence at this stage is intended to protect the court from the impact of evidence obtained in violation of the law.

Let's give an example. The court is considering a criminal case under Part 1 of Art. 222 of the Criminal Code of the Russian Federation. During the preliminary hearing, the record of the search during which the gun was seized is excluded. In fact, the search protocol is the fundamental procedural document on which the entire evidence base in a criminal case is built. And in this case, it is necessary to exclude from the evidence the expert’s opinion, testimony of witnesses and other evidence.

Obviously, such a court decision will lead to the end of the trial. The exclusion of the search protocol from the evidence will mean the need for an acquittal. The norms of the Code of Criminal Procedure of the Russian Federation do not allow a decision to acquit the defendant during a preliminary hearing. An analysis of judicial acts of the Supreme Court of the Russian Federation allows us to conclude that during a preliminary hearing courts rarely exclude evidence, especially those that are fundamental.

Courts try to maintain the appearance of impartiality and “neutrality” until later stages of the trial, while at the same time trying to examine inadmissible evidence during the trial. It is for this reason that the defense rarely makes a motion to exclude evidence at a preliminary hearing, understanding that the court will refuse to satisfy the motion, and the prosecutor will have the opportunity to “neutralize” the consequences of the violations committed in the future.

Thus, the current judicial practice turns Art. 235 of the Code of Criminal Procedure of the Russian Federation into a “dead” procedural norm. Let us consider the position of the prosecution when considering requests to exclude inadmissible evidence, namely, the prosecutor participating in the judicial investigation. According to clause 1.9 of the order of the Prosecutor General of the Russian Federation dated September 6, 2007 No. 136 “On the organization of prosecutorial supervision over the procedural activities of preliminary investigation bodies,” namely clause 1.9, “the prosecutor, while supervising the procedural activities of preliminary investigation bodies, must ensure compliance with the requirements of .3 tbsp. 7 and art. 75 of the Code of Criminal Procedure of the Russian Federation on the inadmissibility of using evidence obtained in violation of the procedure established by law.”

In accordance with. Part 1 Art. 21 of the Federal Law “On the Prosecutor's Office of the Russian Federation” the subject of supervision is compliance with the Constitution of the Russian Federation and the implementation of laws in force on the territory of the Russian Federation. Within the meaning of the above legal norms, in the event of discovery of evidence obtained in violation of the law, the prosecutor (state prosecutor) does not have the right, but is obliged to recognize this evidence as inadmissible or independently petition the court about this. And only in rare cases does the state prosecutor agree to exclude insignificant evidence.

The author has studied about a hundred criminal cases (including direct participation in their consideration). In none of them did the state prosecutor file a motion to exclude evidence obtained in violation of the law by the bodies of inquiry and investigation, as if they had never violated the law. Based on an analysis of judicial and prosecutorial practice in declaring evidence inadmissible, several conclusions can be drawn.

Judicial practice is replete with cases of violation of the criminal procedural law regarding the recognition of evidence as inadmissible and often violates the rules associated with the exclusion procedure. Options for making decisions on this matter were described by the author in the article. Such deviations from the law indicate that the courts are not ready to comply with the law in terms of declaring evidence inadmissible and, in general, to impartially consider a criminal case.

Prosecutor's practice indicates that public prosecutors often do not comply with the requirements of procedural law and interfere with the defense and the court in implementing the constitutional provision on the exclusion of inadmissible evidence. Such actions can only be justified by the fact that the interests of maintaining the prosecution prevail over the interests of maintaining the rule of law. A formal approach to the consideration of requests to declare evidence inadmissible from the point of view of the law will indicate a violation of the principle of legality when the court makes a procedural decision to exclude evidence.

Author: O.N. Palieva

Category of appropriate sources of evidence

One of the main conditions for determining whether evidence is admissible or inadmissible is the reliability of the information obtained as a result of the investigation. At the same time, the law defines the following circle of persons who are appropriate sources of evidence. Let's list who belongs to them.

1. Direct participants are victims, suspects, accused, as well as witnesses to the crime or individual circumstances related to the case.
2. Employees of crime investigation bodies, as well as other persons involved in drawing up protocols of investigative activities - investigators, witnesses, representatives of expert groups.
3. Participants in court proceedings are civil plaintiffs, defendants, and their representatives.
4. Individuals, legal entities, government organizations providing various types of supporting documentation that was used in the investigation.
5. Citizens who presented to the investigative authorities objects that have signs of physical evidence in this case.

A certain circle of people is an appropriate source of evidence

There is a point of view that sources of evidence may include procedural forms of evidence - protocols, expert opinions, reports, testimony, documents, physical evidence. However, Article 75 of the Code of Criminal Procedure defines as inadmissible evidence contained in the information of witnesses (that is, individuals) who cannot indicate the primary source of the information they presented.

In accordance with the law, certain admissibility requirements are imposed on sources of evidence, which differ from procedural forms of evidentiary information. The primary source must be a real person - a direct participant or witness of the case under consideration, individual circumstances associated with it, whose identity can be established and verified.

Evidence from unknown, unidentified persons whose information cannot be cross-checked is considered inadmissible. This also includes information obtained as a result of investigative and operational activities from unnamed primary sources who assisted the investigation by investigators on condition of anonymity.

Important! Moreover, such data will be considered unacceptable even if recorded in officially compiled reports by law enforcement officers.

If information from unidentified persons cannot be verified, it is considered inadmissible evidence.

The legislation defines certain categories of citizens and officials who may be participants in an investigation or trial, but will not be considered appropriate sources of evidence because they received information about the circumstances of the case in connection with participation in legal proceedings or as a result of their professional activities. These include:

• judges, jurors of this trial;
• defense attorneys, representatives of the accused who provided legal assistance to a person accused of committing a crime in accordance with a concluded agreement or as assigned by a bar association;
• clergy, regardless of the confession of the accused;
• in the absence of consent - deputies of the State Duma, members of the Federation Council exercising their deputy powers.

Important! Certain conditions for recognition as specific sources of evidence are also imposed on other participants in the process.

Some categories of citizens cannot be considered appropriate sources of evidence

Everything about criminal cases

List of significant violations

Inadmissible evidence, selection of materials

According to clause 3, part 2 of 75 Code of Criminal Procedure

all evidence obtained in violation of the Code of Criminal Procedure is inadmissible. It is almost impossible to list all types of evidence inadmissible on this basis - the list of possible types of violations is too large.

This very general definition is specified in paragraph.

Resolutions of the Plenum of the Supreme Court “On the Court of First Instance” are inadmissible as evidence if:

- when collecting and securing them, there were significant violations of the procedure established by the Code of Criminal Procedure for their collection and securing,

- if the evidence was collected and secured by an improper person or body,

- and if the evidence was obtained as a result of actions not at all established by the Code of Criminal Procedure.

This is also not a very specific definition, which gives rise to rather contradictory verdicts (in one case the evidence was recognized as having been obtained in violation of the Code of Criminal Procedure, but in another, similar case, it was not recognized). In addition, this is not a closed list; the Supreme Court only clarified what, in particular, is meant by evidence obtained in violation of the Code of Criminal Procedure.

Justification of the verdict by inadmissible evidence

Use of inadmissible evidence

in the sentence this is, of course, a violation.

But the fact that evidence is inadmissible does not mean the entire verdict is automatically cancelled. Inadmissible evidence is simply excluded from the verdict. It all depends on the significance of this evidence - if it is key, then its exclusion causes the entire charge to crumble and then the verdict is overturned. And if there is enough other evidence without it, then its exclusion only entails a technical change in the verdict (the mention of this evidence is simply removed from the text, and everything else remains).

So, inadmissible evidence is evidence obtained in violation of the Criminal Procedure Code. It has no legal force, cannot be used as the basis for an accusation and cannot prove anything at all ( Part 1 75 of the Code of Criminal Procedure

). This is the general definition of inadmissible evidence.

Here are some examples of what practice understands as unacceptable evidence:

Evidence obtained by an improper person or body

This is when a case is initiated and conducted by a department that is not exactly required by law.

For example

: they opened a case in the usual manner against a specific citizen and began to investigate.
And then it turned out that this was not an ordinary citizen, but a deputy of a local government body (i.e. a special subject
). And for special subjects, their own procedure for initiating a case has been established - it cannot be initiated by an ordinary investigator, a larger boss is needed here (the head of the investigative committee for the subject of the Russian Federation). This means that everything that the investigator “investigated”, everything that he collected, is unacceptable evidence, because he had no authority to do this without special permission. Resolution of the Presidium of the Supreme Court of the Udmurt Republic dated September 28, 2018 N 44у-95/2018.

Such violations include cases of initiation of a case with a violation of investigative jurisdiction (only substantive - 151 Code of Criminal Procedure

, but not territorial –
152 Code of Criminal Procedure
).

Evidence obtained in significant violation of the procedure established by the Code of Criminal Procedure

The Criminal Procedure Code has many procedures for obtaining evidence: any investigative action is such a procedure. Violation of the procedure results in the inadmissibility of the evidence obtained. But, again, the violation must be significant.

For example, the absence of a court decision to search a home ( Part 3 182 of the Code of Criminal Procedure

) is a significant violation of the procedure.

But, let’s give an example when the procedure established by the Code of Criminal Procedure is clearly violated, but the violation is still insignificant (from the point of view of practice).

Example:
195 of the Code of Criminal Procedure
establishes a fairly clear procedure for appointing and conducting a forensic examination - first, the investigator makes a decision to order an examination, then introduces it to the accused, and only after that the examination itself is carried out.
This procedure allows the accused, before the examination takes place, to ask his questions to the expert or challenge him ( clause 11, part 4, 47 of the Code of Criminal Procedure
).

But in reality, what often happens?

The investigator simply at one moment gives the accused both the order for the examination and the examination itself, which has actually already been carried out - go ahead, get acquainted with everything at once... This is an obvious violation of the procedure established by 195 of the Code of Criminal Procedure

, and the Constitutional Court of the Russian Federation has already said many times that this cannot be done (for example, the Constitutional Court’s Ruling of 02/05/2015 No. 259-O).
But, this is a minor
violation, although it is a violation. Because, according to the logic of the law enforcement officer, there is no need to quibble over minor procedural issues; you can ask the expert about your questions in court a little later and ask for a repeat examination. And if they refuse (which is very likely), that’s a completely different story. An example of such logic, not in these words, of course, but in more official language, is the Appeal Ruling of the St. Petersburg City Court dated June 27, 2021 No. 22-5123/17.

You can read more about this type of violation here: Read the resolution

after the examination, the significance of the violation.

Evidence obtained outside the scope of the Code of Criminal Procedure

This violation most often involves the evidence presented by the defense. a specialist’s opinion as an alternative to the conclusion of a forensic examination.

. When the conclusions of a forensic examination seem dubious or simply unprofessional, then the defense makes “its own examination” (procedurally, such evidence is considered a specialist’s conclusion).

It would seem that everything is according to the law, this is a type of evidence ( clause 3.1 part 2 74 of the Code of Criminal Procedure

).
And the rule, part 2.2 159 of the Code of Criminal Procedure,
generally says that the defense cannot be denied the inclusion of a specialist’s opinion (if it is on the merits of the case).

But there are such decisions: “As for the specialist’s conclusion, which the lawyers presented to the appellate court, the judicial panel cannot recognize it as admissible evidence, since the conclusion was obtained in a non-procedural way, that is, in violation of the procedure for the participation of a specialist in criminal proceedings, established 168, 270 of the Code of Criminal Procedure of the Russian Federation.” Appeal ruling of the Moscow City Court dated February 28, 2018 in case No. 10-695/2018.

In other words, it is not the investigator who attaches this expert’s conclusion, explains his rights, etc., but some kind of lawyer, so all this is not within the framework of the Criminal Procedure Code. And such decisions are not at all unique. True, it is worth noting that the Supreme Court sometimes directly criticizes such “tricks”.

For example

: “It is impossible to agree with the conclusion of the court of first instance that the expert’s conclusions should not be taken into account due to the fact that they were “obtained outside the framework of the trial and in violation of the procedure for conducting forensic examinations.” This conclusion contradicts the provisions of Articles 53, 58, 86 of the Code of Criminal Procedure of the Russian Federation, according to which the defense attorney has the right to collect evidence, including by obtaining a specialist’s opinion. He may also ask the court to question a specialist to clarify relevant issues, including those related to his giving an opinion.” Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 24, 2018 N 73-APU17-25.

In this case, the Supreme Court indicated to the lower court that this cannot be done - the Code of Criminal Procedure allows the defense to also obtain a specialist’s opinion. He indicated, but considered that this conclusion still does not solve anything, therefore, in general, everything is correct... the verdict is upheld.

This is all to say that violation of violation is discord. There may be a violation and even recognized as such by the court... but at the same time, it does not really affect anything.

Illegal composition of the court

This violation is directly established by law as significant ( clause 2, part 2 389.17 of the Code of Criminal Procedure

).

The illegal composition of the court is understood not only as some kind of “disorder” with specific judges, but also as a general violation of the rules of jurisdiction ( 31 Code of

). This is logical - an incorrectly defined court means the “incorrectness” of all the judges of that court.

Plenum on appeal ( clause 19

) and the Plenum on Cassation (
clause 20
) also directly say that such a violation is grounds for canceling the verdict and is relevant for any stage of appeal.

At a general level, it is clear that the illegal composition of the court means that the case was considered by the wrong court or judge who should have been by law. By law - this means in compliance with all rules of jurisdiction ( Chapter 5

Code of Criminal Procedure) and in the absence of grounds for disqualification of a particular judge (
63 Code of Criminal Procedure
).

And since the case was considered by the wrong court, then this violates constitutional law - an article of the Constitution (no one can be deprived of the right to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law).

Let us examine what exactly is meant in practice by the illegal composition of the court.

Case studies

Most often, errors occur in the distribution of cases between magistrates and district (city) courts. To each his own - the magistrate cannot consider cases that fall within the jurisdiction of the district court, this is obvious. But the district court cannot take over the case of the magistrate, although he is higher than him in the hierarchy of the judicial system. For example, the sentence was overturned because the case was considered by the city court, but should have been considered by the magistrate (clause 1.5 “Bulletin of judicial practice of the Moscow Regional Court for the third quarter of 2021”).

There is also confusion in the appeal - after all, the appeal can be in different compositions - it can be one judge (single), or there can be three judges, depending on the severity of the crime. And the severity of the crime may change during the process. For example, a person is accused under Part 3 146 of the Criminal Code

(copyright infringement, felony).
In the verdict, the court reduces the severity of the charge to Part 2 146 of the Criminal Code
(and this is already medium severity). And in the appeal, the case is considered by one judge (based on the fact that it is of average severity). But it must be considered by three judges (based on the originally charged gravity, and not the changed one). This is a mistake and this is a reversal of the sentence. Resolution of the Presidium of the Moscow Regional Court dated May 10, 2018 N 192 in case No. 44у-87/2018.

Another error, which again is related to the appeal, is when the appellate court overturns the verdict and sends the case down (to the first instance) for a new trial by a new court. But the new composition turns out to be not entirely new. In this example, the case was returned for review by another judge, but the judge was still the same as the first time. Resolution of the Presidium of the Tambov Regional Court dated 08/02/2018 N 44у-45/2018.

But the most difficult mistake to motivate is the consideration of a case by a judge who has already formed an opinion on the circumstances of this case before its consideration. The simplest cases are indicated in 63 Code of Criminal Procedure

– this is when one judge considers an appeal/cassation/supervisory complaint against his own decision.

How is this possible? For example, the judge passed a verdict, and while all these appeal procedures are going on (forwarding the case, notifying the parties, etc.) he was promoted and became an appellate judge. And his own sentence falls on him. The case is purely theoretical - an error in this form is unlikely.

A more likely case is when the verdict is overturned on appeal, it is returned to the first instance, there it is decided again and again returns to appeal for a new round. And on this second round of appeal it turns out that the same judge who overturned the verdict the first time ( Part 2 63 of the Code of Criminal Procedure

).

Less obvious cases are not when a judge “jumps” up the career ladder or constantly “appears” in different instances in one case, but when he simply made some other procedural decision in the case before passing a verdict.

For example, he chose a preventive measure or returned the case to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure

. And only then he examined the case and passed a verdict.

But this in itself is not a violation - choosing a preventive measure or returning it to the prosecutor does not prevent the same judge from passing a sentence. The main thing is not to evaluate the circumstances of the case based on the merits of the accusation.

For example

, when returning it to the prosecutor, the court indicated that the circumstances of the case indicate that the crime committed was more serious than what was charged in the case (
clause 6, part 1, 237 of the Code of Criminal Procedure
). This means that he expressed his position on the merits of the accusation, which can only be done when passing a sentence. Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 12, 2018 N 19-APU18-15SP.

Another case of violation of impartiality is when one judge judges several accomplices in a crime, but not in one case, but in different cases: one verdict in relation to one accomplice, another verdict in relation to another. In other words, the judge examines the same circumstances of the crime, but issues different sentences. This happens when the case of individual accomplices is separated into separate proceedings. Or they simply first caught and tried one accomplice, and then caught the other. In such a situation, according to the second verdict, the judge will no longer be impartial. He had already concluded for himself earlier that although this second accomplice has not yet been convicted, everything is clear from him (you just need to change the names in the verdict, and the circumstances of the crime have already been established in the first verdict). This is also an example of the illegality of the composition of the court. Resolution of the Presidium of the Vladimir Regional Court dated December 4, 2017 in case No. 44у-81/2017

.

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Determining the appropriate subjects for evidence-gathering activities

The norms of criminal procedural legislation define the circle of subjects who are vested with the right to collect and study evidence within the framework of criminal proceedings:

• investigators;
• investigators, other officials of investigative bodies;
• prosecutors;
• lawyers for the accused;
• judges.

The result of the activities of such persons should be precisely different types of evidence. Other participants in the trial are given the opportunity to provide various information, objects, and documents within the framework of the case.

Important! However, all this evidence will be recognized as evidence only if it is added to the collected evidence base of the pre-trial investigation materials by the investigative authorities or by court decision.

The collection and examination of evidence can be carried out by investigators, prosecutors, lawyers, judges

Proper subjects of collection and examination of evidence must comply with certain legal requirements. First of all, in relation to them there are no grounds for disqualification from participation in the process. There are other conditions under which the named participants in the case under investigation will have the rights to collect and examine evidence.

For investigators:

• subject to compliance with the requirements for investigative jurisdiction of the case;
• after an official decision is made to initiate a case or approval of individual decisions to initiate the relevant criminal proceedings;
• in cases of a separate assignment from investigators of another territorial jurisdiction;
• when included in an investigative group created by decision of the prosecutor's office to carry out preliminary investigative measures.

Once a formal decision has been made to initiate a case, investigators can begin collecting evidence.

Similar conditions apply to investigators for recognizing them as proper subjects of evidence collection. At the same time, inquiries should be carried out as independent forms of pre-trial preliminary investigation.

Important! Persons who, within the framework of the same criminal case, have carried out or are carrying out actions of an operational investigative nature cannot be allowed to carry out investigative activities.

For other officials of the investigative bodies:

• in cases where there are grounds for urgent investigative measures;
• if the investigator or prosecutor has given a written order about the need to carry out certain investigative measures by employees of the investigative bodies;
• the protocols of investigative measures included appropriate notes on the possibility of involving representatives of the investigative bodies to carry out actions of an operational investigative nature.

Persons who, within the framework of the same criminal case, carry out operational investigative actions cannot conduct an inquiry.

For prosecutors:

• after the official acceptance of this criminal case;
• in cases of personal participation in the preliminary investigation, its individual stages or activities.

For judges:

• in cases of compliance with legal requirements on the jurisdiction of cases;
• after the official receipt of the case for consideration with appropriate distribution by the chairman or collegial body of the court.

The following methods are provided for lawyers to collect admissible evidence:

• by collecting documents, objects, information that relate to the circumstances of this criminal proceeding;
• through surveys of participants in the case under consideration on the basis of their voluntary consent;
• by collecting characteristics related to the case, various certificates, and other documentation.

Lawyers can interview participants in the case under consideration, collect documents, items related to the crime, etc.

Important! Lawyers acquire the authority to collect admissible evidence after concluding appropriate agreements with the client or in the event of being appointed as a defense attorney in a given trial.

Requirements for choosing the appropriate method of collecting evidence

In certain situations, evidentiary materials may be considered inadmissible if the investigative authorities have chosen a method of action to obtain information that is inconsistent in its content with the legal procedural requirements in a given criminal case. Arbitrary replacement of types of evidence collection is illegal, which becomes the basis for the loss of legal force of evidence collected in this way.

For clarity, the following examples can be given:

• replacing the need to present physical evidence or persons for identification with interrogations or confrontations;
• replacing inspections with searches;
• replacing seizures of property with seizures;
• replacement of additional examinations with interrogation of experts or specialists.

Collection of evidence must follow established rules

Each stage of the investigation and individual investigative measures must be structured and carried out in such a way as to ensure the maximum possible reliability of the information collected.

Important! Information obtained in an inappropriate manner during the investigation of the case will become the basis for doubts by the judicial authorities and jurors as to their correspondence to reality. The choice of the type of each investigative action must be determined by the goals established by law.

What violations lead to inadmissibility of evidence?

Based on the wording of Art. 75 of the Code of Criminal Procedure of the Russian Federation, the nature and extent of the violation of procedural law does not matter.

The violation must concern the procedure for obtaining specific evidence when performing a specific procedural (investigative action):

1. Testimony of a victim, witness, suspect, or accused is obtained during the interrogation of a person having a certain procedural status, as well as during an investigative experiment, verification of testimony on the spot or a confrontation. In each case, the interrogation or other form of testimony must proceed in compliance with established requirements. Thus, in particular, an explanation of rights and obligations is mandatory. In some cases, when obtaining testimony, the participation of other persons is required, for example, a teacher, legal representative, translator, defense lawyer. Violation of the requirements of the Code of Criminal Procedure of the Russian Federation when obtaining testimony is grounds for recognizing the testimony as inadmissible evidence. It will also be a violation to interrogate a person who does not actually correspond to the procedural status in which he is interrogated. This basis often includes situations where a suspect is actually interrogated by a witness, although he should be interrogated precisely as a suspect.
2. Violations related to obtaining material evidence are often committed. This includes, first of all, objects and documents related to the crime that can help in its detection or establishment of the circumstances of the crime. As a rule, material evidence is obtained (seized) during an inspection of the crime scene, search, seizure, investigative experiment, and less often during other investigative actions. The receipt of material evidence must be checked for compliance with the requirements of the Code of Criminal Procedure established for the investigative (procedural) action in which the evidence was received.
3. An expert’s opinion is the most difficult evidence in terms of assessing its admissibility/inadmissibility. Here, sometimes it is necessary to analyze and evaluate the entire process of conducting an examination - from obtaining materials for research and ordering an examination to carrying out the research and preparing a conclusion. In addition, it should be borne in mind that if the evidence submitted for research is considered unacceptable, then the conclusion is automatically called into question regarding admissibility. Other possible grounds for inadmissibility of an expert’s opinion include:

• information calling into question the professional level of the expert, his competence, objectivity, independence and other qualities required for an expert;
• violations of the Code of Criminal Procedure when ordering an examination (making a decision and familiarizing the participants in the process with it);
• violations of the Code of Criminal Procedure and other regulations during the conduct of research, including violations related to expert activities.

1. Protocols of investigative and judicial actions. Not many people know that these documents themselves are evidence and must meet certain requirements for drafting and execution. However, violations and mistakes are often made here. Sometimes they forget to put the date or time, or they put it in, but it’s wrong. Often a signature is missing in one place or another. Since many protocols today are printed (filled out) on a computer, technical errors, omissions of columns, leaving old records from previous protocols, etc. cannot be ruled out.
2. Results of operational investigative activities (ORA) and operational investigative measures (ORM). It must be said right away that the results of operational investigations and operational investigations are not in themselves evidence in criminal cases and cannot be included just like that. They are not included in the list of evidence in a criminal case, which is determined by Art. 74 Code of Criminal Procedure. Due to the incorrect approaches of investigators and interrogators to the rules for introducing operational and operational activities, a large number of mistakes are made. Moreover, very often it is on the results of such activities that both the prosecution and the entire evidentiary block are based. In order for the results of an operational investigation and operational investigation to receive the status of evidence, they must be:

• checked for legality of receipt within the framework of the relevant ORM;
• examined with the drawing up of a protocol and, if necessary, with the use of technical means and the participation of a specialist (expert);
• examined, if necessary, within the framework of an appropriate examination for authenticity and absence of distortions (damages);
• attached to the case as documents or material evidence - depending on what criteria they meet.

Often, violations of the law are obvious and do not require much effort to identify them. Their main reasons are the low professional level of operational workers, investigators and interrogators, inattention or negligence on their part. But there are also controversial situations. As a rule, disputes flare up where evidence is of particular importance to the case and not everything went smoothly when it was received.

The most frequently questioned are:

• expert opinions;
• results of searches and seizures;
• ORM results;
• a chain of interconnected evidence on which the accusation is based.

Legality of procedural forms of collecting evidentiary information

The procedural forms of actions taken to collect evidence must strictly comply with the standards enshrined in the Code of Criminal Procedure of the Russian Federation. For example, it is unacceptable to conduct searches before the official initiation of a criminal case or without a preliminary issued order to carry out such investigative measures.

Failure to comply with the legality of procedural actions, conditions, guarantees during the collection of information necessary for the investigation leads to a significant violation of the interests and rights of participants in such procedural activities. At the same time, the court and jurors will have insurmountable doubts about the reliability of the evidentiary materials presented for consideration.

Important! As a result, if the legality of the procedural registration is not observed, the information obtained will be classified as unacceptable, even if its sources and methods of collection comply with the legal requirements.

It is unacceptable to conduct searches before the official initiation of a criminal case

Requirements for the procedure for determining the admissibility of evidence

There is an opinion that literally every violation of procedural norms, any deviation from the action prescribed by law to collect evidence or verify the information received subsequently leads to the recognition of the information presented to the court as inadmissible. In reality, this occurs due to systemic non-compliance with the Code of Criminal Procedure, and not its individual provisions.

Recognition of the inadmissibility of collected evidence is possible in situations where deviations from the requirements of the law led to a violation of the basic principles of judicial independence and equality of parties in adversarial proceedings.

Important! If the law provides for a way to neutralize the consequences of such violations and these means have been used and the feasibility of their use has been proven, then the collected evidence base will be considered admissible for consideration.

If evidence collection activities involved a violation of the law, such evidence will be considered inadmissible

As an example, we can cite a situation where investigators did not warn a witness about his right not to testify against himself or his loved ones. Overall, this is a serious departure from procedural rules. But if the witness confirms the voluntary nature of giving evidence, the consequences of such a violation are not irremovable, they do not affect the principle of equality of parties to the trial. Accordingly, information obtained in this way must be considered admissible for use in court.

Evidence obtained with deviations from procedural norms, the consequences of which cannot be neutralized, will be considered legally void. For example, interrogation using torture will lead to a gross violation of rights and a violation of the equality of the parties in the adversarial process.

Important! As a result, this will entail the recognition of the inadmissibility of the evidentiary materials collected in this way.

It is also necessary to take into account that not all deviations from the requirements of the Code of Criminal Procedure, including fatal ones, are significant for the collection and verification of evidence. For example, the presence of persons under the age of sixteen in the courtroom during the trial, or the summoning of witnesses for questioning through a telephone call rather than an official subpoena, are violations of procedural rules, but in no way affect the procedure for obtaining evidence. Such non-compliance with the provisions of the Code of Criminal Procedure may lead to disciplinary penalties for violators, but should not affect the determination of the admissibility of evidence.

Not all deviations from the requirements of the Code of Criminal Procedure, including fatal ones, are significant for the collection and verification of evidence

Commentary on Article 75 of the Code of Criminal Procedure of the Russian Federation

1. Admissibility is the compliance of evidence with the requirements of criminal procedural law, i.e. whether it has due process. Deviation from this form may lead to the inadmissibility of evidence, i.e. deprivation of its legal force and impossibility of using it in the process of proof. In part 1 room. article, the inadmissibility of evidence is associated with a violation only of the requirements of the Code of Criminal Procedure itself, however, according to Part 2 of Art. 50 of the Constitution of the Russian Federation “in the administration of justice, the use of evidence obtained in violation of federal law is not permitted.” The Constitution, therefore, recognizes as inadmissible evidence collected by subjects of evidence in violation of any federal law, and not just the Code of Criminal Procedure. In the event of a conflict, a constitutional norm has an advantage over an industry norm, therefore Part 1 of Art. 75 of the Code of Criminal Procedure should, in our opinion, be interpreted broadly - in accordance with the text of the Constitution of the Russian Federation. Otherwise, evidence obtained by the investigative body, for example, as a result of illegal operational-search activities and formalized in external compliance with the criminal procedural form, could be considered admissible. For example, operational employees of the investigative agency carried out a test purchase of a narcotic substance with subsequent entry into a home against the will of the persons living there without obtaining prior permission from the court, despite the fact that this is required by Part 2 of Art. 8 Federal Law “On operational investigative activities”. If the narcotic substance obtained during such a purchase and the banknotes found on the seller were examined in compliance with procedural rules, then in the literal sense the com. Articles of the Code of Criminal Procedure, they should have been recognized as admissible evidence, since the requirements of this Code were not formally violated. However, this contradicts the Federal Law “On Operational-Investigative Activities” and the Constitution of the Russian Federation, therefore evidence collected in this way is actually unacceptable. Otherwise, it may lead to the replacement of procedural actions with operational investigative ones for the purpose of illegally obtaining future evidence, when the procedural form is used as a “screen” for violating the constitutional rights of an individual.

The same problem arises in connection with the use of equipment, tools, devices and techniques by specialists and experts. According to Part 1 of Art. 13 of the Law of the Russian Federation of April 27, 1993 N 4871-1 “On ensuring the uniformity of measurements” state metrological control and supervision, carried out to verify compliance with metrological rules and norms, apply, in particular, to measurements carried out on behalf of the court, prosecutor’s office, arbitration court, government bodies of the Russian Federation. That is, expert methods and equipment associated with any measurements must comply with the requirements of state standards in the field of measurements, and measuring instruments and other equipment used by specialists and experts during investigative actions must be certified. Violation of these requirements should entail the recognition of the evidence obtained as inadmissible.

2. In part two com. The article provides an open list of cases when evidence should be declared inadmissible. Thus, inadmissible evidence includes the testimony of a suspect or accused given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by him in court (clause 1, part 2, article 75). This provision serves as an important guarantee against self-incrimination and admission of guilt by the accused and suspect under the influence of physical or mental violence, the use of which, thanks to this norm, practically loses all meaning. It is noteworthy that the condition of the absence of a defense attorney also includes the refusal of a defense attorney by the accused or suspect himself. In this way, a barrier is put in place to the attempts of unscrupulous investigators and investigators to persuade the accused and suspect to formally voluntarily refuse a defense lawyer, which is usually followed by a forced refusal of a defense lawyer or an illegal attempt to “exchange” confessions to alleviate the situation of the accused or suspect (a promise not to use preventive measures, detention, assistance in terminating criminal prosecution, etc.). At the same time, it is prohibited to reproduce the testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by him in court, by interrogation as a witness, interrogator or investigator who carried out the inquiry or preliminary investigation <1>.

——————————— <1> See: Determination of the Constitutional Court of the Russian Federation dated 02/06/2004 N 44-O on the complaint of gr. Demyanenko V.N. for violation of his constitutional rights by the provisions of Articles 56, 246, 278 and 355 of the Code of Criminal Procedure of the Russian Federation // RG. 04/07/2004. N 71.

Judicial practice broadly interprets the norm of Part 2 of Article 75 of the Code of Criminal Procedure of the Russian Federation, extending it to cases of absence of a teacher or psychologist when receiving testimony, when his participation by force of law (Article 425 of the Code of Criminal Procedure of the Russian Federation) was mandatory <1>.

——————————— <1> See: paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01.02.2011 N 1 “On the judicial practice of applying legislation regulating the specifics of criminal liability and punishment of minors” // Bulletin of the Supreme Court of the Russian Federation . 2011. N 4.

3. In paragraph 2 of part 2 com. The article confirms the prohibition on the testimony of a victim or witness if it is based on a guess, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge. At the same time, unlike the testimony of a witness, the legislator did not consider it necessary to declare the testimony of the victim inadmissible if he cannot indicate the source of his knowledge. Actually, testimony without reference to a source of knowledge is testimony “by hearsay.” In our opinion, in this case there is a gap in legal regulation. Taking into account the general principle of direct examination of evidence, which prohibits the use of data whose original source is unknown, it should be concluded that in fact the legislator, in relation to the testimony of the victim, should have had in mind the same restriction on the use of hearing testimony as in relation to the witness. Therefore, it seems that this prohibition, by analogy with the law, is lawfully extended to the testimony of the victim.

Guesses and assumptions on which it is prohibited to base the testimony of a witness are logical conclusions that the witness makes from any facts known to him. However, they cannot have direct evidentiary value, because only information about facts, but not conclusions drawn from them, are considered evidence. The latter relate to the content of the assessment of evidence, which, according to the law, only judges, jurors, as well as the prosecutor, investigator, and interrogator are authorized to do (Part 1 of Article 17). Information provided by a witness that has a probabilistic form should be distinguished from guesses and assumptions: for example, that it seemed to him that there was a knife in the suspect’s hand, although he cannot say this for sure; that the speed of the car he observed was approximately 60 - 70 km per hour, but he finds it difficult to say more precisely, etc. Such data is admissible as evidentiary information, although, like any other, it is subject to critical assessment in conjunction with all other evidence in the case from the point of view of its reliability. On the contrary, if, for example, a witness who appeared at the scene of a traffic accident after the accident claims that, in his opinion, the car was moving along the oncoming lane of the road, since this was indicated by the wheel tracks he saw, then his testimony regarding the movement of the vehicle means in the oncoming lane are only an assumption and do not play an evidentiary role. However, this, in our opinion, does not mean that such information should not be recorded in the investigative protocol at all. Sometimes it can have an important guiding value for building versions and collecting evidence, and in the future it helps to assess the comprehensiveness and completeness of the investigation.

4. According to paragraph 3 of part 2 of this article, all other evidence obtained in violation of the requirements of the Code of Criminal Procedure is also inadmissible. It is often believed that any procedural violation, e.g. deviation from literally any prescription contained in the rules of law concerning the collection and verification of evidence leads to the loss of the quality of admissibility of the information obtained in this way. It should, however, be taken into account that the speech is in com. The article deals with violation of the requirements of the Code as a whole, and not of its individual provisions. If the law provides for means and methods by which it is possible to neutralize the consequences of violation of its individual provisions by proving that they did not affect compliance with the principles of criminal proceedings, then with the successful use of such means and methods it can no longer be said that such evidence was used to prove a violation law. For example, failure to warn a witness about his right not to testify against himself and his loved ones is undoubtedly a very serious procedural violation. However, if it is proven (including by the witness’s own explanations) that this did not in any way affect the voluntariness of the testimony given by him, and therefore the preservation of equality of the parties, the court, it seems to us, has the right to recognize the testimony received as admissible.

Thus, in a criminal case against Ts., his defense lawyer demanded that the protocol of the inspection of the crime scene be declared inadmissible on the grounds that Ts., who was present during the inspection, was not explained his right not to incriminate himself, provided for in Art. 51 of the Constitution of the Russian Federation. The Supreme Court of the Russian Federation recognized the defense lawyer's arguments as untenable due to the fact that Ts. refused to give any explanations, that is, he actually took advantage of a right that was not explained to him <1>.

——————————— <1> See: Cassation ruling of the Investigative Committee according to the UD of the Supreme Court of the Russian Federation dated 08.16.2006 N 7-O06-15.

It cannot be argued that such evidence was used by the court in violation of the law, since it was with the help of the means and methods provided by law that the procedural violation was neutralized. Violations that can be rebutted should, in our opinion, be considered removable, or refutable. On the contrary, if it is established that the distortion of the procedure has led to real damage to the principles of adversarial proceedings, its results in any case should be considered legally void, and the violations committed cannot be eliminated. It is impossible to eliminate, for example, such a violation as obtaining a confession from the accused by subjecting him to torture or cruel, inhuman or degrading treatment. As a result of this violation, the process no longer met the requirements of a fair trial, where the parties should be on an equal footing. It is impossible to compensate justice for such cruel damage. At the same time, not all procedural violations (even fatal ones) committed during the proceedings are significant for obtaining evidence. Thus, the presence in the room where a judicial investigation is taking place of persons under the age of 16 is a procedural violation (Part 6 of Article 241), but is not essential for obtaining evidence, and therefore cannot destroy its admissibility.

5. According to Part 1 of Art. 125 “decisions of the inquirer, investigator, prosecutor to refuse to initiate a criminal case, to terminate a criminal case, as well as their other actions (inaction) and decisions that can cause damage to the constitutional rights and freedoms of participants in criminal proceedings or impede citizens’ access to justice may be appealed to the court at the place where the preliminary investigation was conducted.” In accordance with Part 2 of Art. 50 ch. 2 (“Rights and freedoms of man and citizen”) of the Constitution, the constitutional right is, in particular, the exclusion from the process of evidence obtained in violation of the law. Consequently, illegal actions or inaction of the investigative bodies and the prosecutor, as well as their decisions when obtaining evidence, taken in violation of the law (on inclusion in the case, on forced examination, examination against the will of persons, etc.), can be appealed to the court with requirement to exclude relevant illegally obtained evidence. It seems that the refusal to satisfy requests to collect relevant evidence can also be appealed to the court, since this violates, firstly, the constitutional right (Part 4 of Article 29 of the Constitution) to freely seek information, and secondly, international norms and standards (for example, the right to have adequate opportunities to prepare one’s defense; the right to a confrontation (subparagraphs (b) and (d) of paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms). It should be noted, however, that in Currently, judicial practice, unfortunately, as a rule, rejects such a literal interpretation of these norms.See about this.com to Article 125 of this Code.

6. According to Part 3 of Art. 14 all doubts about the guilt of the accused, which cannot be eliminated in the manner established by this Code, shall be interpreted in favor of the accused. In our opinion, this rule also applies to the interpretation of doubts regarding the admissibility of evidence. Thus, if an investigator, prosecutor, inquiry officer, or court received evidence exonerating the accused in violation of the legal order, it, at the request of the defense, must be declared admissible, because in any case it raises certain doubts about the guilt of the accused (the so-called asymmetry in the assessment of evidence). The burden of proof in case of errors of the prosecution cannot be placed on the accused. Otherwise, the issue must be resolved when the defense presented evidence that it itself obtained in violation of the law. In these cases, evidence may be declared inadmissible, provided that the violation of the law by the defense is proven beyond a reasonable doubt by the prosecutor. The basis for this conclusion can be not only Part 1 of Art. 75 of the Code of Criminal Procedure, but also a constitutional norm establishing that everyone has the right to freely seek, receive, transmit, produce and distribute information only in a legal way (Part 4 of Article 29 of the Constitution of the Russian Federation). However, the court’s acceptance of such evidence does not exclude its assessment from the point of view of reliability, including taking into account the nature of the violations committed during its collection.

Problems of asymmetry in the application of rules of admissibility of evidence

In judicial practice, there is a problem of asymmetry in the application of the rules of admissibility of collected evidence. The essence of the issue is to determine the varying degrees of legal consequences for the parties involved in legal proceedings - defense attorneys and prosecutors in cases of discovery of a violation committed during the collection of evidentiary information. The provisions of the Code of Criminal Procedure require that all irreducible doubts about the guilt of persons accused of committing crimes be interpreted in their favor.

Important! This rule also applies to the interpretation of the admissibility of the collected evidence - the advantage in this matter should be on the side of the defense.

For example, if procedural deviations in the collection of evidence led to the receipt of information that exonerates the suspect, such materials should be recognized in accordance with the submitted requests of lawyers as admissible for consideration in court. The basis for this is the emergence in such cases of significant doubt about the guilt of the accused person. In general, the consequences of errors made by the investigation during the collection of evidence cannot be assigned to the suspect. However, at the same time, the court must objectively assess the reliability of the information provided by the investigative authorities, all violations of the legality of the procedure for collecting, receiving, and verifying such information.

The court must objectively assess the reliability of the information provided

Otherwise, the rule of asymmetry will be applied in determining the admissibility of evidence of the defense if it was collected with significant violations of the law. If the prosecution proves the illegality of the actions of the defendant’s defenders, the significant and irreparable nature of the consequences of the violations, and the evidentiary materials presented by them will be declared inadmissible.

Important! If the defendant's lawyers obtained alibi evidence from witnesses using the method of threats and intimidation, this will be proven by the prosecution and such exculpatory evidence will be determined to be inadmissible and without legal force.

The first consideration of the case in court on its merits by a single judge.

This consideration of the case in the court of first instance can be characterized as the most productive, in terms of the work of the defense, to prove the innocence of our clients.
Firstly, the judge, giving him his due, ensured that the case was considered comfortably for all parties and that it was adversarial;

Secondly, the state prosecution was supported not by the specialized prosecutor’s office supervising the investigation, but by the district prosecutor’s office, which, in any case, would not be responsible for the outcome of the trial;

Thirdly, the investigation and the prosecutor's office let the case take its course. The prosecution witnesses, the operational officers who carried out the arrest, were, in fact, not ready to answer the defense lawyers’ questions in detail, began to get confused about the circumstances, and made up their own versions during the interrogation.

As a result, their contradictory testimony was included in the minutes of the court hearing. Later, thanks to this, part of the prosecution’s evidence was considered inadmissible by the court and was excluded.

The request to exclude evidence was filed at the end of the judicial investigation. This moment was chosen specifically, because violations of the requirements of the Code of Criminal Procedure of the Russian Federation were confirmed, for the most part, by the testimony of witnesses and persons participating in investigative actions. Making such a motion too early would not achieve its purpose.

In addition, the motion to exclude evidence provided a brief assessment of these documents for the court, with a view to the parties' arguments.

Let me briefly analyze the main evidence that we declared unacceptable and subject to exclusion:

First of all, a protocol for examining the scene of the incident .

The protocol for examining the scene of an incident for such categories of cases has special evidentiary value, because is "the first bone in a series of dominoes".

The physical evidence seized during this investigative action formed the main chain of evidence for the prosecution in the case.

Thus, the seized samples of diesel fuel were examined by the conclusion of an expert on fuels and lubricants; the car, in the back of which there were barrels of diesel fuel, was examined according to the inspection protocol; the seized diesel fuel received a valuation, which means the amount of damage appeared, etc.

It is natural that we directed all our efforts to recognize the protocol and the specified investigative action as unacceptable evidence.

The inspection report of the scene of the incident was declared unacceptable for the following reasons:

• violation of the procedure for conducting investigative actions provided for by the Code of Criminal Procedure of the Russian Federation;
• the presence of significant contradictions in the protocol regarding the content of discovered and seized material evidence;
• During the inspection, in fact, a personal search of our clients was carried out, because some of the seized material evidence was with them, in their personal belongings;
• one witness was absent for a long time during the inspection;
• During the inspection, operational employees participated who carried out legally significant actions (video filming, taking comparative samples, etc.), but they were not indicated as participants in the protocol.

Following common sense, in the petition we insisted on excluding not only the protocol for the inspection of the scene of the incident, with a photo table, but also the material evidence that was seized by this protocol, as well as all other evidence directly related to their study (the conclusion of an expert on fuel and lubricants, the inspection report cars, etc.).
Let's pause for a moment and return to the beginning of the trial.

The state prosecutor, when the protocol of the inspection of the crime scene was read out in court and it was revealed that it was not of sufficient quality to prove the guilt of our clients, most likely foresaw the course of our subsequent actions.

In this regard, I decided to restore the situation at the scene of the incident by calling the witnesses who took part in the inspection and questioning them at the court hearing.

The witnesses, having been interrogated as witnesses, began to give such testimony on the circumstances of the inspection that all participants, to put it mildly, “had their hair stand on end.”

In particular, they showed that the seals from the tanks of the locomotive were torn off by the operational employees themselves, when collecting comparative material from the indicated containers. Naturally, this was not reflected in the specified inspection report.

By the way, the prosecution presented the fact that there were no seals on the diesel locomotive tanks to the court as absolute evidence confirming the theft of diesel fuel.

In order to confirm the fact of the absence of a seal, during the preliminary investigation several witnesses were interrogated, who were employees of Russian Railways, whose duties included receiving the diesel locomotive from the drivers.

After the testimony of witnesses, the important evidentiary significance of this fact was lost.

Naturally, the prosecution did not like this arrangement.

As happens in similar situations, the state prosecutor, rubbing his hands, “gave birth” with standard questions to former witnesses: you gave the same testimony at the preliminary investigation; whether you have any significant contradictions in your testimony; Were you warned about criminal liability by the investigator for giving knowingly false testimony?

I think that the prosecutor later greatly regretted asking these standard questions in such cases.

The witnesses, without thinking twice, explained to the court that they were not interrogated at all during the preliminary investigation. These testimonies caused bewilderment among everyone, because... the case file contained protocols of their interrogations during the preliminary investigation, in which everything, almost word for word, was copied from the protocol of the inspection of the scene of the incident.

From the contents of these protocols it followed that they were interrogated by an investigator in the city of Ruzaevka (the witnesses themselves lived in another region, two hours away by train). Regarding the availability of these interrogation reports, the witnesses explained that they had never been to the city of Ruzaevka, especially on matters related to the investigation of this case.

The state prosecutor tried to somehow rectify the situation by offering them a possible version, when the investigator came to their home with a ready-made interrogation protocol and they signed it there.

The only point that the witnesses eventually remembered was that they signed for “local operas” on blank pieces of paper.

We concluded that they signed the tags to secure evidence.

When presented with the interrogation protocols, the witnesses showed that the signatures in them were not made by them.

The witnesses, even under pressure from the court and the prosecution, insisted on their testimony, which, I admit, was a good sign for us.

It was logical to assume from all this that the investigator, given the limited time frame for the investigation, which we “eaten up” thanks to his complaints during the preliminary investigation, was simply too lazy to go to another region to interrogate witnesses. At the same time, he hoped that with “such” baggage of evidence, the case in court would “go like clockwork,” so he decided on this adventure.

Legal guarantees for the identification and non-use of inadmissible evidence

The provisions of the Code of Criminal Procedure give persons suspected of committing a crime the right to petition for the recognition of evidence collected by the investigation as inadmissible if there are compelling reasons. Investigators, prosecutors, and interrogators have the right to determine the inadmissibility of evidence materials on their own initiative. Such evidence must be excluded from the indictment or report.

Investigators, prosecutors, and interrogators have the right to determine the inadmissibility of evidence

Any actions or inactions of the prosecutor's office, investigative bodies, for example, refusal to initiate a case, which could lead to a violation of the rights and freedoms of participants in legal proceedings guaranteed by the Constitution or limit their access to fair justice, may serve as grounds for appeal to the court at the place where preliminary investigative actions are being conducted. . The law guarantees the exclusion from judicial proceedings of evidence collected in violation of the law and deemed inadmissible.

Refusals to satisfy a petition to declare the inadmissibility of information obtained illegally can also be appealed in court, since such actions violate the rights given by the Constitution to freely seek and receive information, and international legal norms to fully prepare for protective actions in court.